Discrimination Between Crime Of Misappropriation By Taking Advantage Of Duty And Crime Of Misappropriation

Crime of misappropriation by taking advantage of duty and crime of misappropriation belong to the same chapter in the criminal system in our country and the order of article of law is connected back and forth and there is something in common between the two. Therefore the lack of definite legal provision on the “Unit” of the crime of misappropriation by taking advantage of duty in the judicial practice often results in the debate over whether the illegal possession in the same case constitutes crime of misappropriation by taking advantage of duty or crime of misappropriation, such is the case listed in this paper. This paper indicates the debate in the case, elaborates the cognizance of unit in crime of misappropriation by taking advantage of duty, whether the privately or individually-owned business belongs to the unit, and the understanding on the staff in the unit taking advantage of convenience of position and the cognizance on the refusal to refund in the crime of misappropriation and finally determines the nature of the case.In addition to the introduction, this paper is composed of four parts, about 23,000 words.Part One introduces the basic information of the case, including the facts in Wang's misappropriation case, the whole process of the case, the debate and the controversies and opinions on the determination of the nature of the case.Part Two makes jurisprudential analysis on relevant issues, including the understanding and cognizance of the crime of misappropriation by taking advantage of duty, the understanding and cognizance on the crime of misappropriation, focusing on the cognizance on the unit in the crime of misappropriation by taking advantage of duty, whether the privately or individually-owned business belongs to the unit, the understanding on the staff in the unit taking advantage of convenience of position and the cognizance on the refusal to refund in the crime of misappropriation and the comparison between crime of misappropriation by taking advantage of duty and crime of misappropriation.Part Three comes to the conclusion of the case. According to the aforementioned jurisprudential analysis, this part elaborates in the case the privately or individually-owned business falls out of the unit in the crime of misappropriation by taking advantage of duty and thus the act of Wang constitutes the crime of misappropriation.Part Four proposes the enlightenment, puts forward the problems existing in the practice, and some immature suggestions of the author, hoping to be conducive to the future practice.