Identify The Job Occupation Crime Of Unit Staff And Using The Convenience Of His Position

With the sustained and rapid economic development, many economical forms coexist in China, especially mixed economy. At the same time, the job occupation behaviors in judicial practice increasingly diverse, and the behavior of getting property from state-owned property is gradually spreading to get property from other forms of non-state job occupation. Although our country’s criminal law has corresponding law provisions on job occupation crime, while there are lots of controversial problems in theory and practice because of the delay of legislation, the complexity of social life and the defects of current judicial interpretation. This essay attempts to raise relevant theories of job occupation from a typical case. The key of this essay is to understand and recognize some concepts of job occupation crime, for example, “unit person”、 ”using the convenience of his position” and “the property of this company”. This whole essay is divided into four parts:The first part: mainly introduce the related issues of this case. This part consists of four parts, they are the cause of action、simple introduction of the case、different ideas and focus of the dispute. This section describes the objective circumstances of the case, the case involves charges of fraud, official embezzlement or official embezzlement and fraud several crimes. The controversy is mainly focus on how to understand related crimes “unit person”、 ”using the convenience of his position” and “the property of this company”.The second part: theoretical analysis of related issues. This part pays attention to the study of this article which analyzes the related problems of the case. Focusing on the description of the understanding and recognition of “unit person”、”using the convenience of his position” and “the property of this company”, the author combines the view of scholars both at home and abroad, and then puts forward her own opinion and provides theoretical support for the analysis conclusions of the third part.The third part: The analysis conclusion of this case. This part will combine the view from the second part with this case. According the relevant laws, author can make conclusions of this case: Xu’s former behavior constitutes the official embezzlement and the after conduct constitutes fraud because he has two independent deliberately implement on two separate acts of criminal law. His two behaviors have no involved or absorbed relationship; Based on this, he should be punished simultaneously caused by the fraud and official embezzlement.The fourth part: Study on the implications of this case. This section focuses on the existing dilemma of the recognized standards about the subject of crime in job embezzlement. The author suggests that judicial interpretation should be specified: The position of job occupation crime can include labor convenience, as long as the relationship of management and managed has been formed between the actor and the commissioned. Even according to the "Labor Law" stipulates that someone who does not belong to the unit’s internal staff may also constitute the subject of job embezzlement. The author proposes when fraud and embezzlement intersect, the key point to distinguish is whether the perpetrator has already controlled the property when being deceived.