On The Behavior Of Embezzling Public Funds In Criminal Law Of China

The behavior of embezzling public funds refers to the state personnel who takesadvantage of his position to embezzle public funds for his own use.This behavior includes three conditions, they are taking advantage of one’sposition, embezzling public funds and for the actor’s own use. Taking advantage ofone’s position displayed as using the power within one’s duty, such as while the statepersonnel is in charge of, managing or operating or dealing with the public funds. Atthe same time, it can be performed as using the convenience which formed by thepower within one’s duty, such as overstepping or abusing one’s power. Embezzlingpublic funds means the actor violates the financial management system and changesthe original use of public funds unauthorized. Violating the financial managementsystem specifically expressed as going against the regulations about the principles,conditions and methods of the original use of public funds. Changing the original useof public funds unauthorized means the actor alters the original use of public fundsprivately without legal permission or approval. Embezzlement should be strictlydistinguished from borrow or use, the behavior of embezzling without using shouldalso be considered as embezzlement, too. For the actor’s own use involves thefollowing circumstances: one is providing public funds to the actor himself, hisrelatives or friends or other natural persons for use; one is providing public funds toother units for use in the actor’s name; another is providing public funds to other unitsfor use in the name of the actor’s unit as the actor’s personal decision for his personalgain.The objects of embezzlement are public funds and specific properties. Publicfunds includes funds owned by state, funds owned by all the laboring masses, fundsowned by private but being managed or used or transported by the state-owned units,and the social contributions or special funds which only used for poverty alleviationand other public welfare undertakings.The units’ own funds and clients’ funds ofnon-state-owned financial institutions and the funds of non-state-owned companies,enterprises and other units are included if the actor who works in aforementionedunits is an state personnel. Specific properties include the funds and materials whichallocated for disaster relief, emergency rescue, flood prevention, special caring,poverty alleviation, immigration and social relief. It also includes food, clothing, medicines, equipment, devices and other materials serving to the above items.Whether the behavior of embezzling public funds constitutes a crime depends onwhether the actor embezzles public funds for illegal activities, or embezzles arelatively large amount of public funds for profit-making activities or fails to return itafter the lapse of three months. Distinction between behavior of embezzling publicfunds and behavior of embezzling the funds of one’s own unit is their objects are notthe same, and the later can be expressed as loaning the embezzled funds to others.Distinction between behavior of embezzling public funds and behavior of embezzlingcertain funds or materials is that their objects and conditions are different, moreover,behavior of embezzling certain funds or materials requires a serious circumstance andcauses a major harm to the interests of the state and the people. Distinction betweenbehavior of embezzling public funds and corrupt practice mainly focuses on theirobjects and means, what’s more, corrupt practice violates the complete ownership ofpublic property.