The Practical Problems And Its Solutions Of The Crime Of The Misappropriation Of Funds

The crime of misappropriation of funds is quite a representative charge,and the establishment of this new type crime is aimed at the swift development of our country's market economy as well as the action of the workers misappropriating the units' funds who are in the non-state-owned companies or enterprises which emerged in the process of the diversified development of modern enterprise pattern.When amended the Penal Code of the People's Republic of China(herein after referred to as "Penal Code")in 1997,the crime of misappropriation of funds of 272 nd clause was supplemented in the need of striking the crime of misappropriation in non-state-owned companies depending on the frame of market economy.Currently,the crime of misappropriation of funds presents the new features such as: the increasing diversification of criminal forms,the more extensive criminal subject and the more complex criminal means,etc.The new features which described above give the department concerned the new challenges to detect the crime of misappropriation of funds in judicial practice.Therefore,the thesis puts the application of the specific definition,criminal subjective definition and criminal formal issue of objective action of the crime of misappropriation of funds in judicial practice and the issue of criminal number of the crime to analysis and discussion.The thesis gives the related opinion and legislative perfect suggestion to the practical problem.The article is divided into four parts to discuss the predicament of application of the crime of misappropriation of funds in judicial practice and gives the related methods to it.Each of the four parts singly discusses a complete practical problem.The first part of this thesis from the objective aspect of criminal constitution theory rises that the crime of misappropriation of funds causes the judicial predicament of application because of some related stipulations of legislation and some patterns of actions in specific judicial practice.In the first place,this thesis analyses the problems of legislation about the criminal object of this crime.Initially,the thesis summarizes the stipulation of the penal code about the criminal object of this crime and points out that it is not proper to put the money as the only object of the crime of misappropriation of funds and moreover points out the perfect suggestion of putting the nonspecific public property as the criminal object of this crime;in the second place,the thesis analyses the situations of "belonging to individual use" and "giving the debt or credit to others" of misappropriation of funds in the crime of misappropriation of funds and we argue that the individual of use which belongs to individual contains the situation of use of "giving the debt or credit to others" and moreover discuss the debt and credit and define the pattern with the action of misappropriation of funds in the name of unit of borrow and stealing the unit certification.The second part of the thesis from the view of application of criminal subject discusses the definition of action of the staffs of different qualitative enterprises in the frame of multiply ownership.First,the thesis discusses the definition of action of staffs misappropriating funds that are entrusted to manage the state-owned assets.Concerning this problem,the thesis divides the problem into tow situations depending on whether the staff works for nation that are the action of misappropriation of funds when the actor with the identity of national worker is appointed to work at non-state-owned company,enterprise or other units and the other misappropriation of funds when the non-state-owned worker is appointed to manage state-owned asset and moreover amply analyses these tow situation.Second,there are many non-public-ownership enterprise patterns because of the diversity of ownership structure and how do we define the action of misappropriation of funds of manager or investor in these private enterprises? The thesis specifically analyses the subjective definite problem of the action of misappropriation of funds in the enterprises discussed above,taking the private enterprise and individual contractual enterprise as example.The third part of the thesis puts the issue of criminal form of the crime of misappropriation of funds to detailed analysis and debate.In the first place,the thesis defines whether the action of “misappropriation but no use” constitutes the crime.Initially,the thesis enumerates the viewpoint of crime and non-crime of academic field on the condition of "misappropriation but no use" and the academic field all agree that it still constitutes the crime of misappropriation of funds even if the person doesn't use the funds after the person misappropriates the funds;furthermore,on the premise of crime and non-crime of the situation of judging the "misappropriation but no use" and moreover we analysis the situation of it whether to exist the attempted condition and argue that the situation of "misappropriation but no use" in the crime of misappropriation of funds exists the attempted condition.In the second place,the article puts the second problem of criminal form of the crime of misappropriation of funds that is the problem of joint crime to discussion.It is divided into three situations.The first are the staffs of their own companies,enterprises or other units and collaborate with each other to misappropriate the funds of their units;the second are the staffs who are not their own companies,enterprises and other units of criminal subjects of not singly becoming misappropriation of funds and collaborate with the staffs of their own companies,enterprises and other units to misappropriate the funds;the third are the persons with different identities collaborating with each other to misappropriate the funds of their own units.The fourth part of the thesis mainly debates the form of transformation and the issue of form of criminal number.Initially,the thesis analyses the situation when the people don't return the funds after they misappropriate the funds and detailed discusses the comprehension of no return about this crime and compares the action that the people don't want to return the funds subjectively with the situation of "for the purpose of illegally owning" and finally finds out the slip of this crime in the stipulation of "no return" action in legislation.Furthermore,the article discusses the problem of the pattern of crime number,the first,it introduces the definition of form of the criminal who is involved in the crime of misappropriation of funds and whether to mete out sentence for more than one crime;the second,the thesis debates the pattern of crime number and the time effect of pursuing suit of the action of misappropriation of funds for many times,taking the case of misappropriation of funds of Zhou Jianchao as an example.