Research On Difficult Problems Of Judicial Application Of Crime Of Official Embezzlement

As a kind of crime associated with the development of market economy,duty crime shows a high trend in recent years.In judicial practice,due to the ambiguity in the legislation of duty encroachment crime,the academic circle and the judicial practice circle have different views on many constitutive elements of the crime,resulting in the frequent occurrence of different sentences in the same case.This is very detrimental to the maintenance of judicial credibility and the implementation of the principle of legality.From the theoretical point of view,the current criminal law educational world about the main body of job occupation crime determination,the connotation of "using the duty convenience",the behavior of single and multiple as well as to "the unit property" and "possession" know that there are many divisions,personnel in judicial practice in the concrete situation of different criteria that the requirements in the face.To this end,the full text select six typical dispute cases as a sample case,by collating and analyzing the judicial practitioners to understand these elements and the reason of the differences on the basis of the criminal law theory and judicial practice,reinterpret job occupation crime,the constitutive requirements of the elements system to review and analyze about specific standards: The qualified subject of this crime must have two key elements,that is,the identity of the staff is the formal element,and the administrative authority is the essential element based on it."The use of job convenience" should be interpreted as the staff in accordance with their work content on the authority or authorized by the company and other units to control,control and dispose of the company’s property management authority,the formation of the possession of the company’s property,control,control of the convenient conditions,and the use of this convenience to seize the unit’s property;By making it clear that the crime of duty encroachment is based on the crime of encroachment,it can be seen that the interests of the protection law should only be the ownership of unit property,and the behavior mode of this crime is limited to the single act of encroachment,not including stealing and cheating.When determining "property of the unit",the second paragraph of Article 91 is essentially a fabricated legal provision,so it should not be applied by direct reference to this provision,but should be based on the guidance of the Supreme People’s Procuratorate on the typical case of "Huang and Duan’s duty encroachment".That is,"the property in the management,use and transportation of non-public companies and enterprises should be regarded as the property of the unit";The understanding and cognizance of "possession" should adopt "continuous definition",that is,"possession" should not only have the objective dominating fact and the meaning of possession,but also be controlled by the evaluation of social norms.The sin of job occupation crime and relevant crime qualitative divisions,combined with the legitimates of job occupation crime laws,and behaviors of the elements of the constitutive requirements definition,clear job occupation crime is not a "company,corporate corruption",relation with stealing the cross does not exist in the competition,but with embezzlement has an obvious affinity,form law concurrence relationship with embezzlement.