The Plight And The Outlet For Judicial Determination Of The Crime Of Embezzling Public Funds

Under the current background of the comprehensive and in-depth anti-corruption struggle,carrying out extensive and further research on duty crime is not only a response to the needs of judicial practice,but also an unshakable responsibility of a legal worker.Meanwhile,it is also the demand of building a society and a country under the rule of law.As one of the duty crimes,the crime of embezzling public funds is the most common and frequent in corruption crimes,its judicial disputes are the most prominent since its establishment.For these reasons,the legislative interpretation and judicial interpretation of criminal law,as well as the trial guidance of the Supreme People’s Court have paid much attention to the crime of embezzling public funds.Statistically,the number of legislative interpretation and judicial interpretation of this crime ranks first in our country’s criminal law interpretation.However,the promulgation of normative documents series has not gained desired good results in trial practice,the judicial determination disputes has not been settled.In the author’s view,all of the above problems mainly result from the following reasons.First,our society development is in the critical period of transformation,social environment and economic system are showing complexity.The crime of embezzling public funds is constantly encountering new situations and problems,which include both theoretical difficulties and practical puzzles.Second,the doctrine of criminal law and judicial practice have not reached to deep integration,leading to theoretical research can’t give judicial practice a prompt and effective response or guidance.Some theoretical researches are superficial,and existing theoretical achievements are not reflected in judicial practice,which makes it difficult to solve the dilemma effectually.Third,there are mechanical application and excessive dependence on articles of law in judicial practice,and a lack of theoretical system or methodology support in the meantime.The judges pay more attention to stipulation of articles and judicial interpretations when they confirm the crime of embezzling public funds,but there is a lack of solutions in theoretical system and methodology to solve puzzles in the specific cases,leading to the same case with different sentences.This kind of judicial determination,which lacks theoretical support,would be difficult to respond and solve hard cases.There are no more than two dimensions in the current academic researches on duty crimes,legislative dimension and judicial dimension.From the perspective of legislation,the perfection of legislation on duty crimes should not only complies with the needs of era development and adds new contents according to the new characteristics and rules of duty crimes,but also sticks to the modesty principle of criminal law,for achieving the goal of strict legislation by grasping and limiting the penalty boundary of criminal law.From the perspective of judicature,how to identify crimes should not only achieves the purpose of cracking down on corruption crimes,but also adheres to the principle of legality,for realizing judicial justice by grasping the identification criteria of crime and non-crime,this crime and that crime.Therefore,from the perspective of criminal justice,through the elaboration and research of relevant criminal law theories,such as legal interests,quasi-abstract potential damage offense and objective punishable conditions,this paper attempts to find solution ideas in theory,and provide effective guidance for the disputes in judicial practice.This paper consists of three parts.The first part is an introduction of judicial determination plight of the crime of embezzling public funds,which brings forward questions in the full text.This paper selects three controversial issues of judicial determination: how to convict when the subject has more than one identity,whether “the act of embezzling without using” constitutes the crime,whether “seeking personal interests” in personal use is the constitutive requirement.The second part is elaboration of above-mentioned theories,the author holds that the legal interest of this crime is the safety of public funds,puts forward to establish a quasi-abstract potential damage offense structure for the crime of embezzling public funds,states briefly the systemic orientation of objective punishable conditions.The third part is to use the above theories to find solutions to the disputes in judicial practice.This paper promotes the following points.The judgment of the subject’s identity should be virtual.Besides,based on the theories of legal interests and quasi-abstract potential damage offense,the embezzlement without using does not constitute this crime.Last but not least,combined with all the above theories,“seeking personal interests” should be an objective punishment condition.