Research On The Controversial Issue Of The Crime Of Duty Embezzlement

The crime of duty embezzlement is a typical crime of infringing property.With the rapid development of market economy and the coexistence of many kinds of employment relations,the crime of duty embezzlement presents complexity and diversity.In determining the scope of the subject of t the crime of duty embezzlement,the former theory used to be that the formal employees of a unit understand "the personnel of a company,enterprise or other unit",there are many disputes about the identity of temporary workers,dispatched workers and entrusted agents,and whether "other units" include individual industrial and commercial households.As for the interpretation of "taking advantage of the position" in the crime of duty embezzlement,the theoretical circles usually refer to the interpretation of "taking advantage of the position" in the crime of duty embezzlement as "the theory of being in charge,managing and handling",the theory of "single legal interest" is also the main legal interest to protect the crime of duty embezzlement,and the theory of "double legal interest" is seldom mentioned,in essence,it reduces the scope of "functional convenience".In the interpretation of "illegal possession for the purpose",most of the theorists believe that it is necessary to have illegal possession for the purpose,and has the function of distinguishing crime from non-crime,this crime from the other crime.In practical cases,it is difficult to distinguish the crime of duty embezzlement from the crime of embezzlement when the employees of stateowned enterprises are assigned to private enterprises.In the case that company employee Pilferes Unit Property,the distinction with Larceny also has bigger dispute.According to the constitutive requirements and legislative intent of t the crime of duty embezzlement,the identification of the subject of the crime of duty embezzlement shouldn't be dominated by "identity theory",but should pay attention to the factual labor relations between employees and units,temporary workers,dispatched employees and entrusted agents should be taken into account,and the understanding of "other units" should refer to the "legal person" nature of companies and enterprises,and "natural person" to be distinguished.The interpretation of " taking advantage of the position " should be in line with the legislative aim of the crime of duty embezzlement,and should be guided by the protection of legal interests.It should not only be interpreted from the perspective of the de facto authorities,management and operation,but also consider the "public power" that can mobilize the resources of the unit,the guidance of " double legal interest " is more in line with the legislative aim of the crime of occupation by post.The determination of " illegal occupation for the purpose " generally adopts the way of presumption,but the presumption should be guided by the principle of the unity of subjectivity and objectivity.In practical cases,the key to distinguish the crime of embezzlement from the crime of duty embezzlement lies in the understanding of "unit property" and "National Staff".To distinguish the crime of duty embezzlement from the crime of theft,we should not only determine the identity and scope of duties of the employees of the unit,but also combine the purposive interpretation of " taking advantage of the position ",to determine whether the infringement of the property of the unit is taking advantage of the convenience of the position.