贪污罪中公务、劳务与职务的认定之研究

Study on Finding Public Service,Labour service and Duties in the Crime of Embezzlement

我国现行刑法规定了五种不同类型的贪污罪,其构成要素各不相同。贪污罪的主体包括在国有单位从事公务的国家工作人员和受国有单位委托从事公务的其他人员,单纯从事劳务的人员非本罪的主体;客观上要利用职务之便;侵占的对象根据主体及从事职务的性质的不同可能是国有财产、公共财产或其他性质的财产。若行为主体非从事公务或没利用职务之便非法占有单位财产,不能构成贪污罪,可根据情况构成盗窃罪、诈骗罪、侵占罪、职务侵占罪等犯罪。

There are five kinds of embezzlement in our criminal law,and their component parts are different from each other.The subject of this crime consists of persons who perform public service in state-owned units and persons who are authorized by state-owned units to perform public service in non-state-owned units.A person who just does labour service is not the subject of this crime.One who takes advantage of his office to take the unit＇s property into his own possession is the subject of this crime.If the subject doesn＇t perform public service or doesn＇t take advantage of his office to possess the unit＇s property,he probably forms canceny,fraud and duty aggressiveness.