Study On The Constitution Of Embezzlement Crime

Crime of occupying property is an old and common crime of invading other ones'properties in foreign counties. This type of crime has been systematically and comprehensively researched in the foreign criminal law field. Although the history of crime of occupying property in our country has several thousand years, there is still deep gap in the progress of the research work on this issue. After the liberation of china, under the influence of the planned economy system, there's several decades stagnancy in research. The work has been restarted until the revision of the criminal law in 1997. Currently the systematically theoretical research work hasn't been comprehensively discussed and there's still very few books and articles upon the crime of occupying property. This article consists of five chapters which analyze the crime of occupying property from every aspect. The author hopes it could draw more attention upon the crime of occupying property by the analysis of the consistence of this type of criminal to perfect the analysis work of the crime. Chapter ⅠIntroduction Ⅰ. The history of crime of occupying property. As a behavior of criminal, crime of occupying property has a long history in china, tracing back to the period of warring states. From the dynastic evolution of Chinese criminal law. The legislatures made the crime of occupying property a felony and only punished the persons who invade the lost properties of the others in the beginning due to the effect of feudalistic system. With the development of the society the behaviors of crime of occupying property have become more and more diversified and the ruling class also made the different regulations based upon the category of the invaded properties. The crime of crime of occupying property has regained the recognition, which has a very close relationship with factors such as the economic development and the reform of the economic system etc. The appearance the law is the result of protecting the private rights of the citizens and corporations, fully representing the functions of protection. Ⅱ. Legislation mode of crime of occupying property. Typification has been taken as the legislation mode in the corpus juris. There are three kinds of crime of occupying property –the crime of occupying property, embezzlement and corruption. Since the embezzlement has been taken as part of the crime of occupying property, the corruption which is only different in the criminal subject comparing with the embezzlement is still adopted into the framework of the crime of occupying the property. Ⅲ. The concept of crime of occupying property. The precise definition of the crime of occupying property is that for the purpose of illegally occupying the properties of others', having the properties in his/her custodial, lost properties or buried property as his/her own and the quantity is large and refuse to return the property. This description while complying with the law rules reveals not only the subjective and objective features of the crime of occupying property but also in some extent gives the features of the main body and object thus reflecting the real meaning of the crime of occupying property. Chapter ⅡObject of crime of occupying property and criminal object Ⅰ. Object of crime of occupying property. It's the ownership of the private property, not including the public property. Because this crime can be applied to the private prosecution procedure. As the 'tell then deal'private prosecution, the basic characteristic is that the private interest is impinged by the crime behavior. Excluding the ownership of the public property from the object of the crime of occupying property also makes imputation system of the property crime in criminal law more systematic and logic. In practice some scholars believe that the object of the crime of occupying property should include the ownership of public property, such opinion is an expanded explanation of the law regulations due to the lack of basis. As law regulations, its meaning should be precise and definite, the explanation of them should be scientific and lawful, otherwise it will affect the seriousness and scientific ness and finally lead to the losing dignity of law. This result is more serious than the harm of omitting one or more types of crimes. Ⅱ. Criminal object of the crime of occupying property. It consists of 1) trusted others'property. Trusted keeping in the criminal law is based on consign relationship between two parties. This kind of relationship can beeither keeping contract and consign contract with the purpose of safekeeping or lease contract, transport contract and process undertaking contract with the safekeeping as the attached responsibility. This kind of safekeeping should be the unification of subjective and objective. Both non physical object and real property could be the criminal object of this crime. Intelligent property right and illegal property couldn't be the criminal object of this crime. 2) left object. Left object is different from the lost object in term of their definition, but they have no substantial distinction in the law field. So the lost object is also included as the criminal object of the crime of occupying property. 3) buried object. Buried object in the crime of occupying property should be indicated as the property own by an individual. The precise definition of buried object is the object buried underground with definite ownership. Chapter Ⅲthe objective aspect of crime of occupying property Ⅰ.Legitimate having. Crime of occupying property take legitimately to have other people's belongings as the premise, this is the process that legitimately having transformed to illegal occupying, this is remarkable differences that crime of occupying property different from the larceny and so on other infringement property crimes. Legitimately having must be only restricted in conforming to the criminal law stipulation. The scope be limited too narrowly, it will be able partial seriously to violate the other people property rights beside the criminal law regulation. This is not only disadvantageous to protect the property rights, but also damages legal fair. Ⅱ.Illegal occupies for oneself. Illegal occupies for oneself has the usual two kinds of forms: Firstly, behavior of using the thing, the income right and the disposition right. Secondly, the other behaviors changing having except disposition right. Ⅲ. Refusing returns or refusing handing over. Its definition should invade the other people belongings after the behavior that the right person request to return but refuses to hand over or to return. In the ordinary circumstances, the right person's request must take "refuses returns or hands over", but in the special circumstance, The right person because of the objective reason is unable to carry on the request power, but the person's behavior was already obviously indicated it could not return or hand over the holding thing, it should be recognized crime of occupying property too.