Study On The "Custody" Of The Criminal Offense Of Embezzlement

Article 270 of China's Criminal Law prescribes that whoever unlawfully takes possession of the object which another person has forgotten about or buried and another person's money or property which is under his custody and refuses to hand it over or refuses to return it, if the amount is relatively large, he has offended the Criminal offense of embezzlement. From the legislative requirements of view, the objects of the Criminal offense of embezzlement include two kinds, one is "another person's money or property under his custody", another is "the object which another person has forgotten about or buried". There are a lot of disputes on the embezzlement. One important reason is that people have different views about "another person's money or property under his custody". This paper studies three problems on "custody" of the criminal offense of embezzlement:First, this article has studied the meaning and characters of "custody". The author holds the view that theorists have different views about the meaning of "custody". The views can be divided into two kinds: narrow sense which has distinct limitations and generalized sense which is comparatively reasonable and should be accepted. The author holds the view that the character of "custody" is "legal possession". We should pay attention to some qualified factors. The first factor is the qualification of conduct itself, the second factor is the qualification of the owner of the original possession, the third factor is the qualification of the subjective factor of the perpetrator.Second, this article has studied the foundation of "custody". The author holds the view that the foundation of "custody" includes three kinds: the first kind is contractual relationship, the second kind is legitimate behavior which is not based on contractual relationship, the third is illegal behavior.Thirdly ,this article has studied the object of "custody". The author holds the view that the object of "custody" includes the real property, public property, illegal property, non-special thing, contraband and so on. Intangible things (such as electric power, coal gas, gas and so on) which can be managed or controlled by people can be the object of "custody". But artistic products and intellectual achievements can not be the object of "custody".