On The Theft Of Use

Theft is a common crime which happens frequently. Considering the amount of cases both the public security organs have registered and the court have dealt with, the cases of theft have always been at the first rank. As the reform of economic system, the rapid economic development, the increase of overall social wealth as well as the improvement of living standard, theft which aims at pursuing extravagant pleasure and convenience increases day by day. As the development of Chinese automobile industry and transportation, cases of stealing cars and motorcycles with the intent to exercise, pleasure or convenience increased substantially. In addition, we have entered the ear of internet, in this context, the network bandwidth, network storage space, network application services and other network resources have already had real economic value, which has become a major target of criminals. In cyberspace, there are a large number of people using computer technology to illegally use other people's network bandwidth, network storage space, the computing power or other people's IP address, but it does not infringe other people's ownership as well as lead to no tangible losses. Therefore, such cases are complicated and difficult to deal with in judicial practices. For the reason that in such cases the accused only had the intention of the temporary illegal use, which is different from the intention of"illegal occupation", which is required by theft. There is disagreement both in theory and in practice on whether such cases can be identified as crimes and be dealt with as theft. This issue will be discussed in this paper as"use theft".This paper begins with the theoretical and practical difficulties that use theft have caused and will be divided into four parts by a detailed exposition:First of all, the author analyses the meaning of use theft. Scholars have different opinions on the concept of use theft. Some scholars believe that there must be"an intent to return"in use theft; others believe that use theft can be identified as long as the subject discards or destructs property arbitrarily or leading to large amount of loss after use. The author believes that use theft is an act with the intent to use the property temporarily and return it as soon as possible after use, which does not require the intention of permanent occupation. There are variety styles of use theft. The theft of motor vehicles is the most typical one. However, the object of use theft is not confined to this. Theft of cattle is also a typical case in Chinese judicial practice. In addition, as the rapid development of information technology, the theft of network bandwidth, network storage space, network application services and other network resources is increasingly serious and need to be resolved as soon as possible.Secondly, this paper analyzes whether use theft should be punished or not from two contradicted aspects, namely"impunity"and"penalty". So far, impunity of use theft has been an accepted opinion, but there are flaws in this opinion. At present, the object of use theft is the property which is valuable and strongly needs to be protected, such as cars, machines, and so on. As the social development, the right to use property departs from the right of ownership increasingly, and the right of use has played a more and more important role. Therefore use theft should be regulated by criminal law. In addition, the property which is used to protect public safety should be protected in particular. So it is not proper to hold that use theft should not be punished. The author holds that, at least some types of use theft should be punished. There is separate charge to regulate use theft in Germany, Finland, Sweden, etc. At present, although there is no special regulation to regulate use theft in Japanese Criminal Code, Japan has added prescriptions to regulate use theft in its revising draft to supplement the flaws of its legislation.Third, the author focuses on the situations of the study of use theft and the punishment of it in other countries'criminal theoretical field. The situation in China and Japan is similar; both of them do not have separate charge of use theft in their legislations. Besides, Japanese interpretation system is developed, which can be learned by our country's academic research and trial practice. Therefore, the author makes a more detailed introduction on the argument of use theft in Japanese criminal theoretical field. Some scholars think that the intent of illegal occupation is not required by theft, so use theft is one type of theft in principle. Some scholars think that the intent of illegal occupation is an indispensable requirement of theft. People who committed use theft do not have this intent, so use theft does not belong to theft. As far as the issue whether use theft has the intent of illegal occupation is concerned, different scholar has different understanding. So they reach different conclusions. Many countries have prescribed specific crimes for use theft in their criminal law. There are several modes: first, special regulation for particular protection, namely the Criminal Code only prescribes some crimes for protecting special property (such as cars, airplanes and other transportations); second, the combination of normal and special protection, namely the Criminal Code prescribes crimes not only for special property but also for normal property. A great number of countries take this mode of legislation. In addition, few countries only have normal prescriptions on use theft.Forth, after analyzing the punishment of use theft in other countries'criminal theory and legislative practice, the author discusses use theft in China. At present, research on use theft in China is superficial, and there is not deeply theoretical analysis about it. There has not been any prescription on use theft in our countries'criminal law. Although the conduct of stealing cars without the intent of permanent occupation is prescribed in judicial interpretation, this prescription has some problems, which has not been satisfied to resolve newly happened cases.Finally, the author raises his own opinion on how to get out of this theoretical and practical dilemma. Dependence on interpretation to resolve this issue is not feasible; we ought to depend on revise legislation. When design the crime of use theft in Criminal Law, we should notice the following issues: first, use theft is a kind of minor crime because it does not violate ownership; second, use theft is on the basis of result, only when it leads to severe results which harmed the society, can it be punished; third, the punishment of use theft ought to show the equilibrant between crime and liability. The liability of use theft should be focused on penalty and supplemented by freedom sentence. The design of freedom sentence should show the minor crime characteristics of use theft.