Theory Of Theft And Embezzlement Boundaries

The behavior of invading the wealth cannot be the crime of theft or the crime of embezzlement simultaneously, and there is definite limit between the two crimes. Firstly, as for objects, there is distinction between the two crimes. The crime of theft’s objects, public or private property, contain bodiless substance and property benefits, and the article265of The Criminal Law is the provision of attention of interests theft. It says the real estate itself cannot be moved, so it could not be stolen and isn’t the object of the crime of theft. The crime of embezzlement includes property in commendation and properties out of control. The range of property in commendation contains bodiless substance and real estate. Indefinite things are of high replaceability, but it is possible to establish the crime of embezzlement to illegally receive indefinite things taken care of. Property benefits itself could not be held in trust, and it is not the object of the crime of embezzlement."Property custody" is a kind of factual relationship which is nothing about whether according with law. Unlawful consignment has no effect on the establishment of property custody. Property forgotten or buried in Item2article270prescribes its normative significance, properties out of control. The objects range of the crime of theft and the crime of embezzlement is different. The real estate cannot be stolen, but can be invaded and occupied. Property benefits can be stolen, but cannot be invaded and occupied.Secondly, as for the behavior division of the two crimes, secret stealing is not the essential feature of the crime of theft, and stealing should not be of penal violence but the destruction of original possession through peaceful means. While the essential feature of the invading behavior is the change from holding to possession, and illegal occupied by oneself is the description of the invading behavior. Refusing to return, or refusing to hand over, is the further clarification of illegal occupied by oneself. And it has no independent constitutive requirements position. The key to distinguish the two crimes lies how to judge the possession ownership. Possession in the Criminal Law just refers to factual possession, conceptual possession excluded. The problem of judging the possession ownership can be categorized into five types:(a)The judge of possession relationship in parallel relationship:the possession in it is independent, and "commonly possessed" which destroys the parallel is theft.(b)in the owner-member relationship,(c)possessions out of control,(d)the possession relationship of sealed entrusted thing,(e) the possession relationship of the decedent’s holdings.Thirdly, the cognition error about the property forgotten is the cognition of target, not the cognition of object. It’s a kind of abstract and factual cognition error which strides across crimes. The factual cognition error at the basis of legal according doctrine is reasonable. Meanwhile, we should realize that the forgotten in "Property forgotten" is the facial constitutive requirement. Thus, according to the legal according doctrine, the crime of theft and the crime of embezzlement within the limits of infringement of others’possessions coincide, which constitutes the accomplished offense of the crime of embezzlement.