The Qualitative Research On The Stealthily Substitute Behavior Of The Carrier In Transit

The crime of duty encroachment is a crime derived from corruption of offence. Thecrime of duty encroachment has been added into Criminal Law since Criminal Lawwas emended in1997, which provides a powerful guarantee for the protection of thelegal rights of the market entities (including companies and enterprises etc).However,argument over the naming of this crime has never been stopped from the beginning oflegislation on Criminal Law until now. There are many questions that are bothering usfor long.Such as, whether “illegal possession” can be interpreted extensively, whatthe correct implication of “duty” is, whether the highest punishment of the legallyprescribed punishment of this crime is too low so as to cover up the criminals, andunder what kind of conditions the criminals “can” be punished confiscation ofproperty. With the fast development of social economy, people pay more and moreattention to money. Thus, money has become an important indicator to value whetherone is well-being. Before the appearance of The Criminal Law Amendment (Ⅷ), thehighest legally prescribed punishment of the crime of duty encroachment is15years,which made some people take the risk of been put into prison for the sake of thehappiness of their relatives. The Criminal Law Amendment (Ⅷ) raised the mostsevere punishment to20years. This change reduces this kind of phenomenon to someextent, but the legally prescribed punishment of the crime of duty encroachmentcannot be a valid deter to the potential offenders. The limited rise of the legallyprescribed punishment cannot prevent crimes effectively, which brings high risks tothe property of enterprises and companies as well as obstructs the development ofmarket economy. So, the completion of the crime of duty encroachment is a must.This paper comes in four parts, based on the study the case of the dutyencroachment case by Mr. Guo, summarizes the disputes laying behind the case inorder to find out the focuses of this case and puts forward proposals to the impletionof the crime of duty encroachment to overcome its flaws.The first part introduces the basic condition of this case, summarizes the focusesof this case, including four opinions over this case of fraud, contract fraud, dutyencroachment and theft and elaborates their theory foundations briefly.The second part is the theoretical analysis of this paper. This part makes an analysisfrom three aspects based on four different opinions. It first analyzes the reasons of the conviction of fraud and contraction fraud,introduces the concepts and constitutes of fraud and contraction fraud; then it analyzesthe reasons of the conviction of theft, and discuss the means and features of stealthilysubstitute behavior through the analysis oftheft and fraud; it last analyzes the reasons of the conviction of duty encroachment,mainly interprets the concept, connation, analogical methods and judging standardsfrom the angle of the judgment of convenience of position.The third part is the conclusion of this case. This part is the author’s own opinionon choosing the correct accusation of this case through the theoretical analysis above,and introduces the reason of the accusation of duty encroachment from two aspects.The fourth part introduces the flaws of the crime of duty encroachment existing inthe regulations, and brings forward several suggestions to overcome these flaws.