| In the course of Graduate Legal Assistant Project in Criminal Tribunal ofHongkou District People’s Court, I came into contact with many hugely controversialcriminal cases involving misappropriation of funds, and often discussed with judges.During the internship, I also got an opportunity to assist a judge to write threechapters about non-national staff crime involving taking advantage of duty of a bookcalled "Practice of Justice of criminal cases involving taking advantage of duty",which was compiled by the Shanghai Municipal Higher People’s Court. They werecrime of administrative misappropriation, crime of misappropriation of funds, andcrime of non-national staff taking bribes. From that, I found that there existed manyproblems worthy of further study in the crime of misappropriation of funds. Butlimited by the practice article nature and its length, I was unable to detail the existenceof various problems in this crime. So based on the interest of this crime, and also tocompensate for this little regret, I chose the topic for my graduation thesis. I hope tosum up all the problems encountered in the course of my internship, thus to draw asuccessful close for my three-year theoretical learning career and a three-month courtpractice experience.Our criminal theoretical circles usually divide property crimes into possessioncrime and misappropriation crime. The former attracts widespread attention due to the greater harm to society; the latter yet is discussed in the embezzlement of public funds.As a result, the crime of misappropriation of funds belonging to property crime issnubbed. In fact, there are still a lot of problems worth to further study. For the subjectof this crime, all kinds of economic agents constantly change with the socialdevelopment, which caused a considerable controversy in the theoretical circles ofwhether private owners and a non-national staff who operates state-owned assets canbe the subject of this crime. For the objects of this crime, their forms are ofdiversification, which raised a lot of controversy of whether securities, vouchers andelectronic currency can be regarded as capital. Therefore, based on the theoreticalresearch and arguments, this paper focused on the crime of misappropriation of funds,and then selected some representative difficult problems in judicial practice cases toelaborate. In addition, when investigating the stopped morphology of the crime ofmisappropriation, this paper attempted to start from a new perspective, i.e. using thelegislative mode of criminal law as a starting point, and through the interpretation ofthe relationship between "move" and "use" to clear the position of dealing with thefunds in the crime, and then make qualitative of the "move but have not used"situation. For the subjective aspects of this crime, this paper also broke the routine,putting the objective behavior—"non-refundable" to the subjective aspect. Throughexploring this external behavior to compare its subjective state of mind with "do notwant to give back" and "illegal possession purpose", then to draw the boundaries ofthis crime and crime of official embezzlement. Under the inspiration of the crime ofmisappropriating public funds having the possibility to turn into the crime ofcorruption, this crime is also possible under certain conditions. So I try to useconvertible guilty theory to detail such a possibility, and put forward that when thebehavior of misappropriation of funds constituted a crime, and the behavior’s mindturned into the purpose of illegal possession, this crime can also transformed into thecrime of official embezzlement.This paper is divided into four parts, discussing the problems involved in thejudicial practice of criminal subject, object, objective behavior, and subjective sin.The main contents are as follows: The first part is the subject of the crime of misappropriation of funds. Mainly discussing whether private enterprise owners andstaff commissioned management unit funds can be set up to the subject of the crime.The second part is the definition of the object of a crime of misappropriation of funds,including the connotation and denotation of the unit funds to elaborately clear thescope of funds. The third part is the definition of the objective aspects ofmisappropriation of funds. By analyzing the relationship between "move" and "use"to explain the essence of this crime and the "moving without using" situation. Theforth part is the subjective aspects of the crime of misappropriation of fund, bydefining the difference between the "non-refundable","do not want to return" and"purpose of illegal possession", a clear distinction between this crime and the crime ofcorruption is drowned. And combination of convertible guilty theory, the possibilityof transforming into the crime of embezzlement is also explored. |
