Study On Judicial Determination Of Crime Of Duty Encroachment

Article 29 of the 11th Amendment of the People’s Republic of China increases the statutory maximum sentence for the crime of embezzlement from 15 years to life imprisonment.This amendment makes the statutory penalties for the crime of duty encroachment roughly the same as those for the crime of embezzlement and larceny,greatly increasing the intensity of the attack on the crime of duty encroachment,and achieving equal protection for all types of ownership economy.Nowadays,with the rapid development of social economy,more and more people devote themselves enthusiastically to investment and entrepreneurship,resulting in a rapid increase in the number of crimes of duty encroachment,and more and more diversified means of crime.However,there is no uniform standard in the subject of the act,the object of the crime and the way of the act,and even the phenomenon of "different sentences for the same case".Therefore,it is necessary to further study the difficult problems of this crime in order to achieve the unification of judicial practice and theoretical research.Starting from the legislative intention,this paper mainly discusses from the following aspects:The first part analyzes the legislative evolution and perfection of duty encroachment crime.After the founding of New China,there was no crime of duty encroachment.This was because the social background at that time belonged to a single economic system of ownership by the whole people,so the law only stipulated the crime of corruption.With the continuous development of socialist market economy,the economic development pattern with public ownership as the main body and multiple ownership economies coexisting gradually takes shape,and the crime of duty encroachment arises at the historic moment.It can be seen from the legislative evolution and perfection of the crime of duty encroachment that the legislative purpose of this crime is to protect the integrity of the duty and the property right of the unit.The second part analyzes the subject scope of duty encroachment crime.Although the law stipulates that the subject of the crime is the personnel of the company,enterprise or other units,it is not clear and specific.This article thinks that the subject of the crime should be the person who is in charge of,manages and handles the property of the unit because of holding a certain position in a specific unit,and can not restrict the form of ownership of the unit.The personnel of state-owned units can also become the subject of the crime of duty encroachment.As for the entrusted agent,it is considered that the entrustment agreement does not make the doer and the company form a labor service relationship in fact,they form an equal principal-agent relationship,and the doer does not have the subject qualification of the crime of duty encroachment.However,if a de facto service relationship has been formed,it should be considered that the actor has a certain position.In addition,the personnel of the company being established and part of the qualified associates all meet the subject scope of the crime of duty encroachment.The third part analyzes the identification standard of using job convenience.This paper analyzes the deficiencies of "managerial affairs" and "continuous affairs" respectively,interprets"duties" in accordance with the purpose,discusses the opposition of "single object theory" and"double object theory" and the reasons,and advocates the support of "double object theory".When determining the connotation of "duties",the guiding principle shall be the interests of the protection law,and the key shall be the formation of substantial control and dominance of the property of the unit.The control and dominant position of substance can be judged from two aspects:possession of substance and norms.When the actual control,control unit property and engaged in affairs have a certain correlation,can be initially confirmed that the doer made use of post convenience..In addition to determining relevance,we should further determine the causality between the doer’s illegal possession of unit property and the "position" used.The fourth part analyzes the objects of the crime of duty encroachment.In the past,the property of the unit should be limited to the property with ownership.However,with the diversification of social and economic forms,this view can not accurately identify the crime.The object of the crime should include not only property with ownership,but also property managed,transported and possessed by the unit.Not only physical objects,but also property interests,such as virtual property.At the same time of property mixing,the entrepreneur’s encroachment on enterprise property should not be treated as the crime of duty encroachment,but a common civil dispute.In the analysis of whether transport can be the object of this crime,this paper advocates the possession theory,and takes the criterion of possibility of fact domination as the judgment rule of possession ownership,on this basis to distinguish the case for discussion.