A Study On The Crime Of Embezzlement In The Early Republic Of China From The Judicial Archives Of Longquan

Before the revision of the law in the late Qing Dynasty,there was no systematic system of embezzlement crime and criminal punishment in the traditional law,and the crime of embezzlement in the modern sense.As an independent charge,the crime of embezzlement first appeared in the Draft of criminal Law in 1907.In the early period of the Republic of China,the legislation of the crime of embezzlement was extended in the Provisional New Criminal Law,which became an important basis for regulating the crime of embezzlement of property in the early years of the Republic of China.According to previous studies,the introduction and development of the crime of embezzlement and its local judicial practice in the early years of the Republic of China need to be further studied.The crime of embezzlement in the Criminal Law Draft of 1907 refers to the criminal act of disposing or taking possession of others’ property without authorization.This legislation imitated the provisions of "extortion crime" in The Amendment of Criminal Law of Japan.However,the crime of embezzlement is not a new crime completely originated from foreign countries.The articles of "the crime of corruption","the crime of unauthorized selling farmland","the crime of unauthorized using and selling others ’property in one ’ s own custody" and "the crime of embezzling lost property" in the traditional law have already appeared the rustal form of the crime of embezzlement.Thus,this new legislation is the result of reforming the relevant provisions of the traditional Law of China by learning the criminal law theories of Germany and Japan.In the process of reform,the crime of embezzlement and theft and other property crimes as well as civil and administrative provisions are completely separated,and the crime of embezzlement has become a professional term of criminal law endowed with new connotations.The legislative reform of the crime of embezzlement provided a basis for the judicial practice in the early Republic of China,while the case materials of the crime of embezzlement in Longquan Judicial Archives reflect the gap between the judicial practice and legislation of the crime: To a certain extent,the complexity of the practice of the crime of embezzlement from procedure to entity is reflected in the diversity of prosecution methods,the diversity of words used in the crime of embezzlement under the background of traditional pleadings and the vagueness of the application of constitutive elements.This complexity also brings some difficulties to the classification of cases: The crime of embezzlement is further divided into three sub-charges: ordinary crime of embezzlement,crime of business or official embezzlement,and crime of embezzlement of lost property.While the crime of the commercial or official embezzlement takes commercial or official occupation as its essential element,the crime of embezzlement of lost property takes possession of the lost property as its essential element.Therefore,the latter two have certain particularity compared with the common crime of embezzlement.However,in the early years of the Republic of China,there was no case of embezzlement of lost property in the embezzlement cases of Longquan,and the cases with directors managing local public welfare undertakings as defendants did not fully meet the requirements of official and commercial embezzlement in terms of constituent elements.Therefore,based on the gap between legislation and justice,as soon as the functional characteristics of director misappropriation cases,we divided the embezzlement cases into ordinary embezzlement cases and duty embezzlement cases.In these two cases,the law of embezzlement has not been fully applied in the sense of criminal law.Although legislators took great pains to distinguish the crime of embezzlement from other property crimessuch as theft,civil and administrative provisions.there was a huge gap between the judicial practice and legislation of Longquan in the early Republic of China,which was not only reflected that part of the crime of embezzlement cases were reported and dealt with as theft,fraud and other cases.It is also manifested in the confusion of recognition and undertaking of civil and criminal liability in a large number of common embezzlement cases,and the confusion of administrative and criminal trial methods in duty embezzlement cases.There are three reasons for this phenomenon:First,the separation of the "civil" of the "criminal" in modern legislation orientation is one of the important reasons caused the above phenomenon,in this context,embezzlement case on legislation from the traditional "folk draws" into "minor criminal cases",however,because the legislation of the crime of embezzlement is not perfect and in longquan local society based on small-scale peasant economy,these cases as a fine things harmful to the society did not change.Thus,it causes the intersection and competition with civil illegal acts.Second,the county-level administration and judicature were not completely separated at the beginning of the Republic of China,and the overlapping identities of judges in cases and their value orientation to solve disputes also affected the "non-criminal" trial of cases.Third,the social composition of the party concerned and its application of litigation strategy will also affect the trial of the case.In order to obtain litigation benefits to a greater extent,the party concerned often takes advantage of the crime of embezzlement law to file criminal proceedings against some minor disputes and exert influence on its own status.Therefore,to some extent,the "non-criminal" action of the county governor is a response to the social composition and litigation strategy in the case.