Research On The Theft Between Relatives From Criminal Law

Theft between relatives occurring in family members or close relatives is a special case in theft crime. In the provisions of theft in China's Criminal Law, there is no distinction between ordinary theft and theft between relatives, but some provisions in principle made in the judicial interpretation. These special provisions are compatible with the realities of our society, and also consistent with the way theft between relatives dealt with in other countries. Relative to no provisions in Criminal Law, the provisions in judicial interpretation to some extent are rational. However, these provisions in principle don't set the specific standards on how to deal with theft between relatives, and therefore it gives rise to controversy in theoretical circles over the scope of relatives, the scope of relatives'property, the identification of the real necessity to investigate the criminal responsibility, etc. And it also leads to different understanding on the application of judicial interpretation among different judiciary and different judicial officers. For theft between relatives, some judiciaries investigate the perpetrator's criminal responsibility as a criminal case; others deal it with as a civil case; some order punishment based on Public Security Management Punishment Law of the People's Republic of China; and even some don't deal it with at all for regarding it as a matter within the family which should be handled within the family. For reasons above, this paper, by analyzing a typical case on theft between relatives and comparing the provisions of theft between relatives in China's Criminal Law and those of foreign Criminal Law, defines the scope of relatives and the scope of relatives'property, and puts forward perfecting some provisions of theft between relatives. The full text contains more than 26,000 Chinese characters, which reads as follows:Part I: The typical case on theft between relatives. Disputes over the case focus on the following aspects: whether the case is about theft between relatives; whether the case is dealt with as a crime; whether the case is dealt with only when it is sued; how to identify stolen property in the case.Part II: The definition and features of theft between relatives. Theft between relatives refers to the theft between husband and wife, parents and children, brothers and sisters, as well as other family members. The main features of theft between relatives are restrictions on subject of the crime, on stolen property, on the circumstances of the crime, and on penalty.Part III: Provisions on theft between relatives in domestic and foreign Criminal Law. Based on the analysis of the provisions on theft between relatives in Criminal Law in typical common law countries and civil law countries, the author makes a comparison of China's Criminal Law and the relevant provisions of judicial interpretation, from which we can find the provisions on theft between relatives in China different from those in foreign Criminal Law in terms of the scope of relatives and penalty principle, etc. This part focuses on the limitations of relevant judicial interpretation: the lack of clarity about crime and non-crime which makes it difficult to apply penalty; non-uniform of the identification of relatives which result in differences between the judicial authorities in practice; the small number of identified members as relatives in theft between relatives and also without showing the degrees of kinship; over principled provisions on"really necessary to investigate the criminal responsibility"which easily lead to abuse of judicial discretion; no right to accuse of theft between relatives for the victim which however, is exercised by the judiciary.Part IV: The identification of the scope of"relatives"in theft between relatives. By exploring the scope of"relatives"the author holds that"relatives"should include family members, close relatives and other relatives living together. Part V: The definition of the scope of the stolen property in theft between relatives. This part makes clear the property boundaries between the perpetrator's personal property and that of family members or close relatives, between family members or close relatives and others. In the author's opinion, to determine whether it is theft between relatives depends on the relationship between the perpetrator and the property owner.Part VI: Consideration on improving theft between relatives from law. This part focuses on three aspects to improve theft between relatives: First, to propose treatment only when it is sued; Second, to define the meaning of "different penalty from the crime committed in the community; Third, to list in detail the circumstances of "really necessary to investigate the criminal responsibility".Part VII: Conclusion.