A Probe Into The Difficult Problems Of The Crime Of Misappropriating Public Funds

The beginning of ancient China can be traced back to the xia dynasty,as long as there is a state,there is a charge against corrupt officials.Han dynasty have been specified: officials who embezzle public funds will be punished severely,this was the original form of the crime of embezzlement today.The behavior pattern of the crime of misappropriation of public funds is that the state functionaries take advantage of their positions to make public funds separate from their units and put them under their control.This kind of crime causes damage to the property of the unit and the integrity of duty behavior,so it is punished by the criminal law.The crime was first criminalized in 1997,the crime of misappropriation of public funds has been vigorously attacked,but there are still some defects in the legislation.In the crime of embezzlement,the lawmakers set limits on "personal use" and "specific use of public funds",this regulation has been controversial in theory and practice.The use of public funds and whether the specific use is subjective or objective is directly related to the determination of specific cases.The understanding of the above elements is of great significance to the identification of crimes and their forms.The relevant authorities have made three legislative and judicial interpretations of this crime,but there are still some deficiencies.Based on the essence of protecting legal interests,this paper tries to put forward the deficiencies of the legislation and corresponding improvement measures.Whether public funds are "for personal use" does not affect the extent of infringement of legal interests by embezzlement.The essence of this crime is that the perpetrator damages the property of the unit for personal interests,and whether the user of public funds is an individual or a unit only represents the direction of public funds.The second and third cases of "personal use" in the legislative interpretation in 2002 are both the act of transferring public funds to a unit for use,which indicates that the crime itself does not preclude the use of public funds by other units.Taking "for personal benefit" as the constitutive element of the crime instead of "for personal use" is helpful to judge whether the actor constitutes a crime in essence.This concept is only based on the behavior of the embezzler,so there is no need to consider the subsequent use of public funds,which is beneficial for the judicial organs to confirm the criminal facts in practice.The provisions on the specific use of public funds may violate the principle of prohibition of repeated evaluation.The specific use of public funds reflects the subjective malignancy of the actor and should be defined as the circumstances of sentencing for the crime.The amount and time of embezzlement should be the criterion to measure the social harmfulness of embezzlement.The amount and time of misappropriation of public funds as the constitutive elements of the crime is conducive to regulating conviction and sentencing.The problem of the crime pattern of "moving but not using" will also be solved through this approach.