On The Means Of Crime In Embezzlement

There is no country without corruption in the world, nor are the countries struggling against the corruption. But the situation in China is considerably serious, which is especially showed in the crime of corruption in the criminal law.The theoretical study on the crime of corruption has achieved good progress. However, many doubtful points and vacancy still remain in general.Any State functionary who, by taking advantage of his office, appropriates, steals, swindles public money or property or by other means illegally take it into his own possession shall be guilty of embezzlement.Any person authorized by State organs, State-owned companies, enterprises, institutions or people's organizations to administer and manage State-owned property who, by taking advantage of his office, appropriates, steals, swindles the said property or by other means illegally take it into his own possession shall be regarded as being guilty of embezzlement.Whoever conspires with the person mentioned in the preceding two paragraphs to engage in embezzlement shall be regarded as joint offenders in the crime and punished as such.Persons who commit the crime of embezzlement shall be punished respectively in the light of the seriousness of the circumstances and in accordance with the following provisions:An individual who embezzles not less than a certain amount shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to death and also to confiscation of property.An individual who embezzles not less than a certain amount but less than a certain amount shall be sentenced to fixed-term imprisonment of not less than five years and may also be sentenced to confiscation of property; if the circumstances are especially serious, he shall be sentenced to life imprisonment and confiscation of property.An individual who embezzles not less than a certain amount but less than a certain amount shall be sentenced to fixed-term imprisonment of not less than one year but not more than seven years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than seven years but not more than 10 years. If an individual who embezzles not less than 5,000 Yuan and less than 10,000 Yuan, shows true repentance after committing the crime, and gives up the embezzled money of his own accord, he may be given a mitigated punishment, or he may be exempted from criminal punishment but shall be subjected to administrative sanctions by his work unit or by the competent authorities at a higher level.An individual who embezzles less than a certain amount, if the circumstances are relatively serious, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention; if the circumstances are relatively minor, he shall be given administrative sanctions at the discretion of his work unit or of the competent authorities at a higher level.Whoever repeatedly commits the crime of embezzlement and goes unpunished shall be punished on the basis of the cumulative amount of money he has embezzled.As for the means of corruption of crime, I put forward my point which is different from the prevalent one."Appropriate"as one of the means is more often than not defined as"taking advantage of duty to encroach the supervisee and directed public money or property". I hold that if it goes like this, the encroachment of the fund illegally established financial reserve in some offices cannot constitute crime. Thus"appropriate"should be defined as"the act of direct encroaching public property held because of duty relation"."Steal"and"swindle"are generally seen as means of corruption of crime without disputes. But the academic circle usually sees"appropriate"as the omission means, for it means taking up public property that"should have been handed over to the state", which is passive act I deem that"should have been handed over to the state"only means sequential element and cannot constitute crime."Should have been handed over to the state"and"criminallyencroachment"is the complete"appropriate"action, which is active action. Article no. 394: Any State functionary who, in his activities of domestic public service or in his contacts with foreigners, accepts gifts and does not hand them over to the State as is required by State regulations, if the amount involved is relatively large, shall be convicted and punished in accordance with the provisions of this Law.Of the criminal"the state functionary accept gifts in domestic and diplomatic business, which should have been handed over to the state according to the state regulation"specifies"should have been handed over to the state"as the necessary element of the crime. So it is typically an omission means. Many scholars hold that"steal"and"swindle"are object can only be the public property co-supervised and directed by the actor and others that stealing the solely-supervised or directed public property is"appropriate", whereas actor"swindle"the solely-supervised or directed public property is meaningless. As I see it,"appropriate"is direct occupancy;"steal"is secret occupancy. As for the department,"appropriate""steal"and"swindle", the solely-supervised or directed public property is the original meaning of taking advantage of duty.In the crime of corruption, the objective means of"appropriates, steals, swindles"are similar to the counter-crimes, but due to special constitution of the crime like the special subject and the requirements of the duty, to the coincidence of Article 271 and Article 382, in the author's opinion, it is impossible to be coincident with other regulations of the crimes, nor is it possible to imaginary coincident with other crimes.