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我国《刑法》第271条规定了职务侵占罪,其属于侵犯财产型的犯罪,主要的立法目的在于:保护公司与企业的财产不受本单位职员的侵犯。而随着我国的经济的不断发展,承包经营的方式也逐渐增多。对于承包经营中发生的,利用职务的便利侵吞公司财产的行为能够被评价为职务侵占罪,需要《刑法》给处明确的答案。本文以此为背景,通过对职务侵占罪的分析,综合考虑罪刑法定原则与刑法的谦抑性,总结出承包经营者构成职务侵占罪的情况,为司法实务的判断提供理论上的支持。
Article 271 of China’s Criminal Law provides for the crime of occupational embezzlement, which belongs to the crime of violating the property type. The main purpose of the legislation is to protect the assets of the company and the enterprise from being infringed by the employees of the unit. With the continuous development of China’s economy, the way of contracting management also gradually increased. The act of embezzlement of the Company’s property by the convenience of taking advantage of its position in the contracting operation can be assessed as a crime of occupational embezzlement and requires the Criminal Law to give a clear answer. Based on this background, through the analysis of the crime of occupational embezzlement, considering the statutory principle of punishment and punishment and the restraining nature of the criminal law, this article sums up the situation that the undertaking of contractors constitute the crime of occupational embezzlement, and provides theoretical support for judging judicial practice.