On The Judicial Determination Of The Crime Of Embezzlement

Theft and embezzlement as a type of property crimes in the judicial practice, there aredifferent elements and improper with unjust enrichment in civil law. The main characteristicsof theft in objective aspect is to occupy others’ property illegally steal the secret means takeforcible possession of, occupy the main characteristics of objective aspect of the crime is theone previously obtained by legal means possession of the entrusted matter, forgotten, buriedillegally for himself, both have a certain distinction on criminal object. Unjust enrichment ofcivil law refers to the non legal reasons the benefits, resulting in the loss of others. Unjustenrichment of people there will be unjust enrichment to the loss of the obligation, or theyshould be evaluated in civil law of negation.In general, as long as the basis of their three constituent elements can be clearlydistinguished. But in the judicial practice, more and more cases showed theft, embezzlementand unjust enrichment intertwined situation, on the behavior qualitative relation to behaviorperson should bear criminal responsibility or liability issues, at this time should be how toqualitative is especially important.The key of theft and embezzlement distinction lies in thecriminal object, the criminal target of larceny is possessed by another property, the object ofthe crime of embezzlement is the only act of personnel to have the legal possession of theentrusted matter, forgotten and buried. At the same time, illegal possession time different isthe key influences on the two distinguishing. When unjust enrichment and embezzlement,theft intertwined, concurrence of civil liability and criminal responsibility, we should be out ofmisunderstanding of criminal and civil non-interference, aware of the unjust enrichment ofcrime and related property is the cross relationship, consider the subjective and socialharmfulness behavior, only minor violations of property act before considering the use of civillaw regulations, if the act has serious social harm and subjective evil, then the behavior mayset up theft or embezzlement, not because of the behavior of the unjust enrichment in civil law,criminal law will exclude the intervention.This paper will combine with the practice in the emergence of the "Liu embezzlementcase" to specific qualitative analysis on cross the criminal and civil law, starting from thefocus of controversy, the specific analysis of objective behavior, the implementation of theactor’s subjective attitude and behavior.The full text is about twenty thousand words, consists of four parts: The first part is the basic condition for case. This part is divided into the introduction, thecase, differences of opinion and controversial focus of four small parts, including introductionof specific cases as well as for Liu how to determine the behavior of different opinions andreasons constitute unjust enrichment of civil law, constitute the crime of theft orembezzlement. Summed up the focus of controversy in this case has three main points: First,controversial to distinguish unjust enrichment, theft, embezzlement; Second, to Liu is legallyacquired ownership of motorcycle in doubt; Third, when Liu of the purpose of illegalpossession is generated.The second part is the legal analysis section. This part mainly introduces the differencebetween unjust enrichment of the Civil Law and the crime of theft, embezzlement, and thenintroduces the object of crime, the crime of theft and embezzlement crime objective andsubjective elements of character, and the crime of theft and embezzlement do division, thetwo in the criminal object, the behavior way of the purpose of illegal possession and producetime varying.The third part is the conclusion of the case. This section will mainly related to thecombination of legal and specific cases, analysis of Liu’s behavior is not established in the lawof unjust enrichment, also does not constitute the crime of theft, Liu’s behavior shouldconstitute the crime of embezzlement.The fourth part is the case study of enlightenment. This part mainly reveals thesignificance of the study lies in how the case in judicial practice in the civil and criminal crosscase accurate qualitative, because of the characteristics of the crime of embezzlement, suchcases with civil law and criminal illegality, the judicial personnel shall change the punishmentnon-interference of thought, from civil and criminal overlap angle clearly recognized civil andcriminal cross boundaries in some system, do the subjective and social harmfulness sizecombined with the facts of the case specific analysis of human behavior in the determinationof nature of behavior, is not simple because the behavior constitutes a civil offense excludesthe criminal law.