Qualitative Research On The Behavior Of Embezzlement Of Illegal Causes

Whether the act of misappropriation of something for a wrongful reason can be established as a crime of encroachment involves not only the provisions of the criminal law on the crime of embezzlement,but also the payment system for unlawful reasons in civil law.From the perspective of extraterritorial civil legislation,when the payment or entrustment act involves illegal reasons,the corresponding financial relationship is adjusted from the perspective of whether the payer has the right to claim restitution.Theoretically,the issue of the characterization of the act of usurping the wrongful cause is controversial,and the main theories are affirmative,negative,dichotomy and compromise.The existing relevant research in China’s criminal law theory mainly draws on the theory of Japanese criminal law,and there are many supporters of the affirmative theory and the dichotomy theory,but there is a problem of insufficient argumentation,and the actual situation in our country is not fully considered.Quasi-certainty of the act of misappropriation of the wrongful cause is provided that the differences in the disputed views are sorted out.Specifically,scholars have different opinions on theoretical issues such as the meaning of "payment",the relationship between criminal law and civil law,the premise of the judgment of illegality,and whether there is a distinction between payment and entrustment in criminal law.The conditions for the establishment of the act of misappropriation of the wrongful cause are analyzed,and the concept of payment is defined in criminal law.Payments in the narrow sense refer only to the final transfer of property,while payments in a broad sense include entrustment within their scope,and in both broad and narrow terms,the choice of narrow terms is conducive to avoiding confusion between concepts.The root cause of qualitative controversy also lies in the different understandings of scholars on the relationship between criminal law and civil law,and whether criminal law is based on its nature or independence from civil law affects whether it is necessary to distinguish between payment and entrustment in criminal law.In the perspective of the legal system,criminal law is the post-secondary law of the civil law,and the civil law is the pre-law of the criminal law,and the criminal law as the post-law has certain subordinate attributes to the civil law as the pre-existing law,but this subordination is not absolute.The reason is that criminal law has its unique normative purpose and value,so criminal law has both certain subordinate attributes and a certain independence in civil law,and on this basis,the judgment premise of determining the illegality of the property for the illegal cause of encroachment is sought.Compared with the strict monism of illegality and the theory of relativity of law,the moderation monism of illegality can maintain the modesty of criminal law under the principle of maintaining the unity of legal order,and can also play the respective functions of criminal law and civil law.The analysis of the doctrine of controversy can lead to the conclusion that the dichotomy theory is more reasonable than other doctrines,so it is necessary for the criminal law to distinguish between payment and commission,which is conducive to the determination of crime and non-crime.The act of misappropriating the object of the wrongful cause can be divided into the act of misappropriating the payment of the wrongful cause and the act of misappropriating the object entrusted to the wrongful cause.In the act of misappropriating the entrusted property for illegal reasons,according to whether the source of the property before the entrustment is legal,it can be divided into the entrustment of the unlawful reason entrusted property with the lawful source and the unlawful entrustment of the illegal source.For the act of misappropriating the payment for the wrongful cause,the crime of embezzlement is generally not established,and the exception cannot be excluded,that is,the unlawful cause only exists on the recipient’s side.Where the act of encroaching on the unlawful source of the entrusted property for illegal reasons shall be affirmed to establish the crime of embezzlement.For the act of entrusting property for illegal reasons where the source is illegal,if the property is embezzled knowing that the nature of the property is stolen goods,it meets the constituent elements of the crime of embezzlement and commits the crime of stolen goods,but it can only be punished with the crime of stolen goods.If the trustee only learns that the nature of the property received is stolen property after embezzling the entrusted property,it should be determined that he has no subjective intention to commit a crime of stolen property,but his behavior meets the constituent elements of the crime of embezzlement,so it is sufficient to punish it only according to the crime of embezzlement.