Research On The Objective Elements Of The Crime Of Official Embezzlement

Mature theory of criminal law must be required along with changes in the social environment of continuous improvement and development,besides the theory is rich and detailed to serve practice,what's more there are some criminal law theories have a very good response in judicial practice.On the one hand it is probably not a good practice to follow the pace of the theory of prosperity;on the other hand it is the indeterminacy of legislation and the blank or vague of judicial interpretation lead to producing different interpretation.In recent years,the rise of the Internet and the rapid development of online shopping makes convenient to obtain courier service become an essential part of people's work and lives.Meanwhile,with the development,public brought about a complaint rate to rapid growing delivery industry,such as express contraband,theft case courier,etc.,which resulting in shipment delays,damage and loss.But there are not a single standard of how to judge the behavior of deliverer in the application of criminal law.Then I choose to express the existence of related crimes in the field of several cases represented the "point of contention" as the starting point of this article,to study and reflect on embezzlement objective elements.And the qualitative behavior of the courier is only a part of the problem in the judicial practice of the crime in the process of identification[this crime refers to the embezzlement,but also so below.Part of the problems identified in the course of a microcosm.By analogy can not only provide reference for future interpretation of embezzlement,and the interpretation of legal theory,but also to explore the true purpose of legislation,so that to detailed analysis the objective of the constituent elements of embezzlement,with a view to benefit the theory and judicial practice of related crimes.In addition to the introduction,the paper consists of four parts.Details as follows:The first part,the introduction of embezzlement objective elements of the existing problems.What is the "take advantage of his position " is the core of the problem in the article.The behavior of people both stolen the package which not belong to their distribution area,but got a different verdict,which makes us doubt about the meaning or application scope of"take advantage of his position";case III and IV of the same case appear different co-contracting phenomenon,the courier stolen the packages in the field of his distribution,but has been completely different judgment,two cases' judgment is also different.So we need to further clarify what is "by taking advantage of his position," only by grasping its boundaryaccurately can we avoid such problems in judicial practice;Case 5 and Six cases lead to another controversial issue in the objective elements of the crime of embezzlement: the behavior of unlawful possession as a general point that contains "embezzlement,theft fraud and other means” or support the new trend recently only contains" misappropriation "behavior? Different understanding of this issue will directly lead to the conviction of the perpetrator of the huge gap between the sentencing,the introduction of the new sentencing standards had to let us rethink the focus has been tangled for a long time.Part II: the cognizance of "take advantage of his position".The understanding of "taking advantage of his position" is the key point to distinguish the crime of embezzlement and other crime,it is also the focus of the scholars on the crime of Embezzlement.Whether the position is equal to the authority,whether the job includes the business and whether it is equal to the work,which is the second part to be sort of content.There are several views on the use of convenience in position,I think we should keep eyes on “taking advantage of position” with development methods which includes business convenience,at the same time,I will use the cases of verdict as my argument basis in my paper;what's more,use the protection of the legal interests of crime to prove another views of the paper.Part III: the study of "illegal taking possession" behavior.In April 18,2016 the newly issued the Supreme People's court and the Supreme People's Procuratorate "on the handling of corruption and bribery criminal case applicable legal interpretation" of the embezzlement conviction and sentencing amount to make substantial adjustments:The larger the starting point of 60 thousand yuan;huge amount of starting point of $1 million.The major adjustment of the sentencing standards of the crime of official embezzlement makes us have to rethink whether the "comprehensive means" is reasonable in the past.In this part,the author introduces the relevant legislation of foreign countries and regions,so as to compare our country's Crime of Embezzlement with others countries and learn their reasonable parts.There are two main camps of "Illegal possession" in Duty Embezzlement:comprehensive means and single means.Two camps have their own point of view,on the basis of this,the author demonstrates in detail the drawbacks of the comprehensive approach and the feasibility of a single means.Part IV:Case analysis of express delivery.Theory always guides practice,after the demonstration of the meaning of “taking advantages of position”and “Illegal possession”behavior,it is necessary to analyze the cases mentioned in the first partdeliberately.Moreover,re-examining these judicial cases can forecast the practice of Duty Embezzlement in the post "criminal law amendment(nine)" era,so as to seek more reasonable judicial standards.At the same time,I looking forward the publish of clear judicial interpretation to define meaning of the main factors compose the Duty Embezzlement and clarify the behavioral patterns of the crime.Therefore,there will be more convincing legal basis in the judicial decision,and enhance the credibility of the judiciary.