The Research On The Theft Of Use

The traditional theory of the Chinese criminal law believed that the theft of use has the illegal possession for the purpose, and must have the return intention or act after using the belongings by secret way. This theory is almost not unfit for dealing with stealing the automobile, the farm cattle, or secret connection with the telephone line. However, under the growing trend of cyber crime, using the doctrine of illegal possession for the purpose can hardly solve the theft of use problems on network.In recent years, although the interpretation on the theft of use is gradually increasing at home, the theft of use has not yet become to be convicted and the results of these studies failed to guide practice. It is not properly resolved what is the nature about stealing motor vehicles act. Further, stealing the network resources, such as IP address, is not able to get frequent punishment. Although some cyber crime is already written in Amendment VII to the Criminal Law of the Peoples' Republic of China, the existing networks theft problem has not yet solved. It is seriously urgent that we should put the theft of use into the criminal law.The first chapter of the paper is the summary of the theft of use. First, the author introduces the Japanese and Taiwanese scholars'research on the theft of use, analyzes their advantages and disadvantages, and obtains using the new definition of the theft of use. The conclusion of the theft of use is that the actors use the belongings for temporarily purpose, and the belongings get not qualitative change or reducing the property's value. And then, the theft of use can not influence the owner using the belongings. Second, the paper introduces the theft of use features from four perspectives which are violation of another object (including corporate, entity) on the right to use property as well as the systems in accordance with the established order of social property, unauthorized secretly or publicly ownership of property while resulting in a greater or more harmful consequences in objective aspects, a natural person or entity criminal responsibility in the subject, and the direct or uncertainty intention on another person's property with no permission having the purposes on pursuit of the right to use the stolen property.The second chapter of the paper is the mode of processing and problems about the theft of use. In the first part of this chapter, the author arranges the relevant regulations on the theft of use, and then analysis what is the problem with the theft of use. In accordance with our interpretation of related real-life or against the provisions of the network in Penal Code and Judicial interpretation, the author provisions of the Penal Code to organize and carry out assessment. The author arranges the law of the theft of use types in order, and points out that the theft trial of three used to explain the provisions of theft is not proper provision. The author especially analyzes "Amendment VII to the Criminal Law of the Peoples' Republic of China "with the Criminal Law, and then points out its flaw. The author considers that it was seriously that illegal control of computer information system was regulated in the Chapter VI of Criminal Law. In the second part of this chapter, the author analysis the problem in judicial process through introducing the case of the theft of use in our country.The third chapter of the paper is anglicizing the rationality and feasibility of the theft of use. First, the author analyzes the need for the use act additional from several aspects, such as the task and purpose of the Criminal Law, crime of statutory requirements of the principle, the special function of the penalty to make up for gaps in the criminal legislation, and judicial practice needs. Second, the author demonstrates rationality of the theft of use by comparing the theft of use to the theft. Compared the theft of use with the theft act, the author analyzes the similarities and differences of the two acts, and then draws a conclusion that the theft of use is different from the theft act and the theft of use is a new type crime. Third, the author points out the feasibility of the theft of use in aspect of the theory and practice. Then the author takes classification on the theft of use into two categories by being punishment, which are the punishable use theft act and the no punishable use theft act. By introducing objective and subjective about the theoretical foundations of the use theft, it comes to determine whether the use of theft penalty should be unity as the standard objective and subjective.The fourth chapter of the paper is the enlightening on use theft act through the comparison with legislation and case on the theft of use. First, the author takes measure that whether the use act theft is independent crime or not in other countries, including recognition pattern and deny pattern. Then, the author divides on the recognition of patterns by using the theft of objects, and describes the use of the three legislative models which are only theft of motor vehicle model (such as Germany, Spain), widely theft model (such as Finland), and object uncertain model (such as Italy). Second, it denies that the theft of use is equivalent to the theft act. Combined with the previous legislation in other countries and our national conditions, the author sets accusation of the use theft which is the"crime of embezzlement". Third, reference to China's Criminal Code provisions relating to the theft crime, the theft of use is to be set. The author recommends the punishment to configure the use of stolen of ordinary theft in general should be reduced. The author sets the use of the statutory aggravating circumstance theft, such as theft of financial institutions, medical institutions'premises equipment, and the theft of use causing serious injury or death situation. Reference Theft Crime Explanation, the proposal is more specific, such as no punishment of stealing things from close relatives. Reference to the relevant provisions of the Penal Code of Macao, the proposal is add the Private Prosecution to the theft of use which is"the use of minor theft and told the only treatment". Finally, the author orders and assesses on the theft of use case at home and overseas. Through phenomena that the person who stolen"farm vegetables" at working time was fired, it is the already existing case of the use theft is not punished. By analyzing the theft of use of foreign case, the author recognizes the computer time and storage capacity can be recognized as legal and valuable things. The author proposes the use of computer time and storage capacities are included in the adjustment range of the Criminal Law.That the illegal possession for the purpose is unnecessarily included in the theft of use and the theft of use is not the same as the theft act are the conclusions of the paper. It is powerless in civil and administrative law unless the theft of use is put into the Criminal Law. The author recommends that it can be transplanted advanced legal system of other countries, if it is necessary. The author wishes that the legislator should strictly think of the theft of use in the next amendment.