Research On The Regulation Of Infidelity In The Criminal Law

With the recent development of market economy and the raising economic level,social division of labor has become more refined and specialized. An increasing numberof enterprises and individuals has become the main body of market economy and gotinvolved in economic activities. However, most participants cannot finish some specialand professional economic work by themselves. Thus they tend to authorize individualswith professional knowledge and skills or qualified agencies to complete the work ineconomic activities. Driven by interests, those individuals and agencies that are entrustedmight breach the fiduciary duty, which causes the perfidious behavior in various andmultiple types. Although relevant accusation of the perfidious behavior has drawnpeople’s attention, it is not reflected in relevant provisions of the existing laws andregulations. Present accusations of breach of trust in special types are limited in terms ofbehavioral agents and patterns, which lead to loopholes and flaws during the process ofpractical application. This thesis suggests that on the basis of improving laws andregulations related to special breach of trust, we need to make up for the loopholes andimprove criminal legislation by the establishment of accusation of breach of trust inChina’s specific provisions of Criminal Law.This article is divided into four parts:The first part defines infidelity. Through interpretation and analysis of five maindoctrines of the nature of infidelity, this paper defines that: infidelity refers to the actor’sbehavior of undermining internal trust relations between the principal and the actor’sbehavior of damaging principals’ property due to the failure to safeguard the principal’sbest interest during the process of property transaction agency. On this basis, three basiccharacters of infidelity can be summarized. Firstly, the actor accused of infidelity refersto “an individual who does transactions for others”. Secondly, infidelity breaches“internal trust relations”. Thirdly, infidelity is usually involves a large amount of propertyand interest.The second part introduces the extraterritorial instigation of rules and regulationsrelated to criminal laws. The first part divides infidelity into the ordinary type and thespecial type. For ordinary infidelity, the world history of criminal law witnesses only a handful of countries that established independent accusation of breach of trust. Breach oftrust in Germany and Japan is quite typical. Constitutive requirements of breach of trustin German penal code are divided into two categories: the perfidious requirements andabuse requirements. Abuse requirements refer to the actor’s behavior of violating rulesand regulations or the purpose of the right, which causes damaging results to the propertyowner. The perfidious requirements mainly refer to the actor’s violation of caring duty.Japan uses relevant provisions of German legislation for reference with its ownindependent features such as requirements of subjective purposes of the actor. For specialperfidious behavior, some countries stipulate them in the specific provisions of criminallaw and some stipulates in the accessory criminal law.The third part states current situation and problems of criminal law in China.Though different in stipulations of infidelity in countries, basic behavioral patterns aresimilar. And the nature of infidelity is the violation of internal trust relations between theactor and the principal. Therefore, the author holds the idea that there are five accusationsof breach of trust exist in the specific provisions of Criminal Law. At present, China’sCriminal Law has obvious loopholes in terms of infidelity. Firstly, it lacks rules andregulations of ordinary infidelity. Secondly, limitations exist in setting of behavioralagents of five special infidelity and behavioral patterns. Finally, the legislation mode ofinfidelity is legislative mode is enumerative, which will inevitably undermines theorganization of the terms.The fourth part gives some proposals about improving criminal law in terms ofbreach of trust. As the threat perfidious behavior poses to our society, sufficientpunishment of crime and loopholes in China’s criminal law, the author suggests that weneed to establish accusation of breach of trust in the specific provisions by amendmenton the basis of adjustment of existing special components of breach of trust. In addition,referring to extraterritorial legislation, this thesis puts forward some ideas about chargesof breach of trust in an indictment and corresponding punishment.