Research On The Crime Of Misappropriation

Law has always been concerned about the normative system. At the significance of the motto "no act, no crime", all the acts constitute a crime are the basement, the evaluation function of criminal law revolves around the implementation of acts. Constitute a criminal act in theoretical vision, in the normative level, the behavior is an abstract type of existence, its abstractness and categorization of legislation are the inevitable result, it is bound to be modelling, misappropriated crime is able to study when modelling behavior as a prerequisite for the crime category. Different from specific provisions of criminal law adhere to study in the kindred object or similar object into the category of crimes, as well as a concrete accusation, this thesis researches the modality of perpetrating act in order to have a whole research of the kind of crime, the formation of an overall kind of the crime of misappropriation, Research on misappropriation acts feature will be the crime of misappropriating public funds,the crime of misappropriating special money or property,the crime of funds misappropriation,guilty of infidelity handle property,guilty of infidelity handle capital,the author wants to use these crime forms to link up misappropriation acts, trying to have a detailed and thorough discussion on the acts of misappropriation crimes. The criminal law interpretation of the crime of misappropriation has a leading position in terms of quantity, or content at the existing interpretation, this thesis tried to jump out of the hermeneutics of the criminal law, study is on the metaphysical basis of the misappropriation theory; with combination of legislation and relevant judicial interpretations, the author pays close attention to the judicial practice and proposes some corresponding solutions.The full text is about 215,000 words, which is divided into six chapters: Chapter I Introduction to the crime of misappropriation. This chapter primarily discriminates the acts of misappropriation from the acts of theft, possession and third party delivery, in order to clarify the concept of misappropriation acts through the analysis. Consider the modality of using are contained in the act of misappropriation acts, with the exception of the types of misappropriation crime in our country's criminal legislation, but also included the new establishment of the crime of breach of trust which contains embezzlement acts as the elements of crimes in the Criminal Code Amendment process, from the perspective we can study on the intension, extension and the legal interest to protect. It also reviews and summarizes our country's legislative evolution on the crime of misappropriation.Chapterâ…¡Basis theory of the crime of misappropriation. Relationship is essential to the Criminal Law, this chapter selects the external relationship of the crime from the should-be perspective:under the criminal law-the economy and the crime of misappropriation which are the product of the market economy development and departure from the market economy system. From an economic point of view of some of its separate economic and non-economic, it is considered that the economic crimes implemented by separating from the corruption crime; comparison with criminal law-other legal department and the crime of misappropriation, from the principle of possession is exemption, the act of misappropriation used to be identification of the infringements in history but now crime, from the crime of misappropriation to explore the mission of the Criminal Law interests, the acts are diverted for other purposes and is a violation of human trust relationship, then it explores in complete denial and violation of the agreement between these two opposing extremes for crime of embezzlement; above the criminal law-political structure, ideology, and the crime of misappropriation, with the changes in credit policy, credit behavior of the crime of misappropriation will become more difficult to define. Acts of evil people in our country's regulation of crime assume the responsibility of the evaluation function of the object,which contradicts with the clear principle ruling by statute law.So we should firmly base on objectivism to correct the tendency of subjectivism in present criminal legislation.Chapterâ…¢. Legislation theory of the crime of misappropriation. Few other countries of the world will be stipulated the crime of misappropriation as a separate type of crime to be charged.The provisions of the Penal Code in our country are similar to the crime of embezzlement in Japan, Germany and other countries, but can not be the same. Compared with China's legislation, the general behavior of misappropriating public funds will be incorporated into regulation system, but the object of crime and culpability are different. The scope of subject of criminal responsibility in other countries is greater than that of our country; socialist countries inherit the distinguishing protection principle. Learning from foreign countries, we can have great reference meaning.Chapter IV. Constitutive requirements of the crime of misappropriation. From the legal hermeneutics in this chapter, it explains the constitutive elements of the above crimes separately, it runs from the point of view of respects of object, objective aspect, subject and subjective aspect and describes in altruistic acts of the crime of misappropriation. The crime of misappropriating public funds is a common crime in judicial practice, this chapter especially focuses on it, respectively, takes advantage of his position on convenience, in the final for personal use, three types of embezzlement of public funds, the range of natural person subject, the unit subject deal with issues such as misappropriation.Chapter V. Morphology of the crime of misappropriation. Combined with crime theory, this chapter will be diverted to the problem exists in the form of crime, focused on the issue, and discussed the unfinished form, accomplice in the crime and the quantity of crime. Judicial determination for misappropriation has not been used,it should be accomplished offense rather than criminal attempt; identity has focused on the common embezzlement, such as criminal responsibility issues; in the part of quantity of crime, the discussion continues to punishment principle of continuous crime and implicated offense,committed in principle that the misappropriation of public funds to solicit, for accepting bribes or illegal activities constitute a crime, should belong to implicated offense; for bribery in misappropriation of public funds should be distinguished strictly between the profit-making activities in embezzlement of public funds. Only when someone gives public funds to others in order to solicit or accept property in exchange, which belong to typical bribery and should constitute a crime in accordance with the concurrent punishment for several crimes principle stipulated in the interpretation act.Chapter VI. Equilibrium theory of the crime of misappropriation. This chapter discusses from the equilibrium theory to explore the equalization in specific counts of the crime of misappropriation, I hope it will be able to promote a balance between this crime from that crime, to ensure that criminal charges of misappropriation of all types are equivalent in longitudinal direction (this crime from that crime, between this sentence and that sentence).There is a excessive consideration of the factors in criminal law or regulation which are not the key evaluation factor in social harmfulness and personal dangerousness. This leads to inequality in law protection and range of adjustment and control, it makes the same degree of misappropriation based on acts of subject and criminal object separately adjust by embezzlement crimes or the misappropriating public funds, resulting in unequal protection of non-public ownership economy; in transverse direction (this crime and this sentence) equivalent to the guilt, according to study of fuzzy theory, it points out that the excessive refinement of the misappropriating public funds will limit the legal application; finally, the author makes some proposals to improve the legislation of the crime of breach trust.