How To Understand The "Utilization Of Official Facilities" In The Crime Of Official Embezzlement

The key problem of identifying the crime of occupying a position lies in how to understand “making use of the convenience of the position”.There are no clear provisions in the criminal law of our country.There are different views in theory,including “director,management,manager”,“authority”,“work convenience” and“duty”.Among them,“the theory of supervisor,management and manager” is the general theory of our theoretical circles,which directly applies the relevant theoretical explanations in the crime of corruption;“the theory of authority” holds that only when the actors' activities belong to the public service activities with the nature of management can they be identified as utilizing the convenience of their positions and excluding the labor service activities;“the theory of work convenience” holds that the actors' actions can only be accepted.The influence of duty is not limited to the right to control and control the property of the unit;the theory of duty holds that the premise is to assume the responsibility of the unit,and the above four viewpoints attempt to explain the meaning of “utilizing the convenience of duty” from different perspectives.Based on the analysis of theoretical disputes,127 cases involving “guarding against theft” collected by Peking University magic weapon were taken as sample cases,of which 58 were convicted of duty embezzlement and 62 were convicted of theft.It is found that the confusion of different courts' understanding of “utilizing the convenience of the position” in the crime of duty embezzlement in judicial practice leads to disputes on the nature of this type of case,and the disputes on the nature directly lead to the differences in the application of sentencing.Qualitatively speaking,when we understand the objective constituent elements of the crime of duty embezzlement“making use of the convenience of duty”,we think that the act of duty embezzlement only infringes the property ownership of the company,enterprise and other units.We do not realize that the act at the same time damages the integrity of duty behavior or challenges the seriousness and validity of public power illegally.As well as the general theory of mechanical applicability,“supervisor,manager and manager” does not really understand its essence and extension.In addition,the root cause of qualitative disputes lies in the unreasonable standard of legal penalty and sentencing amount,which can not be harmonized with other common property crimes.On April 18,2016,the Supreme People's Court and the Supreme People's Procuratorate promulgated the Interpretation of Several Questions Concerning the Application of Law in Handling Criminal Cases ofCorruption and Bribery.The Interpretation comprehensively raised the standard of the amount of conviction and sentencing for the crimes of corruption and occupancy by duty,comprehensively raised the threshold of entry for the crimes of corruption and occupancy by duty,and comprehensively understood the nature of the cases and determined that different cases might lead to the impose.The great difference between the crime and non-crime,this crime and that crime,felony and misdemeanor in the rational result damages the legitimate rights and interests of the parties involved in the case and affects the authority of the judiciary.Based on the above-mentioned problems,this paper provides the following ideas for explaining the “use of the convenience of duty`” in the crime of duty embezzlement:the crime of duty embezzlement is different from the crime of common property infringement,and its unique attribute is that it has the characteristics of “taking advantage of the convenience of duty” to embezzle property.Guided by the protection of dual legal interests of the crime of duty embezzlement,the essence of “duty convenience” is explained.The connotation and denotation are that the person engaged in public service or labor of a company,enterprise or other unit accepts the entrustment of the unit and keeps the property of the unit for a long time;the “handler” is different from the “handler”.The post responsibility of the handler should include independent control and control,not subject to the supervision of the third party,and make a distinction between “making use of the convenience of work”.At the same time,the crime of occupying property by duty is a crime of acquiring property that does not infringe upon the possession of others.The premise is to have the right to occupy the property of the unit beforehand,the key is to control and control the property independently by the actor,and the causal relationship between the crime of occupying property and the crime of utilizing the position is the essence of the three aspects to accurately understand the judgment standard of “utilizing the convenience of the position”.The method of criminal law interpretation inevitably has its limitations,so it is necessary to introduce relevant laws or judicial interpretations to reduce the threshold of the crime of duty embezzlement,increase the standard of a particularly large amount of sentences,and add life imprisonment and property punishment,so as to achieve the purpose of coordinating with other common property crimes.