Research On The Knotty Issues Of The Crime Of Duty Embezzlement

With the development of industry and commerce,the expansion of market operators and the flexibility of labor and employment,the frequency and severity of crime by taking advantage of duty have increased.The crime of duty embezzlement is one of the most frequently occurring crimes by taking advantage of duty.However,the provisions on the crime of duty embezzlement in the current Criminal Law of PRC are insufficient and unclear,so disputes in practice occur from time to time.In these disputes,the recognition of the object of the crime,the recognition of the elements of objective acts and the specific scope of the targets of the crime are the more controversial and prominent issues in recent years.Based on the theory of substantive explanation,this paper probes into the history and the latest legislative amendments of the crime,clarifies the legal benefits of the crime,defines the meaning of the crime of duty embezzlement by taking advantage of the convenience of duty embezzlement,and discusses and refines the specific scope of the crime.Specifically,the object of the crime is the property rights and interests of the enterprises and the public power of the enterprises,which is the specific manifestation of the division of the crime and the crime of official embezzlement in history and the specific reflection of the dual protection of the rights and interests of enterprises under the Criminal Law of PRC."Taking advantage of his or her position" refers to taking advantage of one’s position to dominate or control the property of enterprises.This objective behavior element not only infringes the property rights of the enterprise,but also the public power of the enterprise.In determining this objective behavior element,it is not necessary to consider whether the actor has a leadership position,whether he or she has been working for a long time,whether he or she is a regular employee,and whether his or her position is obtained by cheating;therefore,ordinary,temporary and dispatched employees,and persons who commit crimes by taking advantage of their positions by cheating may all commit the crime of duty embezzlement.In today’s society,the connotation of property has been greatly expanded.In order to protect legal rights from crimes,it is necessary to expand the interpretation of "property of one’s own organization".On the basis of whether an enterprise is a legal person,in addition to the property of companies,enterprises and other entities,the property of individual companies,partnership enterprises,owners’ committees,branches of legal persons and other entities are also the targets of the crime of duty embezzlement by taking advantage of duty.Based on the ownership of the property,"property of the enterprise" includes both the property owned by the enterprise and the property the possession of which cannot be changed without legal procedures;based on the existing form of the property,"property of the enterprise" includes both tangible property and intangible property.