What is the object of embezzlement?

Since the crime of embezzlement was added to the new criminal law, people have been controversial about the object of the crime of embezzlement, especially forgetting things and the lost property. Lost property refers to movable property that is not controlled by the owner before the goods are picked up by the picker. Forgetting things means that the owner loses possession and becomes the active property occupied by others. The object nature of the crime of embezzlement in criminal law is the same as that of forgetting things, and it is reasonable that both of them become the objects of the crime of embezzlement.

Keywords: forgetting things's crime of embezzlement

Article 270 of China's Criminal Law stipulates that the crime of embezzlement is: "Whoever illegally occupies the property kept by others in a large amount and refuses to return it shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than five years and shall also be fined. Whoever illegally occupies another person's forgetting things or refuses to hand over a large number of buried objects shall be punished in accordance with the provisions of the preceding paragraph. Only when you say it. " This provision of criminal law has caused a long-term debate among scholars, especially about forgetting things. Why is the lost property not the object of embezzlement?

There are two views on whether the lost property is different from forgetting things. First, there is a difference between lost property and forgetting things, that's for sure. The second is that there is no essential difference between lost property and forgetting things, and it should not be distinguished by legislation, which is negative.

To be sure, forgetting things means that the owner or holder of property consciously puts his property somewhere and forgets to take it away due to negligence. Forgotten things are different from lost property. Lost property is that the owner or holder of the property accidentally loses the property somewhere due to negligence. The main difference between the two is that the former generally knows where the property has been recalled, so it is generally easier to find, while the latter generally does not know where it was lost, so it is not easy to find.

Negative theory holds that there is no fundamental difference between forgetting things and lost property. Therefore, Professor Chen Xingliang made an accurate exposition: it is unscientific and unreasonable to take the time and place of property and the memory ability of the lost person as the standard to distinguish the lost property from forgetting things. Convicting the defendant depends on the memory of the victim. If the victim can remember the time and place where he left, that is, forgetting things, the defendant is guilty, otherwise the defendant is guilty, and forgetting things is inseparable from the lost property. The author believes that the legislation does not designate the lost property as the object of the crime of embezzlement, which is not conducive to protecting the victim and unfair treatment to the possessor. The essence of the crime of embezzlement is the act of refusing to return the huge amount of property legally occupied by others. In the crime of embezzlement, the lost property has the same nature as forgetting things, that is, it is separated from the property occupied by others. Property belonging to others with a large amount or a particularly large amount should be the object of embezzlement.

Some scholars think that forgetting things and the lost property should be considered, which will reduce the difficulty of identifying a crime and has practical significance. The author thinks it is inappropriate under the current legislative situation, because the original intention of legislators is to distinguish them. In the current judicial practice, it is indeed difficult to identify the lost property and forgetting things, but the unreasonable distinction between them is a common saying in Chinese academic circles. As long as the criteria are well judged, they can be distinguished. As for forgetting and losing things, that is the task of legislators.

After reading the above two views, the author thinks that their disputes are not at the same level. If the affirmative view is accurate in judicial practice, that is, according to the current laws of our country, in order to implement the principle of a legally prescribed punishment for a specified crime, it

The author thinks that forgetting things and the lost property are not inseparable. The distinguishing standard between forgetting things and the lost property is whether the owner has the ability to remember things and whether he can recall the location of things. This standard is too limited to the literal meaning of forgetting things and lost property. It is difficult to distinguish in practice, and it is unscientific to distinguish the attributes of things according to the subjective meaning of the owners. Because subjective things can't be seen outside and have no propaganda effect on the outside world. For example, if a person finds an expensive watch on the road, he can't tell whether it is lost or forgetting things, because it depends on the owner's intention. The possessor of forgetting things has no right to demand remuneration from those who come forward to advocate forgetting things, because the possession of the possessor constitutes the "management of the possessor without cause" in civil law. The possessor has the right to claim compensation for the necessary expenses incurred in keeping forgetting things. The person who finds the lost property may ask the owner of the lost property to provide remuneration and necessary expenses for keeping the lost property. In criminal law, the original lost property has the same name as forgetting things-it is separated from the property possessed by others. Especially in the crime of embezzlement, there is no need to carefully distinguish whether the object of embezzlement is forgetting things or lost property. However, the criminal law of our country does not define the lost property as the object of embezzlement, so it is necessary to distinguish it in practice.

The constitutive requirements of lost property are as follows: the possessor loses possession, regardless of the reason; Must be unoccupied, that is, lose possession of the thing, and the thing is not occupied by anyone. If it is occupied by someone, it does not belong to the lost property, and it will take some time for the finder to find it; Must be the owner's movable property, the lost property is not ownerless, but owned by someone but now uninhabited. Non-possession is different from no ownership, and unowned property is the object of preemptive right. It can be seen that the unoccupied lost property has stages, but the change of possession in forgetting things has no such stage; The identity of the finder of lost property is the result of the finder's initiative, while the identity of the controller in forgetting things is the result of the owner's behavior. Whether it is the lost property or forgetting things, the reasons for losing possession are different, only the fact of losing it. For example, things that people left in other people's residences, hotels and taxis lost their possession and were occupied by others at the same time, so these things were forgotten. By definition, sending property by mistake is forgetful. The author thinks that the scope of lost property should include drifting objects, sunken ships and stray livestock. The names of these properties are formal names, that is, they are named according to the reasons why the owner lost the property, and their essential names should be the above-mentioned forgetting things or the lost property respectively. Forgotten things must lose possession and become the possession of another owner at the same time. Here, the possession of other owners should be presumed as possession, because the possessor may sometimes not know that he actually owns it, but here, as long as the property is under his control, it is regarded as possession. In other words, it is necessary to have the property within the actual ownership to infer possession. Public places, such as hotel lobby, restaurant, bus, railway station waiting room, airport toilet, etc. Don't think that these places have established possession or control over the property left by their owners. In this way, the distinction between embezzlement and theft is solved. Because forgetfulness is often the object of theft. The premise of the crime of corruption is the legal possession of property. The so-called legal possession means that the actor does not use criminal means to put other people's property under his control, that is, the possession is legal and innocent. Without such possession, putting property under one's own control should be regarded as theft. If the owner forgets valuables in the taxi and someone puts them in his pocket while the driver is not paying attention, then theft is established. Because there is no premise of legal possession at this time, the goods have been occupied by others in advance.

At present, there are defects in the legislation of forgotten lost property in China. Due to the negligence of legislators, the legislative defects of the crime of embezzlement are caused. Scholars try to give many legislative suggestions. For example, some scholars believe that the system of embezzlement crime in China should be divided into embezzlement crime, commercial embezzlement crime and embezzlement crime. The author agrees with the above suggestions. Here, the author expounds the crime of infringing on property separated from others as follows: illegal possession of other people's forgetting things, lost property, buried objects or other property separated from others, with a large amount, and refusal to hand it over, shall be sentenced to fixed-term imprisonment of not more than one year, criminal detention or fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than one year but not more than three years and shall also be fined. I hope that the above discussion of the author can be beneficial to justice and practice.