Criminal And Civil Issues Staggered Of Encroachment

Criminal and Civil Issues Staggered of EncroachmentThe crime of embezzlement is a kind of crime that actor takes possession of property,misplaced property or hidden property in the custody of him and refuses to return or hand it over for the purpose of holding the possession.In 1979 the criminal law of china does not provide for them,the reason is that legislators believe that the time has been provided in the criminal law of theft,robbery and the crime of corruption against the state staff,and the addition of act occupying public and private property are not harmful to society,they do not have that as a crime. But, with the development of society, new types of occupation acts of the continuous emergence. In such a social background, it is imperative that the crime of embezzlement was included in the criminal law. In view of this, embezzlement was created as the 1997 criminal law article 270 with a view to restrict the serious encroachment on the property of others.Since the embezzlement was provided into the criminal law of china, Chinese scholars have done a lot of discussion and investigation. The reason why there are great difference in understanding the embezzlement is that embezzlement has unique characteristics and its Undistributed which was caused by the historical problem in the legislative progression of china. Comparison of the chinese criminal law, the embezzlement is a special one. The domestic scholars discuss around several problem which include the object's main range of embezzlement, the relationship between the unjust enrichment of civil law and embezzlement, the definition of an act of usurpation and attempted embezzlement etc issues which has been controversial in the judicial practice of china. With in-depth study about the embezzlement, more and more scholars found that it could not meet their need if you just study the problem only in the field of criminal law. Because these issues are more or less related to the staggered and competing between criminal law and civil law. So I will discuss several problem from the perspective of the staggered between civil and criminal law. This article is divided into three partsPart I:second paragraph of Article 270 of the criminal law provided for forgotten property has its own historical reasons, the object of embezzlement should include the lost property. In the criminal law concept, lost property and forgotten property does have differences, we can distinguish between the lost property and forgotten property by studying the concept of forgotten property in the history that it was generated in the criminal law and the concept of lost property in civil law. However, it have little actual value, during the progress of judicial practice.Partâ…¡:Occupation the property of payment for civil illegal reason, we could use of administrative penalty to punish. Occupation the property of payment for criminal illegal reason, if there are cheating behaviors, we should first consider whether the crime was established as a cheat. If there are not cheating behaviors, when the actor occupy the property which was treat as the reward of crime, we could use of administrative penalty to punish, if the behavior do not need to punish according to criminal law. When the actor occupy the property which was treat as the criminal transferred tools, it could be handle as an accomplice. When knowingly story and maliciously occupy the property which was treat as criminal tools, if there are not cheating behavior, it will be handle as an accomplice according to the accomplice theory.Partâ…¢:Malicious occupation of unjust enrichment of the interests may constitute embezzlement. Unjust enrichment of the interests caused by Property of the payment and picking the lost property can be explained in the words "the others property of Custody ", while unjust enrichment of interests which caused by the occupation of lost property, objects buried may be covered by the Article 270, paragraph 2 of Chinese criminal law.