Conviction And Sentencing Analysis Of Acts Of Stealing And Defrauding Property By Taking Advantage Of Position

it is normally considered that components of job occupation crime and embezzlement crime in China's criminal law both contains behavior patterns of making use of the job convenience to steal and defraud property,thus,job occupation crime,embezzlement crime and ordinary crime of theft,fraud compose cooperation-competition in components with the comparability between the above charges.And according to provisions in “Explanation about Some Issues of Applicable Law in Handling Embezzlement and Bribery Criminal Cases by The Supreme People's Court and The Supreme People's Procuratorate”,the amount of convicting and sentencing are significantly higher than of job occupation crime and embezzlement crime that of ordinary theft and fraud,so the above charges are in a state of obvious imbalance on conviction and sentence.About behaviors of stealing property of the unit by job occupation crime and embezzlement crime,although they do not reach the amount of convicting job occupation crime and embezzlement conviction,they shall be convicted and punished in accordance with the ordinary theft and fraud when reaching the normal amount of convicted of theft and fraud in order to implement principle of suiting punishment to crime,maintain the balance of punishment to crime between the above charges,in terms of conviction,according to the theory of crime constitution;In terms of sentencing issues,according to the cooperation-competition theory of provisions of law,cooperation-competition types of provisions of law in the interaction between job occupation crime,embezzlement crime and ordinary theft,crime of fraud,behavior of making use of the job convenience to steal and defraud property from his unit with large amount achieves the job occupation crime(or embezzlement)and ordinary theft or fraud crime constitution,which shall be punished for serious crime.Certainly,the above handling opinions are only the applicable law of opinions made from the angle of theory of justice in the judicial practice.Because of the new judicial interpretation greatly increases the criterion of conviction and sentencing amount of job occupation crime and embezzlement crime,the conclusion of judicial handling can lead to nominal existence of behavior patterns of making use of the job convenience to steal and defraud in job occupation crime and embezzlement crime.In order to maintain the overall coordination and unity of the structure of punishment in our criminal law,further investigation shall be made from the legislative angle,it is proposed to make the appropriate changes to legislation of job occupation crime and embezzlement crime in the future,limit the behavior to "take possession of the property of the unit for safekeeping" in legislation of job occupation crime and reestablish conviction and sentencing amount and statutory sentence of embezzlement crime.