Research On Perplexed Problems Of The Crime Of Embezzlement

With the development of social economy, the social relations and property relations are increasingly complex, the purpose of taking actions to who committed property crimes not only lies in imposing penalty on perpetrators to relieve the suffer they bring to us, but also in paying more attention to the protection of property rights violated by criminal act. Thus it is inevitable that a civil relationship and a criminal relationship would coexist in the same case, how to properly tackle this kind of problem have set a huge challenge to criminal law both in theory and practice.Although embezzlement, which occurs extremely rare in practice, is a kind of very marginalized crime in the property crime system, it indeed involves many complex problems relating to the foundation of the whole system of property crime. More important, it is the coordinated relationship between embezzlement and the civil law that reflects the orientation of the criminal law and the civil law in the whole legal order and their interactions, taking the meaning and the nature of in commendam, the relationship between the payment based on illegal reasons and embezzlement, and the relationship between unjust enrichment and embezzlement for example. These issues are related to the reference theory of civil law, which make it so complex and difficult to distinguish. Therefore studying these problems aroused from the judicial practice is not only the requirement of judicial practice, but also a good opportunity to exam and push forward the development of criminal law theory.This article clarify the dispute of cases during the judicial process and summarize the focus of controversies and draw forth the point of view to the problems in the circle of criminal law theory by centering on criminal legislation of embezzlement and real case in judicial practices. By analysis and evaluation of relevant theory, this article then points out the defects and insufficiency of the existed theory.And accordingly, author’s own views and opinions will be put forward. Although some cases happened long time ago, but I think some law principles reflected by these typical cases would never outdated, they could still provide guidance to our judicial practices at present and even in future.Chapter one is the analysis about in commendam. The viewpoint that in commenda must have the trust relationship confuses the Storage contracts in Civil Law. Whether it is based on the Criminal dogmatics or from the perspective of comparative law an, or discuss this topic from the protective function of criminal law. A trust relationship is not necessary for in commendam. On behalf of just illustrates that the object of in commendam is the others. In commendam is only in a state of management control. So whether in commendam is legal or not, it does not affect constituting embezzlement. Academic circles have a misunderstanding on the behavior object for embezzlement misunderstanding, entangled in the difference between forgotten property and lost property, to distinguish the forgotten property and lost property lacks a solid theoretical support, nor with the operating mechanism of The theory of constitution of crime. Forgotten property and lost property have the qualitative consistency, and both can be contained by in commendam. So there is no need to distinguish between the criminal law.Chapter two is aimed to explore the relationship between payment for illegal causes and the crime of embezzlement. Payment for illegal causes as an important civil stipulation has a close relationship with the crime of embezzlement. But this relationship does not mean that constituent elements interpretation of crime of embezzlement should be in accordance with the theory of civil law. Objective to construct the payment for illegal causes is illegal actors(the delivery)cannot get judicial relief, but the object of the criminal law discretion is not the delivery, but the recipient, precisely is the behavior of illegal possession. The civil law is an authorised law, its function is to adjust the relation between the equal subjects, and it aims to protect the private rights; criminal law is a right-control law, its function is to maintain well order of the whole country and society, it aims to express the negation and condemnation of the country by the criminal liability. The unity of law order cannot arrive to the conclusion of the monism of illegal. “The unity of law order” is not the same of every law in form or in logic, and should be the same in essence or in evaluation. Therefore, the behavior of embezzling property for illegal causes can constitute the crime of embezzlement in criminal law.Chapter three is aimed to explore the relationship between the unjust enrichment and the crime of embezzlement. The view which based on the restraining criminal law and The Second Rechtswidrigkeit think unjust enrichment in the civil law should not be regarded as the crime of embezzlement, this view ignores that rule of restraining criminal law is just a principal of legislation, and the first applicable law in The Second Rechtswidrigkeit should only be the imperative law.The civil discretion caused by unjust enrichment and the criminal discretion caused by the crime of embezzlement usually have the same object facts, so there is a overlap between criminal relationship and civil relationship, the overlap is the legal fact which give rise to the criminal relationship and civil relationship. The different discretion of criminal law and civil law caused by the same legal fact originally is coincidence of articles in diverse law. Moreover, the coincidence of articles directly causes the overlap of civil liability and criminal liability. Civil liability substantially is the debt, so it is unable to conflict with criminal law aimed to express the state negation of individual. In brief, if an action is regarded as the improper profit according to the civil law, it cannot affect the criminal judgment of crime of embezzlement.