| Sun Jing,a salesperson of a dairy company,and in order to create performance for the manager,fabricated the fact that Nanjing Sanjiang College needed to supply milk,and used the forged administrative seal of Nanjing Sanjiang College and the private seal of the person in charge of milk purchases to sign a "supply supply" with the company.From the date of signing the contract,the company delivered milk to Sun Jing’s house every day,with a total of 321500 copies of milk.Sun Jing instructed her mother to destroy all the milk every day.It has been identified that the value of the milk involved in the "supply contract" is 0.95 yuan each,and the total value of321500 milks is 305425 yuan.From the beginning to the end,the defendant,Sun Jing,only paid 7,380 yuan to the company in the name of Sanjiang College,and the rest of the milk payment was in arrears for various reasons and excuses until the incident occurred.In the judgment of the case,the court determined that Sun Jing did not have the purpose of illegal possession subjectively,and characterized her behavior as the crime of deliberately destroying property.However,there are many disputes in the criminal law jurisprudence of the court’s decision.In the judgment of the case,the court held that Sun Jing subjectively did not have the purpose of illegal possession,so it characterized her behavior as the crime of intentional destruction of property.However,there is a lot of controversy in the criminal law circle about the court’s decision.First of all,on the discussion of the purpose of illegal possession,whether the purpose of illegal possession has the function of distinguishing the crime of obtaining property and the crime of destroying property,there are mainly "subjective over elements theory" and "criminal intentional content theory" in academic circles.Among them,the theory of the subjective overriding factor is a common theory in the academic circle,and it is believed that the purpose of illegal possession is a subjective overriding factor independent of criminal intention in property crimes.The functions of acquisition-type crime against property,acquisition-type crime against property,and destruction-type crime against property.However,there are many cases in practice that do not conform to the subjective excess factor.In the absence of express provisions in the criminal law,even if the systematic interpretation is used,it cannot be strongly proved that the purpose of illegal possession is the subjective excess factor of the acquisition-type crime of infringing property,and it is regarded as the subjective excess factor.The point of view of exceeding the elements also violates the principle of statutory crime and punishment in our country,and in fact,the crime of property infringement of acquisition type is committed for the purpose of severing,so the purpose of illegal possession is included in the content of criminal intention.Regarding the characterization of the first possession and then destruction type,Sun Jing’s behavior should be defined as the acquisition type crime of infringing property.Secondly,on the issue of what kind of acquisition-type crime of property infringement is specifically identified,there are two views: the crime of occupational embezzlement and the crime of fraud.The main reason for the debate on these two crimes is that the current criminal law academic circles whether the behavior of the crime of occupational embezzlement includes the exclusion of embezzlement.Other means of defrauding,stealing,etc.,are divided into "separation theory of embezzlement and deception,stealing and other illegal means" and "combination theory of embezzlement and fraud,stealing and other means".and other illegal means,when the actor uses his position to facilitate the illegal possession of company property by means of fraudulent means,the actor establishes the crime of fraud and the crime of embezzlement at the same time.The principle of application of law that heavier law takes precedence over lighter law characterizes behavior. |
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