On The Crime Of Breach Of Trust And Its Judicial Practice During The Period Of Nanjing National Government

In recent years,with the rapid development of China’s market economy,the crime of breach of trust has occurred frequently in the economic field.However,there are few researches on the crime of breach of trust in the contemporary academic circle,especially the researches on the crime of breach of trust in the Republic of China.Based on the judicial archives of Hubei Province and other documents,this thesis studies the crime of breach of trust during the Period of Nanjing Nationalist government,in order to obtain the crime of breach of trust and traditional Chinese practice rules and legal basis,and provide historical reference for the legislation of modern crime of breach of trust.The crime of breach of trust was first produced in Germany.Japan developed its own unique criminal system of breach of trust based on German legislation,while China introduced this crime based on Article 247 of Japanese Criminal Law during the reform and revision of the law in the late Qing Dynasty,and it was used until the founding of New China.The changes in the law were mainly reflected in the sentencing rules.In 1979 and1997,the criminal law of Chinese mainland did not stipulate ordinary breach of trust.In recent years,some special breach of trust crimes were added to cope with market chaos.To study the legislative regulation of the crime of breach of trust in the period of nanjing National government,one is the question of "crime and non-crime".First,it is necessary to clarify the concept and criminal constitution of the crime of breach of trust.Criminal scholars in the late Qing Dynasty and the Republic of China mostly adopted the viewpoint of the theory of breach of trust in the Japanese academic circle at that time,believing that "breach of trust" is a violation of the principle of good faith and honesty,and the act of breach of trust is contrary to the principle of good faith and honesty.The constitutive elements of the crime of breach of trust mainly include four points: first,the doer must deal with affairs for others;Second,the actor must have the intention of obtaining unlawful benefits for himself or a third person,or causing unlawful harm to himself;Third,the actor must be a violation of the task;Fourth,the actor’s breach of trust must result in damage to his property or other interests.The facts of the case must meet the above four elements at the same time to establish the crime of breach of trust,otherwise there are only civil problems,or it is an attempt of the crime;The second is the question of "this sin versus that sin".Property crimes are mostly similar in nature.Most cases related to the crime of breach of trust during the Period of Nanjing National Government are related to embezzlement,fraud,theft and other crimes.These crimes are similar in subjective intention and nature of breach of good faith principle,which are mainly distinguished according to the differences in objective behavior of constituent elements.As a part of the legal system,legislation often leads the values of The Times,but there are various problems in the judicial practice.The judicial practice of the crime of breach of trust in Hubei province during the period of Nanjing Nationalist government is investigated by combining the cases,and the relationship between the legislation and judicial practice of the crime of breach of trust at that time can be seen.For example,in the prosecution stage of the case,private prosecution in breach of trust has obvious abuse of prosecution.On the one hand,it was because of the limited knowledge level of the people at that time and the low popularity of the law,people did not really understand the concept and connotation of the crime of breach of trust,and rushed to Sue after disputes.Second,some people know that the dispute belongs to the civil scope,deliberately through criminal proceedings to magnify the event,trying to achieve the purpose of civil by criminal means;Third,there are also people who regard criminal proceedings as their own revenge tools,in order to tarnish the reputation of the defendant,to cause a drag on the defendant or in order to temporarily revenge private prosecution in breach of trust.In the stage of case investigation,the prosecutor mainly takes the way of interrogation,and decides whether to prosecute after the investigation.But at that time,the order of procuratorial investigation was chaotic,and the form of investigation of the case of breach of trust was too simple,which was easy to have omissions.And due to the lax review of procedures,the revocation of the original judgment in the second instance of breach of trust cases is mostly due to procedural errors.In the trial stage,in the judicial practice of Hubei Province at that time,judges mainly used the free heart evidence system to judge the breach of trust cases,and determined the facts according to common sense,common sense,reason and jurisprudence.At that time,the judges of the grass-roots court had low legal professional literacy,and the error rate of the first instance judgment was high,which could be corrected only after the appeal to the second or even third instance court.In sentencing,judges take into account factors such as a defendant’s age,penitence,knowledge level and education,and often hand out sentences on the low side.Although the practice deviated from the ideal state,on the whole,the grassroots people’s awareness of legal rights was greatly improved,and the procuratorial investigation and prosecution procedures were more systematic and regular.Although there are some mistakes and limitations in the judge’s judgment,it still reflects the advanced value tendency of The Times and is progressive.Through the analysis of the above problems,thinking about the regulation of the crime of breach of trust in our current criminal law,we can find that the legislation and system of the crime of breach of trust in Our country are still inadequate.For example,the current legislation cannot cover the endless acts of breach of trust,enumerative criminal subjects make the applicable scope of charges narrow,and constantly adding new special charges will make the system of breach of trust complicated.Through the above research,I believe that adding ordinary breach of trust crime in the current criminal law can make up for legislative omissions,which is conducive to the construction of the system of breach of trust crime and more suitable for the needs of the current social development.