Discussion On "Seeking Personal Interests" In The Crime Of Embezzlement Of Public Funds

The crime of embezzlement of public funds is one of the common and frequent duty crimes in the judicial practice.In order to combat the crime of embezzlement of public funds in an overall and effective manner,the Standing Committee of the NPC legislated the Interpretations on Paragraph 1,Article 384 of the Criminal Law of the People's Republic of China on April 2002,which provided where the individual state functionary decides to offer public funds for other units in the name of his unit for the purpose of personal interests,it shall be judged that he embezzles the public funds for his personal use.However,owing to the complex plots of the crime of embezzlement of public funds in reality,all kinds of new situations and new problems appear constantly;combined with the defects of the legislation on the crime of embezzlement of public funds itself,how to judge whether the person committing it “seeks personal interests” has become a prominent problem,long plaguing the judicial personnel in the judicial practice,which requires deep research and discussion.In this paper,the author combines the real cases encountered in the work to draw forth the four common problems in the judgment of “seeking personal interests” in the current judicial practice,and proposes his opinions and judgment methods in combination with the main opinions of the academic circle and judicial practice circle on these issues,so as to provide certain references for judicial judgment of corresponding cases.This paper consists of three parts:Part One elaborates the legislations on “seeking personal interests” to be the constituent of the crime of embezzlement of public funds,and the confusion of its identification in judicial practice.This part reviews the establishment of the crime of embezzlement of public funds,relevant legislative interpretations and judicial interpretations,hoping to understand and master the reasons for and the purpose of “seeking personal interests” to be a constituent of the crime of embezzlement of public funds.Through two cases handled,the author summarizes the four common difficult problems in the judgment of “seeking personal interests”,including the contents of “personal interests”,whether “personal interests” should have the limited degree or quantity,whether it can be judged as “seeking personal interests” where the person committing it does not have the intention for personal interests before the act and only gains personal interests after the act,and whether the person committing it should receive combined punishment for several offenses where there coexist the act of “embezzling public funds” in the form of bribe taking and embezzling public funds.Part Two expounds the discussions on the relevant difficult problems of “seeking personal interests”.The author then proposes his opinions on the above-mentioned problems in combination with the theories and opinions of the academic circle on the problems,that is,the scope of “personal interests” should be expanded in subject and narrowed in contents;“personal interests” should have no limited degree or quantity,in which the person committing it should be judged as “seeking personal interests” once such person seeks personal interests no matter how they are major or minor;the person committing it should be judged as “seeking personal interests” where such person gains personal interests after the act without the intention for personal interests before the act;where there coexist the act of “embezzling public funds” in the form of bribe taking and embezzling public funds,the person committing it should be judged as implicated offender and whether such person should receive combined punishment for several offenses should be judged according to the circumstances.Part Three proposes the conclusion.Through the reflections on the reasons for the difficulties on the judgment of “seeking personal interests” in the current judicial practice,the author proposes that the fundamental problem lies in the inherent thinking in the long legislation of no equal protection of public property under collective ownership and private ownership of property,resulting in the over complex and difficult judgment on the facts of the crime of embezzlement of public funds and proposes the suggestions for timely amendments to the legislation.Because of the author's limited theoretical and practical level and analysis and discussions on relevant issues mainly in the perspective of judicial practice,it is hard to avoid errors,cracks and single-faceted opinions in this paper,hoping experts and scholars to point out mistakes so that they can be corrected.