李江职务侵占案的案例分析
发布时间：2019-01-19 11:21
【摘要】：随着改革开放日益深入,我国经济迅速发展,与此同时,人们之间的经济交往日益密切,侵犯财产类犯罪也更加猖獗,职务侵占罪作为侵犯财产类犯罪的重要组成部分也呈现逐年递增趋势。但是相对其他侵犯财产类犯罪而言,职务侵占罪的罪名确立时间相对较短,我国刑事立法上一直将其并入贪污罪处罚,直到1995年《关于惩治违反公司法的犯罪的决定》的颁布,职务侵占罪才作为一个独立的罪名从贪污罪中分化出来,开始在《刑法》中占据一席之地。由于罪名确立时问相对较短,加之司法实践中案例的复杂性,职务侵占罪往往在认定时有-定难度。 本文的重点是从犯罪构成的角度分析职务侵占罪,解决如何理解职务侵占罪的主体以及“利用职务上的便利”的问题,结合盗窃罪与本罪的区别最终对李江的行为进行定性：李江利用职务上的便利非法占有公司财物的行为构成职务侵占罪而不是盗窃罪。 本文分为三个部分,第一部分,介绍李江职务侵占案的案情、一二审判决以及案件审理过程中的争议焦点,明确本文讨论重点是李江的行为构成盗窃罪还是职务侵占罪。第二部分,笔者针对案件争议焦点进行法理分析。首先,从犯罪构成角度分析职务侵占罪及职务侵占罪在司法实践中的界定问题；其次,分析盗窃罪的犯罪构成；再次,明确职务侵占罪与盗窃罪的区别及在实践中如何界定问题。第三部分,在本文第二部分的法理分析的基础上,联系李江的具体行为,另从量刑角度分析,终而认定其行为的性质,即李江的行为构成职务侵占罪而不是盗窃罪。
[Abstract]:With the deepening of reform and opening up, China's economy is developing rapidly. At the same time, the economic exchanges between people are becoming closer and closer, and the crime of infringing property is becoming more rampant. As an important part of the crime of infringing property, the crime of duty embezzlement also shows an increasing trend year by year. However, compared with other crimes of infringing property, the crime of duty embezzlement has been established for a relatively short time. In our criminal legislation, it has been incorporated into the crime of corruption punishment until the promulgation of the decision on punishing crimes against the Company Law in 1995. As an independent crime, the crime of duty embezzlement is divided from the crime of embezzlement and begins to occupy a place in the Criminal Law. Because of the relatively short questions when the charges were established, and the complexity of the cases in the judicial practice, the crime of duty embezzlement is often found to be difficult to determine. The focus of this paper is to analyze the crime of duty embezzlement from the angle of the constitution of crime, to solve the problem of how to understand the subject of the crime of duty embezzlement and to "make use of the convenience of duty". Combined with the difference between theft and this crime, Li Jiang's behavior is characterized: the crime of duty embezzlement, not theft, is constituted by the act of taking advantage of his position to illegally occupy the company's property. This paper is divided into three parts. The first part introduces the case of Li Jiang's duty embezzlement case, the judgment of first and second instance and the focus of the dispute in the trial process. It is clear that the focus of this discussion is the crime of theft or the crime of duty usurpation. The second part, the author carries on the legal theory analysis to the case dispute focal point. Firstly, it analyzes the definition of duty embezzlement crime and duty embezzlement crime in judicial practice from the angle of crime constitution, secondly, analyzes the criminal constitution of theft crime. Thirdly, it clarifies the difference between duty embezzlement and theft and how to define the problem in practice. The third part, on the basis of the legal theory analysis of the second part of this article, connecting with Li Jiang's concrete behavior, and analyzing from the angle of sentencing, finally determines the nature of his behavior, that is, Li Jiang's behavior constitutes the crime of duty embezzlement rather than the crime of larceny.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.3
本文编号：2411326
[Abstract]:With the deepening of reform and opening up, China's economy is developing rapidly. At the same time, the economic exchanges between people are becoming closer and closer, and the crime of infringing property is becoming more rampant. As an important part of the crime of infringing property, the crime of duty embezzlement also shows an increasing trend year by year. However, compared with other crimes of infringing property, the crime of duty embezzlement has been established for a relatively short time. In our criminal legislation, it has been incorporated into the crime of corruption punishment until the promulgation of the decision on punishing crimes against the Company Law in 1995. As an independent crime, the crime of duty embezzlement is divided from the crime of embezzlement and begins to occupy a place in the Criminal Law. Because of the relatively short questions when the charges were established, and the complexity of the cases in the judicial practice, the crime of duty embezzlement is often found to be difficult to determine. The focus of this paper is to analyze the crime of duty embezzlement from the angle of the constitution of crime, to solve the problem of how to understand the subject of the crime of duty embezzlement and to "make use of the convenience of duty". Combined with the difference between theft and this crime, Li Jiang's behavior is characterized: the crime of duty embezzlement, not theft, is constituted by the act of taking advantage of his position to illegally occupy the company's property. This paper is divided into three parts. The first part introduces the case of Li Jiang's duty embezzlement case, the judgment of first and second instance and the focus of the dispute in the trial process. It is clear that the focus of this discussion is the crime of theft or the crime of duty usurpation. The second part, the author carries on the legal theory analysis to the case dispute focal point. Firstly, it analyzes the definition of duty embezzlement crime and duty embezzlement crime in judicial practice from the angle of crime constitution, secondly, analyzes the criminal constitution of theft crime. Thirdly, it clarifies the difference between duty embezzlement and theft and how to define the problem in practice. The third part, on the basis of the legal theory analysis of the second part of this article, connecting with Li Jiang's concrete behavior, and analyzing from the angle of sentencing, finally determines the nature of his behavior, that is, Li Jiang's behavior constitutes the crime of duty embezzlement rather than the crime of larceny.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.3
【引证文献】
相关硕士学位论文 前3条
1 刘娜;职务侵占罪与贪污罪界限研究[D];沈阳师范大学;2013年
2 张巍;职务侵占罪与盗窃罪界限研究[D];黑龙江大学;2012年
3 王秀丽;职务侵占罪司法疑难问题研究[D];黑龙江大学;2012年
，本文编号：2411326
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