On The Nature Of The Behavior Of The Illegal Occupation

The qualitative question about the behavior of the illegal occupation of embezzlement is mainly about the controversy arising from whether it can constitute the crime of embezzlement.There are four kinds of doctrines in the academic circle:whether it constitutes the crime of embezzlement,such as affirmation,negation,compromise,and distinction.At present in our country’s criminal law theory,there are many supporters of the affirmation and distinction.However,in practice,the denial theory is accepted by more jurisprudence,and very few jurisprudence convicts and punishes the act of embezzlement for illegal reasons according to the crime of embezzlement.The author believes that,among the above doctrines,the theory of distinction has greater rationality.The reason is that,first of all,it is necessary to distinguish between the payment of illegal reasons and the commission of illegal reasons,and discuss them separately;secondly,the concepts and basic rules in the criminal law should be consistent with the civil law;again,the ownership of the entrusted objects of illegal reasons belongs to The client and the trustee’s encroachment on the property constitutes the crime of misappropriation,and the ownership of the payout for unlawful reasons belongs to the payer;finally,in the case of embezzlement of the payout for special unlawful reasons,special discussion and handling are required.In addition to expressing the specific views of this article,the first chapter clarifies some basic concepts for further discussion later,and clarifies the definitions of "encroachment","illegal cause" and "illegal cause payment".It focuses on the definition of "debt payment for unlawful reasons",and leads to a broad and narrow sense.At the same time,this is also the fundamental difference between affirmative,negative,differential,and eclectic,that is,whether to recognize unlawful payment and illegal reasons Delegated.The author believes that the payment of unlawful reasons should be understood only as the payment of final causes of unlawful reasons,that is,in a narrow sense.The reason is:keeping the same with the concept of payment of illegal reasons in civil law,introducing the concept of commission of illegal reasons,and conducting classification research to avoid confusion between concepts.Chapters 2 to 4 demonstrate my point of view from different perspectives.The second chapter starts with the relationship between the civil law and the criminal law,and seeks to determine the nature of the payment for the illegal reasons.Regarding the relationship between civil law and criminal law,there are two contradictory views of illegal monism and illegal relativity.In addition,there are two doctrines of strict illegal monism and moderate illegal monism within illegal monism.The author is in favor of the easing monism of violating the law.The reason is that the easing monism of violating the law can maintain the unity of the legal system,and can also implement the principle of humility of the criminal law,and at the same time consider the difference between the civil law and the criminal law in the purpose of normative protection.The third chapter starts with the ownership of illegal things,and analyzes whether the ownership of illegal things belongs to the payer,the payee,or the state.Because of the difference between the payment of illegal reasons and the commission of illegal reasons,this chapter is divided into two situations:the payment of illegal reasons and the commission of illegal reasons.In the payment of illegal reasons,because there is no payment system for illegal reasons in our country,in civil law practice,there are many cases of judging the ownership of the payer based on the invalid contract.Based on the basic situation of civil legal events in our country,it can be determined that the ownership of the payment for illegal reasons belongs to the payer.Therefore,under this condition,the encroachment on the payment for illegal reasons cannot constitute the crime of encroachment.In the case of entrustment for unlawful reasons,because entrustment and payment are two different concepts,and the concepts between civil law and criminal law are basically consistent,entrustment for illegal reasons does not apply to the payment system for unlawful reasons in civil law,and the principal does not The loss of the right to request the return of the entrusted object will naturally not lose the ownership of the object.Therefore,the encroachment on the entrusted objects of illegal reasons may constitute the crime of encroachment.The fourth chapter deals with some residual and incidental problems,mainly qualitative problems of encroaching on special illegal causes.The act of embezzlement of stolen goods violates the crime of stolen goods and does not constitute a crime of embezzlement.It is only convicted and punished as a crime of stolen goods.The recipient does not know in advance but then finds that it is stolen and embezzles it constitutes a stolen crime.Although the recipient does not know in advance that the property delivered by the payer is stolen,the recipient knows during the hiding process or before selling the stolen goods.If it is stolen goods,it will still be kept or sold on behalf of the stolen goods,it will not affect its subjective identification,and its subjective aspects have been transformed and have punishability.In cases where currency is the object of unlawful causes,the behavior of embezzlement of illegal currency is the same as the punishment of the behavior of embezzlement of ordinary property,and the principle of "possession is all" does not apply.