| In recent years,the legitimate rights and interests of private enterprises have received increasing attention.The criminal law’s protection of the legitimate rights and interests of private enterprises is mainly reflected in the crime of official embezzlement.Therefore,the identification of objective elements of the crime of official embezzlement is particularly important.Among them,what is the use of the convenience of the post,what is the illegal way to own it,and how to judge the property of the unit are controversial in the field of criminal law and judicial practice,and no consensus has yet been reached.This article is dedicated to studying and solving these problems.Apart from the introduction,the text is divided into four chapters:Chapter 1: The Essence and Method of the Crime of Official EmbezzlementThis chapter aims at grasping the method of this crime by grasping the essence of this crime.This article believes that the essence of this crime is that the perpetrator illegally occupies the property of the unit that he has already possessed.The method of this crime is theoretically controversial with the theory of a single method,which needs to be grasped by the essence of this crime."Encroachment" is divided into broad and narrow occupation.The broad appropriation includes embezzlement,stealing,deceit,etc.The narrow appropriation refers to the socalled embezzlement.The comprehensive method is said to be the occupation in the broad sense,while the single method is described to be the occupation in the narrow sense.According to the essence of the occupation of "no transfer of possession" in this crime,the method should be in the narrow sense."Stealing" and "fraud" are encroachments that transfer possession and should not be included in the method of this crime.Therefore,this article supports the single-method approach,and based on this position,responds to the typical controversial cases in the introduction that involve the identification of the crime.Chapter 2: Characteristics of the Crime of Official EmbezzlementThis chapter aims at a new definition of the behavioral characteristics of the crime of official embezzlement "using the convenience of the post" and puts forward the main points of the judgment of "using the convenience of the post".This article believes that,compared with the crime of embezzlement,the crime of official embezzlement has its unique behavioral characteristics: "using the convenience of the post".The core of the "using the convenience of the post" in this crime lies in the understanding of “duty”.The understanding of the "duty" of this crime is based on the characteristics of disloyalty of this crime and has the following three aspects:(1)The connotation of "duty" is: responsibility,stability,repetitiveness and continuity in the unit.(2)The essence of "duty" is: The status of keeping,controlling and occupying the property of the unit based on the trust of the unit.(3)The extension of "duty" can be organizational,mental,physical,and service work.Based on the understanding of the "duty" of the crime,the "using the convenience of the post" should be understood from three theoretical dimensions:(1)The premise is to engage in matters with responsibilities,stability,repeatability,and continuity in the unit.(2)Its essence is utilizing the convenience of keeping,controlling and occupying the property of the unit based on the trust of the unit.(3)It can be the convenience of organized,mental,physical,and service work.Based on the understanding of the three theoretical dimensions of "using the convenience of the post" of this crime,three practical dimensions,namely the main points of judgment,are proposed:(1)The status of unit staff must be based on unit trust.(2)The identity of the unit staff and the affairs they engage in must be stable,continuous and repetitive.(3)The unit staff has the authority to control,possess and keep the property of the unit.Based on the above understanding,this article will respond to the typical controversial cases in the introduction about the behavioral characteristics of this crime.Chapter 3: Objects of the Crime of Official EmbezzlementThis chapter aims to solve the problems related to the "property of the unit" in the crime of official embezzlement.Firstly,this article determines the scope of the "property" occupied by this crime through the general determination of "property." General determination of "property" :(1)"Property" is synonymous with "property".(2)"Property" is an object that has economic value attributes,management possibilities,and can be controlled by people.(3)"Property" includes property interests.(4)According to different classification standards,"property" can be divided into different types.Secondly,according to the behavioral characteristics of this crime,the scope of the "property" occupied by this crime includes:(1)the movable property under the criterion of whether "property" can be moved,(2)the physical object under the criterion of whether "property" can be directly felt by people,(3)the tangible property under the criterion of whether the "property" has the physical external manifestation,(4)real property under the criteria of "property" being objective or virtual,and virtual property that can be converted into currency or property with actual use value in a certain way.The scope of the "property" occupied by this crime does not include:(1)the real estate under the criterion of whether "property" can be moved,(2)the intangible objects such as electricity,gas,natural gas and other energy sources under the standard of whether "property" can be directly felt by people,(3)the intangible property such as trademark rights,copyrights,and patent rights under the criterion of whether "property" has the physical external manifestation.Then,on the basis of the scope of the "property" occupied by this crime,the "property of the unit" should include the property owned and controlled by the unit.The question of whether the sealed items in the logistics belong to the “property of the unit” is solved by the theory of fact possession and legal possession.This article considers that when the trustee actually holds the seal in logistics,the seal can be made into the trustee’s property,that is,the property of the unit.Finally,based on the above understanding,we will respond to the typical controversial cases in the introduction regarding the objects of this crime.Chapter 4: Discussion on Typical Comprehensive Disputes of Objective Elements of this Crime"Yang Mo,SF sorter,has declared no crime" covers all issues of objective elements of this crime,causing major controversy in theory and practice.The purpose of this chapter is to interpret the case from the viewpoint of this article,and to explain the comprehensive application of the viewpoint of this article.After clarifying the judicial differences in this case,this paper argues that:(1)Regarding the identification of the behavior mode,Yang’s behavior does not belong to the narrow occupation in this crime.(2)In regard to the identification of behavior characteristics,Yang did not have the condition of "using the convenience of his office" for this crime.(3)With regard to the identification of the object,the parcels involved in the case belonged to the property of SF.Therefore,Yang’s behavior does not constitute the crime of official embezzlement,and the crime of theft is more appropriate.Comments on judicial differences in this article:(1)Regarding the identification of the behavior mode,the opinion of the court of first instance is reasonable,but the view of the court of second instance is questionable.(2)In regard to the identification of behavior characteristics,there is a problem with the views of the second instance court and the retrial court,and the view of the procuratorate is reasonable.(3)With regard to the identification of the object,the second instance court asserted that the trustee possessed the conclusion,the conclusion was reasonable,but there were problems with this view.In summary,Yang’s behavior should be punished for theft.This article may have the following innovations: First,based on the characteristics of this crime of betrayal,this article introduces the concept of "trust relationship" to redefine the connotation,essence and extension of the "duty" of this crime.Second,based on the connotation,essence and extension of the "duty" of this crime,this article proposes three theoretical dimensions and three practical dimensions of the "using the convenience of the post" of this crime.Third,this article uses the theory of fact possession and legal possession to solve the problem of belongings in logistics.There are many deficiencies in this article: Firstly,this article has a new definition of "duty",but its judgment criteria may not be clear enough,and more in-depth theoretical research and practical tests are needed.Secondly,this paper proposes to use the theory of fact possession and legal possession to solve the problem of belongings in logistics,but its argument is insufficient.Thirdly,this paper also has shortcomings such as incomplete collection of theories and inadequate and direct expression. |
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