| After criminal law was redacted and put in force, defalcation has some disputed problems in the run of justice, which puzzle judicial pidgin and bring prevalent attention of the field of criminal. To solve the problem of defalcations particular apply in judicial practise, High Court and had enacted laws to explain and answer these problems, the country people committee has made lawmaking explain on how to understand use by oneself, these explanation and answer greatly strengthen criminal laws operation, eliminate bifurcation in judicial practise. But these explanation and answer are prevalent apply , they cant radiate all the problems in realism. So we need to make some correlative theory research. Its very important for judicial pactise. In this text, I mostly discuss six difficulty problems in defalcation, to give favorable referenced gist. 1 Main body of defalcation.At first, we retrospected the lawmaking evolvement of defalcation main body, analyzed civil servants essential character: one is he or she has legal degree, another is his (or her) job quality engages in line of duty. Expatiated the bound of civil servant : who work in national department, or national work people without working in national department. There are different attitude and opinion about whether or not grass roots villager committee member and party structure member belong to civil servant. When these people defalcate, judicial servants have not referenced gist, which made the case cant deal with in time. This problem must be settled. The author advanced his opinion combining with law provision. 2 Use by oneself in defalcation.How to understand use by oneself, judicial explanation have a lot of reiteration. Lawmaking department make some lawmaking explanation, according to law provision, including three circses:1. he use the publicmoney or give it to relations or friends or other people; 2. give public money to other unit in individual name; 3. individual decide to give public money to other unit in unit name, figure for individual advantage. 3 Criminal object of defalcation.According to the law provision, defalcations criminal object is public money, but in judicial apply, public property is included in defalcations criminal object. And public money includes the money contracting with corporation, which was decided by the contracts character and fashion, and includes unit treasury, and public moneys accrual , and so on. General public property would not be the criminal object of defalcation except embezzling in retrievaling disaster area , rush to deal with an emergency, flood prevention, uprear, emigration and almsgiving money.4 Sum of defalcation.Law has made definitude provision in sum of defalcation, but the provision was very illegibility, and defalcation is diversiform and complex, there are many bifurcation on how to apply the law. Author analyses three instances: how to calculate the sum of defalcation using the same purpose for many times; how to calculate the sum of defalcation using different purpose for many times; how to calculate the sum of defalcation embezzling public money which was given back last time;5 Complicity of defalcation.In the apply, to judge the complicity of defalcation has three problem: who can be the complicity of defalcation? How to differentiate principal and accessory, when special bosom people defalcate together? If public money was embezzled to someone, whether the user is guilty? To the first problem, in many cases, the user of public money can be the complicity, but according to common elements of together crime, other people can help or instigate civil servants to defalcate. To the second problem, author analyses: if they both have special degree and business, but just using ones degree, should be together crime. If they both using their degree, should be convict separately. To the third one, high courtconsiders user can be complicity, if they are provided with three conditions: 1. user must be natural person ; 2. user and embezzling one are both purposive; 3. impersonality... |
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