Re-study Of Several Difficult Issues About Larceny

In all ages, both in China and abroad, crime of theft is one with high rate of occurrence in criminal cases with negative impact on social stability, therefore, is the focus and current issue both in academic research and judicial practices. Taking "Xu Ting Case"as an example, the thesis discusses "secret theft" of theft crime and makes comparison between embezzlement and fraud by adopting literature review, comparative analysis and case study. This thesis is composed of three parts.Partâ… aims at analyzing "Xu Ting Case" itself and six related issues including crime or not non-crime, that case of theft, embezzlement, fraud or other crimes, secret theft, whether the ATM is a financial institution, the fairness principle of the law, and judicial independence. Comments from media and scholars about "Xu Ting Case" are brought into discussion and analysis. This part has laid foundation for further analysis in Part II and III.Partâ…¡mainly focuses on the elaboration of secret theft. Firstly, to compare the legal rules about secret theft in different countries and regions including mainland China, Hong Kong, Macao and Taiwan. Secondly, to discuss the theoretic disagreement on secret theft in China and abroad. Thirdly, to analyze how criminal law scholars in our country define the concept of secret theft, to discuss and explore the specific real-life cases, and point out that secret theft is an objective element to constitute the crime of theft in our country as well as the three basic features of it: the subjectivity, relativity and timeliness. Finally, to claim that the stipulation of the law about the "secret theft"crime contradicts with the principle of the "statutory crimes" and is therefore not conducive to constrain the discretionary power of judges and the law applicable to such areas is lack of consistence, and suggests that this should be improved through legislation or judicial interpretations.Partâ…¢mainly discusses and explores the boundaries among theft, embezzlement and fraud. This section is divided into two sections. The first section takes the person who controls the property of the object of crime as the main standard to distinct theft and embezzlement, combining with property in a specific place and other specific situations, to analyze the property situation under controlling, and takes some factors such as the object of crime, the time of the formation of criminal intention, objective behavior as the assistance to make the judgment comprehensively, and clarifies the boundaries of theft and embezzlement. In addition, it carries on the analysis to "Xu Ting Case". The second section points out that the objective characteristics of theft and fraud is the main standard to distinct the boundary between theft and fraud, and distinct the boundaries between theft and fraud appropriately through the specific analysis of confusion between theft and fraud in practice, and to further discuss "Xu Ting Case".