Research On The Judicial Determination Of The Crime Of Misappropriating Public Funds

Compared with the crime of misappropriation of public funds when it was just established,there have been many new cases of misappropriation of public funds.However,based on the limitations of legislation,it can not keep pace with the current practice,so there are many problems in recognition,which perplex the judicial practice.Thus,in order to better understand and use the law and crack down on crime,this thesis studies some difficult problems in the identification of the crime of misappropriation of public funds.The first chapter discusses the crime of misappropriation of public funds from two aspects:defining the connotation of "misappropriation" and clarifying the scope of "public funds".This thesis argues that the implementation of the crime of misappropriation of public funds is a single act,not a composite act."Move" and "use" are the relationship between means and purpose.The implementation of this crime is only "move",not "move" + "use",and "use" is the subjective purpose element."Use" has two meanings.The specific purpose should not be used as the constituent element to determine the establishment of this crime,but the specific amount standard can be used as the objective result element affecting the conviction.Secondly,the distinction between misappropriation and borrowing is conducive to dealing with the behavior of misappropriating public funds under the name of borrowing public funds in practice.In addition,it holds a negative attitude towards whether general public property can become the object of this crime,but advocates that the price obtained after the sale of general public property can become the object of this crime.The second chapter analyzes the three situations of "personal use",defines the identification scope of "personal use" and defines three specific uses;Clarify the boundary between profit-making activities and illegal activities,and advocate "the behavior of preparing for profit-making activities",which should be analyzed according to the specific situation.Those who help others to register the company and receive benefits belong to misappropriation and shall be recognized as being used for profit-making activities;If it does not receive benefits,it shall be deemed to be used for other general activities.The third chapter discusses the complex calculation of the amount and time of misappropriation in judicial practice through two dimensions: one is from the purpose,the other is from the way of misappropriation.It mainly advocates that if the misappropriation of public funds is used for different purposes,but each purpose does not meet the amount standard,it should be identified from the point of view of light to light;For those who misappropriate after returning,the standard of maximum risk of loss of public funds shall be adopted to identify.The fourth chapter discusses the common crime of misappropriating public funds,the subject and subjective aspects.It advocates that only when the user and the misappropriator have the common intention of "moving" subjectively,can they constitute a joint crime.If the non user meets the constitutive requirements of accomplice,he can also establish accomplice of this crime with the misappropriator.In the case of wrong understanding between the user and the misappropriator,if the misappropriator does not constitute the crime of misappropriation of public funds,the user cannot establish the crime of misappropriation of public funds alone.