On The Determination Of The Object Of The Embezzlement Crime

The object of the embezzlement crime is property, and the object of the misappropriating behavior is others' property. The specific regulations have three kinds: the first is the custodial others' property; the second is others' forgotten articles; the third is others' hidden property. This paper tries to analyze and expatiate on the determination of the object of the embezzlement crime, which could be divided into nine parts.I. The Summary of the Object of the Embezzlement Crimei. The object of the embezzlement crime refers to the misappropriating behavior whose object is others' property held by the actor. The so-called others' property is opposite to the actor's, which means the property of the nation, the unit and the natural person except the actor, who has the ownership right or the possession right of it.ii. The characteristics of the objective for the embezzlement crime, compared with other property crime, it has the characters of universality and the restriction.iii. The classifications of the objective for the embezzlement crime, taking the natural quality of the property as the criterion, it could divide the property into the chattel and the real estate, the tangible property and intangible property, the individually defined object and non-individually defined object etc; Taking the legal quality of the property as the criterion, it could divide the property into the public property and private property, the legal property and booty, the entrusting object and the picking-up objects etc.II. The Determination of the non-individually defined object or the kind producti. It introduces five theories on whether the non-individually defined object or the kind product could become the object of object of the embezzlement crime. They are the theory of ownership transfer, the theory of disposition right transfer, the theory of permission consumption, the theory of beyond authority, and the theory of violation of the delegated intention.ii. It brings forward the criteria of judging whether the non-individually defined object or the kind product could become the object of object of the embezzlement crime: the objective criterion is whether the actor has the custody relationship for others' kind product, or whether there is the special stipulation of the custody relationship. Only in the contract of entrusting and custody of kind product, the kind product could be the misappropriating object. In the consumption loan contract, the kind product could not be the object of object of the embezzlement crime. The subjective criterion is the intention of the illegal possession held by the actor. That means that whether the actor has the intention of the illegal possession, if both parties do not have the special stipulation of the risk of the kind product in the contract of entrusting and custody.III. The Determination of Others' Property of the Illegal PossessionOthers' property of the illegal possession is the booty from the crime for others, the prohibited article, and the illegal possession earned by the illegal activities.i. There are three theories in the theory of Criminal Law: the positive theory, the negative theory and the theory of eclecticism. The academic circle of the Criminal Law in our country has the opposite points of view on these: in the first viewpoint, the property of commission payment based on the illegal reason could not be the object of embezzlement; in the other viewpoint, whatever the booty or the property for crime all could be the object of embezzlement.ii. The possessed others' property based on the illegal cause could not be the object of embezzlement crime, because the owner of their property has already transferred to the country, and the embezzlement crime prescribed by the Criminal Law in our country belongs to the crime handled only with complaint.iii. It describes the determination of the prohibited articles. Whether the prohibited articles could become the objects of embezzlement crime depends on whether they belong to the articles in the property crime, and whether they have the property characteristic. Since the prohibited articles do not have the characteristic of the property in the property crime, they could not be the objects of embezzlement. IV. The Determination of the intangible Propertyi. It brings forward the concept of the intangible property. It refers to the entity existing matter which the vision could not sense, such as the electricity, the gas, the liquefied gas, the natural gas, the hydraulic power, the pressure, the artificial cold air, the artificial hot air, the electric wave, the magnetic force, the atomic energy etc.ii. Generally, for the owner, the intangible things, the tangible energy resources could not be entrusted others for simple custody; for the users, the receiving of the tangible energy resources means the ownership of the matter. Without reference to use and consumption, they have no custody relation for the tangible energy resources. From this significance, the tangible matter could not be the object of embezzlement.iii. In some circumstances, the electric could be the object of embezzlement crime. 1. When the electricity and the natural gas etc are made into the finished product, they have the possibility for custody. In this circumstance, the electric could be the object of embezzlement crime. 2. Because of the wrong payment of owner, the buyer has the obligation of custody and giving back for the part which is given more. If he could not return it and refuse to pay, it constitutes the embezzlement crime.V. The Determination of the Intellectual PropertyThe intellectual products are the spirit product or the intellectual production, which has the value and the exchange value, and is created by the people's mental creation and brings the economic value to the creator.VI. The Determination of Property InterestProperty interest is the interest which has the property value out of the property. The property interest is based on creditor's right, and debts which could have the possibility of custody, so it is not the object of embezzlement crime.VII. The Determination of Detachment Possessed Articlesi. It is the determination of the forgotten articles. The collection of the forgotten articles, whatever non-cause management or unjustified enrichment, the pick-up person has the custody obligation of the pick-up matters. As the property, the forgotten articles also belong to others. Therefore, the behavior of taking the forgotten thing as his own and refusing to return, accord with the composing matter.ii. As the forgotten articles, the detachment possessed article such as the drift, the sunken article, the run-away animal etc, all refers to the detachment of possession not based on the holder. The possession which does not belong to anybody could also be the object of embezzlement crime.viii. The Determination of a Sealed Entrusted ThingThe constituent makes others in charge of the custody of the case, puts the valuable things inside, and then locks it, and gives the case and the things inside to depositary for custody. He does not authorize the depositary to use the things inside. In this case, the depositary prizes the lock and takes the thing insides as himself, and refuses to return. Since the depositary masters the things inside the packages in fact, and has the obligation of the custody. Therefore, it conforms to the characteristics of the embezzlement crime. The sealed entrusted thing could also be the object of embezzlement crime.IX. The Determination of Other Special Propertyi. The deposit in the deposit receipt of the bank: Whether the deposit in the deposit receipt of the bank could be the object of embezzlement depends on that the receipt holder has the deposit and the classification of the deposit in fact. If the deposit receipt held by the depositary or the pick-up person could be changed into cash, it could be the object of embezzlement. But the receipt such as premature fixed receipt or encrypted current receipt could not be the object of embezzlement.ii. The securities, the non-signature securities could be the object of embezzlement. The securities with the signature could be used after the affirmation of the identification. So they could not be the object of embezzlement.iii. The trade card, the capital card and the share capital held by code of the stocks. Once the depositary accepts the custody of the above rights credence and code, it does not means the depositary could draw the share capital at will; in the condition that there is no notarization commission between the investor and the depositary, the depositary could only draw the share capital by the fake mean. Therefore, the right credence and the share capital held by the code generally could not be the object of embezzlement.