On The Object Of Misappropriation Crime

Misappropriation crime,as an ancient crime that criminal acts against property, appears firstly in Roman Law.At present,it has been stipulated in the Criminal law of most countries in the world.Along with the rapid development of Chinese economy and the complexity of property relations,the property of the private citizens increased continuously.Acts of misappropriation of public and private property is gradually increasing,with a certain degree of social harm.In order to protect private property effectively and to maintain social and economic order,in 1997,the Criminal Law created misappropriation crime.According to the provisions of the Criminal Law on Article 270,the object of misappropriation crime is fiduciary property of other people, forgotten property,buried property.Understanding the object of misappropriation crime correctly is very important to find misappropriation.In order to further clarify various problems of misappropriation crime in existing theories,this article discusses the object of misappropriation crime specially and detailedly at the theoretical basis of research scholars,so that we can deepen our understanding of relational problems of misappropriation crime and to provide legislative reference of misappropriation crime.This article is divided into three parts:The first part discusses fiduciary property of other people.From the point of view of property type,the writer discusses whether the estate,immaterial property, intellectual products,prohibited property,property interests can become the object of misappropriation crime or not.From the point of view of property ownership,to discuss whether the public property,category property,illegal property can become the object of misappropriation crime or not.The estate,public property,immaterial property can be the object of misappropriation crime.Trademarks,patents,and other property interests should not become the object of misappropriation crime.Trade secrets tend to be stored in such as the carrier which is the only,may become the object of misappropriation crime.In addition,category property can become the object of misappropriation crime is also discussed.Category property can't be consumed is the object of misappropriation crime,but category property can be consumed is not the object of misappropriation crime because of the borrowers of ownership.Therefore,usually it's not the object of misappropriation crime.Due to illegal goods,this paper defines the nature of the fiduciary property of other people. To take custody is limited to legal custody.Reasons based on the illegal payment of commission structures,prohibited goods,which do not have to take custody of the nature of the legitimate will exclude them from outside the object of misappropriation crime.Whether booty can be the object or not should be analyzed in the specific situation.Firstly,the perpetrator always don't know the booty that come from the crime,but to custody of it.The perpetrator refused return should not set up crime booty.Secondly,the perpetrator always know the booty that come from the crime,but to custody of it.The perpetrator refused return should set up booty crime.Thirdly,the perpetrator did not know in advance is booty,receiving commission from the property after delivery are known to be crime booty.The writer holds an idea that the connotation of "fiduciary" should be understood broadly as the holding and management to the property of other people on a commission and trust relationship established as per commission contract relationship or real management and customs. The forming reason and basis of "fiduciary" include commission conduct,borrowing conduct,renting conduct,guarantee conduct,management without reason,and ill-gotten gains,and so on.The second part is related to the questions of forgotten property.Whether there is difference between the "forgotten property" and the "lost property" or not,this problem arouses heated discussion.And there are many different theories in this question.The "forgotten property" does not equal to the "lost property".The lost property is not the object of misappropriation crime,and the differences between "forgotten property" and "lost property" do not lie in whether the property loser remember the lost place immediately,or return to look for at right time,but lie in the property that is left in the specified place where the effective management and control of manager available,and if the property is under the occupation and control of manager.Although Criminal Law in our country,provides that lost property is not the object of misappropriation crime.I believe that is unreasonable although it is legal. Lost property should be the object of misappropriation crime.Longitudinal view of the world countries,forgotten property is the object in foreign Criminal Law,but there isn't lost property.Moreover,forgotten property and lost property in the invasion and occupation of structures on the behavior and social dangers of the establishment of no substantial effect misappropriation crime.In addition,in judicial practice,how to distinguish between the appropriation of forgotten property and crimes of theft has also been discussed in this section.The third part is the problem about buried property.The concept and scope of the buried property are not the same in Criminal Law and Civil Law.Civil Law solves the problem of their rights,but Criminal Law is to solve the criminal responsibility of buried property.The buried property refers to the property hard to be found by others hidden under the ground,in the water,or inside other things,which not only include private buried property,but also the buried property belonging to the nation or group; the property having or having no owner all belong to the "buried property" in Criminal Law.In general,it is difficult to distinguish among the misappropriation of buried property,the crime of theft and the crime of illegally excavating and robbing ancient cultural sites or ancient tombs.Under normal circumstances,the perpetrator has no intention of refusing to hand over the buried property,large amounts should be identified as buried property occupation.As the object of misappropriation crime, buried property is from the possession of all actors and found occasionally by perpetrator.Buried property is still the owner for the management and control of the scope of dominance,the perpetrator intended to be excavated,and for the purpose of illegal possession,constitutes theft.The perpetrator has no intention of digging, occasionally found in archaeological sites,ancient tombs,and does not constitute an excavation site of ancient culture,ancient tombs,crimes of property if the acts of people will be themselves,refused to surrender,only constitute a misappropriation crime.If a person acts for the purpose of illegal possession of the knowledge that is an ancient cultural sites,ancient tombs be excavated,the excavation constitute the ancient cultural sites,ancient tombs crime,does not constitute misappropriation crime.