Research On The Legislative Improvement Of Crime Of Embezzlement

The1997Criminal Law of our country added the crime of Embezzlement at theitem of the270th, and it had a huge of positive effect. But it can not adapt the complexedbehavior of Embezzlement because of its sweeping and summary expression and lackingof the legislative interpretation and judicial interpretation. As a consequence, both of thetheory and the practice exist many different points and the defect increasingly obvious onthe legislation. According to the current regulation on the Embezzlement of our CriminalLaw and our judicial reality, this article tries to use the comparative method and referenceto foreign experience on the Embezzlement legislation to put forward to the legislativeproposal. The article is divided into three parts:The first part is the defect of our Embezzlement legislation. On the base of ourcurrent Criminal Law, the author points out the legislative defect on the species division,the object, the behavior, the penalty regulation and the telling system of the crime. Firstof all, the species dividion of the crime is not scientific, the two different behaviors arecovered under the same offense. The second, the object is not comprehensive, there existsinadequation on the fiduciary properties of other people, the forgotten properties, theother properties which out of possession, the buried properties. The third, the behavior isnot comprehensive, it is easy to have too broad or narrow understanding of takingcustody of other people’s properties; it is inconvenience to the judicial practice becauseof the problem of refusing to return or surrender on the legal status and the deadline. Thefourth, the penalty regulation is unreasonable, there is no clear standard of large amountsor huge amounts; it exists ambiguity when we reference to the penalty regulation and wehave not enough attention on the fine punishment. The last, the telling system is notscientific, the litigation form is single and lacks of exception rules and it lacks necessarylimit on the scope of the victim’s telling right.The second part is the comparison research on the foreign country legislation ofEmbezzlement. The author introduces the survey of other countries on this crime andmainly compare with Germany, Japen and Taiwan. The author introduces their owncharacteristics and analies the defect and the advantage on the denotation of the crime,the object of the crime, the behavior of the crime, the penalty regulation and the telling system. The author hopes these can give us some reference and we can improveEmbezzlement legislation soon.The third part is legislation perfection of Embezzlement. The passage demonstratesthe defect of our Embezzlement legislation, references to the experience in overseas andalso combines with our judicial interpretation, points out some advice: The first,re-definite the crime of Embezzlement according to the different crime object, divide thiscrime into two crime: Common Embezzlement and Out of holding Embezzlement. Thesecond, add the public properties, the forgotten properties, the other properties which outof possession into this crime, make clear the range of the buried properties. The third,substitute “possess at first” for “take care of on behalf”, definite the status on the crimeelement and the time benchmark of the behavior of refusing to return or surrender. Thefourth, add clear regulation on the legal punishment system, cancel the citing legalpunishment and re-construct the legal punishment system on the base of different crimeobject, pay more attention to the fine punishment. The last, add the exception of publicprosecution procedure and restrict the victim’s scope that using telling right properly. Theauthor hopes that these advice are helpful to the legislative improvement ofEmbezzlement.