Analysis Of Crime Of Embezzlement In The "custody" Elements

Since 1997, our country criminal law added 270 th the Crime of embezzlement, as Chinese criminal law only pure dear action, its main role is to regulate behavior of people holding preparation behavior of generation, the forgotten property and buried property, due to the relevance of the crime of embezzlement legislation expression illogic and civil law trickily in judicial practice, which causes confusion results.Primary elements of the crime of embezzlement "custody" understanding and definition of the crime of embezzlement crime to have a key role, because it is a prerequisite for the establishment of the crime of embezzlement. It is the difference between theft and embezzlement, the crime of plunder, robbery crime conditions. Because the judicial workers of "custody" understanding differences, will appear on the same case suitable charge disputes, some think that constitutes the crime of embezzlement, while others think that constitute a crime of theft, and even some that does not constitute a crime only by the civil law regulation. Many scholars and judicial practitioners recognize the seriousness of the problem, handmade research on the crime that books. Therefore, this paper on the basis of the existing legal, based on existing theory of the crime of embezzlement, taking "custody" as the core of study, the related problem is discussed, in order to help the judicial theory and practice. This paper is mainly divided into the following four parts:In the first part of the crime of embezzlement "custody" implications are discussed. First, list some academics on the "custody" authoritative views in this paper, through a comparative analysis of various theories, summarizes the main controversy problems, including "custody" is must be based on legitimate reasons, "custody" under the control of the relationship between property is what and the relationship between the establishment of the size range. Next, the author elaborates on the first two questions. "Custody" established range size is illustrated in detail in the second part. After the analysis, the author thinks that "custody" has not necessarily based on legal reasons. Finally, to the custody of property control relationship analysis, the author thinks that taking possession in the criminal law as the criterion of the most reasonable, through the comparison of the possession in civil law and criminal law in the.The second part the author analyses the "custody" establishment scope. According to the conclusion in the first part, the author first support "custody" should be adopted in broad sense relations. So based on the legal relations or according to the relationship between the facts of possession, the property of others is likely to become "custody". Then the author discusses what conditions can form "custody", classifies and discusses from the legal reason and reason of facts, clarify what can the establishment of "custody" relationships,and for what reason do.The third part, the author carries on the analysis to the custody of the object of property of others. Firstly, the author discusses the scope of others, to get reasonable conclusion. Next, the author analyzed the scope of the property, the main problem is the real estate, the species, and intangible, sealed property whether can become the object of the crime of embezzlement. Finally, the author re classification of the illegal reason property holds contained situation. And the author discusses each kind of situation, elaborated what circumstances can become the object of the crime of embezzlement.The fourth part, the author analysis "to take custody of property of others" and "forgotten, buried" "lost" relationship. The discussion of this issue will inevitably involve the "forgotten", "buried" reasonable division, which also inevitably involves the "forgotten" and "lost" concept comparison. Therefore, the author first discusses the "forgotten" and "lost", the conclusion is that the two are not the same, and then put forward the reasonable theoretical difference between the two. Secondly, the author discusses the concept of "buried", through the comparison of criminal law and civil law "buried" concept, a plausible range of criminal law of the buried things. Finally, the author expounds the "entrusted property" and " forgotten, buried object" relationship, and the relationship between it and "lost".