The Analysis On Job-Related Crimes Of Village Cadres

Recently, the situation of the job-related crimes of the village cadres becomes morecritical. This criminal phenomenon is not only a challenge to the rule of law in China, but alsoseriously affects the smooth construction of the new rural. To curb this serious criminalsituation, the deep analysis study of this topic is particularly important. For this reason, thecase of the encroachment of the highway grants of the village committee andmisappropriation of land compensation costs have been chosen to the example to make adetailed reading of the legal issues related the job-related crimes of the village cadres.The paper is divided into five parts. The first part is to put forward the name of the case.It directly shows that the theme of this article is about the job-related crimes of the villagecadres, and that this article focuses on the study of the job-related crimes of the village cadres.Specifically, it is about the case of the encroachment of the highway grants andmisappropriation of land compensation costs of the village committee.The second part is the description of the case. It tells the specific circumstances of thecase. The case tells that the village cadres take the grants that the government has given to thevillage committee through the “false note”. The village committee director argues that he hasused the other nine thousand Yuan to give to the leader to ensure the grants. Besides, he hasused the crops compensation fee and the ground attachments fee of the land compensationcosts to gamble, not has returned until now.The third part is the focus of controversies, based on the fact appeared in the case. Theprosecution, the defendant and the judge proposed different views on the controversial places.First, for the nature of the encroachment of the highway grants of the village committeecadres, the prosecution considers it be the crime of corruption, because the management of thegrants of the village committee is "to assist the People’s Government to manage otheradministrative work". They are belonging to "the other people engaged in official businessaccording the law”, so the action of the occupation of grants is the crime of corruption. Thedefenders believe that the village committee is the owner of the grants, so its management ofthis fund is not to help the government. So the village committee cadres should not beregarded as national staff. So the action should not be the crime of corruption, but be thecrime of post embezzlement. The court supported the views of the defenders. Secondly, in thejoint crime, the amount of each accomplice in the crime should be how to identify? The prosecution thinks that it should be identified by the total amount of the crime, because inaccordance with the relevant provisions, the individual amount of the corruption should beunderstood the amount that he has obtained from the action that he has joined, has organizedor has directed the joint corruption. According to the principle of "guilt conceit", the defenderthinks that he can not be liable for the fault of the other accomplices. The court upheld theprosecution’s view. Thirdly, against the problem that who should bear the burden of proof toprove whether the defendant has used the nine thousand Yuan to give the leader to ensure thegrants, the prosecution believes that the defense opinion is proposed by the defendant, so theburden of proof is his own. But the defendant thinks that he has been in custody, lack theability to prove, so it should be the prosecution to investigate. The court held that after thetrial the prosecution has completed his burden of proof to prove the defendant is guilt, so forthe defense opinion of the defendant should himself to prove. Finally, for the problem thathow to identify the action that the defendant embezzles35thousand of the cropscompensation fee and the ground attachments compensation fee, the prosecution thinks theaction of management of this grants of the village committee cadres is to help the governmentmanage the land compensation fee according to the (d) of the Article93(2) of the CriminalCode. The committee cadres are "the other people engaged in official business according thelaw”. It should be embezzlement crime of public funds. But the defendant believes that thebehavior of the management of the money of the village committee actually is a kind of agentbehavior, just a proxy of the government management. So his behavior can only be identifiedas a tort. After the trial, the court believes that the village committee has told the villagers theway to allocate this fund, and that the villagers have been aware of their rights. So the natureof this fund has been converted personal property from the state-owned property. Themanagement of the village committee is their own activities, so the defendant HU can not beregarded as national staff, as only the crime of misappropriation of funds.The forth part is analysis and discussion. This part is the main part of the article, basedon the controversial factors and the detailed analysis of the theory of the law and theregulation and the law, it makes some opinions. At first, to determine whether it constitutes acrime of corruption, you have to determine whether they meet the subject of this crime.Especially, when the nature of the object of the occupation is very complex, it more needs todetermine whether the duty behavior of the village cadres is simple villager self-governmentactivities or to assist the government to do administrative activities. If it is the later one, they are "the other people engaged in official business according the law”, can be regarded asnational staff, so it is the crime of corruption, or it can only be the crime of postembezzlement. Then, In the complicity, when we determine the amount of the crime of eachaccomplice, theoretically, because the social harmfulness of a complicity is larger than the oneof individual crime, and according to the principle “consistence of the subject and the object”,each accomplice is focusing on the whole criminal object not only on the part he has obtained.Besides, it has defined this clearly on the law. Therefore, when we determine the amount ofthe crime, each accomplice should be determined by the whole proceeds of a crime not onlyhis actual obtainment. And then, for the fact in the defense opinion, when the defendant andhis advocate are lack of the ability of proof, the prosecution has the responsibility to save theproofs that can prove the defendant innocent based on the regulation of the law and the cluesto prove the fact that the defendant has afforded, so the prosecution should bear theresponsibility to save the proofs. The court can not make a conclusion only by the proofs thatthe prosecution has opposed to prove the defendant guilt, but to make use of all of the proofs.It can determine the action is guilt only when it has excluded the reasonable doubts. Next,when we judge the nature of the management of the property of the village committee, weneed to make a detailed analysis of the property. We also need to notice that the nature of themanagement will change when the action of the village committee has been changed by thechange of the nature of the property. It can eventually affect whether the village cadres are"the other people engaged in official business according the law” in the <Explanation>.Recently, the job-related crimes of the village cadres have the follow characters, the object iscomplex, the amount of the crime is very large, and the complicity is numerous except thecharacter that the identification of the criminal subjects is hard to identify. The reasons ofthese appearances are the restrictions of the village cadres themselves and the imperfection ofregulation system.The fifth part is about the conclusions and recommendations. Based on the detailedanalysis of the entire case across the full text, it draws the eventually convicted conclusions ofthe case. The five defendants commit the crime of post embezzlement, and they are in thecomplicity. The amount of each of them is fifty thousand Yuan. For the fact that the defendanthas argued that he has used the nine thousand Yuan to give the leader, the prosecution shouldto investigate it. The court should consider all of the proofs when it identifies the nature of thecrime. If it can be sure that the defendant HU has not used this nine thousand to give the leader to ensure the grant, the defendant’s activity should be identified as a crime of postembezzlement. But if he did, he should be innocent. And if the leader has been investigatedout that he did accepted this nine thousand though the clues that HU has provided, thedefendant HU will also be identified that he has the meritorious behavior, so he can get alighter or mitigated punishment. But if the court can not exclude the reasonable doubts, thedefendant should be identified innocent in accordance with the principle “innocent withdoubts”. The defendant also commits the crime of misappropriation of funds. He should getthe combined punishment. For the critical criminal situation of the village cadres, thegovernment should curb it through the measures like strengthening the prevention of thevillage cadres’ mind, improving the system of the regulation and improving supervision.