A Study On The Equilibrium Of The Crime Of Theft And Duty Encroachment

In recent years,from the Supreme People ’s Court ’s “Judgment on the Abolition of Certain Judicial Interpretations(Thirteenth Batch)” on July 8,2019,to the comprehensive clearance of the inequality provisions involving private enterprises,to the December 4,2019 The promulgation and implementation of the "Opinions on Creating a Better Development Environment to Support the Reform and Development of Private Enterprises" and the promulgation of a series of regulations all show the state’s attitude towards strengthening the protection of private enterprises.As an important means of criminal law to protect the development of the private economy,the balanced allocation of penalties for crimes of duty encroachment and similar crimes is crucial.Under this background,it is of great theoretical value and practical significance to choose the topic of "Study on the Equilibrium of the Crime of Theft and Duty Encroachment".In theory,by reshaping the relationship between justice and efficiency in the legislative concept,reaffirming the important role of the system interpretation principle in the field of criminal law interpretation,while clarifying the relationship between theft and the crime of duty encroachment,while achieving a response to the basic principles of criminal law.At the practical level,through suggestions on the balanced allocation of punishment for larceny and crime of duty encroachment,the protection of private enterprises should be strengthened at the level of criminal law,to avoid indulgence of occupational embezzlement in practice,to resolve the common crime punishment problem,and to achieve improvement Legal credibility,the purpose of easing social conflicts.The full text consists of more than 40,000 words and is divided into five parts.It mainly discusses from the perspectives of the purpose and significance of the research,the imbalance of the punishment of larceny and crime of duty encroachment,the problem inspection,the cause analysis and the way out of the dilemma.details as follows:Introduction This part mainly focuses on the necessity of balancing the punishment allocation of crimes of theft and crimes of duty encroachment.The similarity of the crimes of theft and crimes of duty encroachment shows the necessity of realizing the balance of the twocrimes.However,the limitations of the method of legal hermeneutics determine that only by changing the current penalties of the two crimes can the goal of a balanced punishment be achieved.The single behavior theory of the crime of duty encroachment not only violates the purpose of legislation,but also violates the existing law.The theory of imaginative jointer in the crime number theory will not only lead to the "attempt" in the crime of duty encroachment not to meet the definition of attempt,,but also lead to the actual "attempt" of the crime of duty encroachment impossible;——If you decide to choose one of the most serious crimes,you have the basic principle of violated.Therefore,to modify the existing penalties of theft crimes and crime of duty encroachment in a reasonable way has become the only way to resolve the imbalance of the penalties of the two crimes.The first part is the perspective of the imbalance between the crime of theft and the crime of duty encroachment.This part mainly compares the crime composition and penalty configuration of the crime of theft and the crime of duty encroachment.By comparison,it reflects that the objective method of the crime of duty encroachment is complicated and subjectively malignant,and its penalty configuration is lighter than the penalty configuration caused by theft,thus caused the imbalance penalty between two crimes.The second part examines the aftereffect caused by the imbalance between the crime of theft and crime of duty encroachment.This section discusses the problems arising from the imbalance of the two crimes.The existing penalties for theft crimes and the crimes of duty encroachment theoretically deviate from the basic principles of criminal law-the principle of verdict conforming to crime,and the principle of equality of criminal law;in practice,they deviate from the criminal law orientation of the crime of duty encroachment,which gave birth to the theft crime obstacles to the punishment of crime have caused the loss of judicial credibility and sharp social contradictions,which has caused chaos in the social order.The third part is an analysis of the reasons for the imbalance in the punishment of theft and crime of duty encroachment.This part aims to analyze the underlying reasons behind such legislation,and draw a feasible countermeasure for crime-punishment equalization based on the cause.The imbalance of the punishment of theft and duty embezzlement is due to themisalignment of criminal functions caused by the imbalance of the justice and efficiency of the legislature;on the other hand,due to the imbalance of the interpretation method of the judicial system.In addition,the macro cause of the imbalance in the allocation of penalties for the two crimes lies in the absence of the expectation of collectivist protection ideas,and the protection of collective interests is not taken seriously.The fourth part is the realistic way out of the imbalance between the crime of theft and crime of duty encroachment.To get out of the current dilemma of the imbalance between the crimes of theft and crime of duty encroachment,the legislation should follow the concept of justice first,taking into account the efficiency,take the unified principle of punishment as the means,and should be the first and second stage of the crime With "should be fined or confiscation of property",the third stage of the sentence is set to "with confiscation of property",instead of the previous "can be confiscated property".In the practice of justice,the principle of systematic interpretation should be followed,and the standards of conviction and sentencing of crime of duty encroachment should be lowered to the corresponding standards of the crime of theft.Macro-advocate collectivist ideas,actively guide the public’s ideas along the correct track,and avoid the emergence of more uneven legislative and judicial interpretations.The balanced allocation of penalties for theft crimes and crime of duty encroachment is of great significance.It is difficult to fundamentally solve the problems caused by imbalanced penalties by adopting the method of law interpretation to study the penalties of the two crimes.Based on this,this article attempts to eliminate the problem of unreasonable penalty allocation between theft crimes and crime of duty encroachment from the legislative level,and it is expected to be helpful to criminal law theory and judicial practice.