Study On Several Problems In Offenses Of Misappropriation

Dated from history of criminal law, offenses of misappropriation originated fromRoman law which was one of property crimes in the feudal age of Europe in BC1000;until19century, offenses of misappropriation was separated from burglary, becomingan independent charge.1In the history of our country’s criminal law, early in theWarring States Period, legislation on invading behavior existed, but it was punishedas burglary.2It is New Criminal Law Qing Dynasty that first regulated offenses ofmisappropriation as an independent clear charge, and after offenses ofmisappropriation was established in criminal law of Government of the RepublicChina.In1979criminal law began to regulate offenses of misappropriation. The mainreason lies in the fact that currently legislators ruled state functionary or personnelentrusted by state organs, enterprise and public institution and mass organization tomake best use of functionary convenience to occupy public property, should besentenced as offence of corruption; the rest group of personnel who invade andoccupy small amount of public property cannot be treated as criminals. After twentyyears development, there is a great progress in national economy, and the social harmis also declined. Compared to relevant punishment of burglary, in the juridicalpractice, since criminal law clearly regulates offenses of misappropriation, ways ofanalogy are often used in order to look into the criminal liability of doers. Based onthe requirement of laws, offenses of misappropriation were ruled in1997in the itemof270in our country’s criminal law. Because of lag in generality and relative legalexplanation of law articles, great dispute existed among theoretical cycle and practicecycle on the concrete practical use of offenses of misappropriation.From the angle of comparative ways, combined with much juridical practice,this article analyzed some puzzling questions on offenses of misappropriation, and put forward some opinions, hoping which can benefit legislation and practice ofoffenses of misappropriation. The article is divided into four parts.First part is the identification for the target of offenses of misappropriation. Bycomparative analysis,“in commendam” in the item270is considered as a commonterm in item270of criminal law, which means mediating possession to occupyproperty of other people. The emphasis is to discuss whether the Commissioned byillegal reasons can be the target of offenses of misappropriation. Secondly from themeaning of forgotten property, the article analyzes whether difference exists betweenforgotten property and lost property, concluding that we shouldn’t distinguish the two,which means in criminal law lost property belongs to forgotten property. The secondpart is the identification for invading behavior. By contrast theories of two mainstreams in domestic and overseas, the article considers that the connotation ofso-called “illegal appropriate to oneself” means that doers transfer other people’sproperty occupied illegally into their own, without returning to the owners as required;doers who illegal appropriate to oneself announcing as the owners, enjoy all the rightsof the property to realize their illegal purpose.“Refuse to return” and “refuse to handover” cannot be equal to offenses of misappropriation; in fact, it’s importantdocument of establishing of offenses of misappropriation. Party three is theidentification of offenses of misappropriation non-typical seizes action, which mainlydiscusses the dividing lines among offenses of misappropriation and limits ofnon-crime, limits of larceny, crime of intentional destruction or damage ofproperties, crime of swindling and resurrect archeological area, ancient tombs crimeand resurrecting ancient human fossils, Vertebrate Paleontology Fossil and otherrelevant crimes; and identify relevant crimes accurately in order to realize unitary.The fourth part is the identification of litigation form and accomplished offense interms of offenses of misappropriation. Offenses of misappropriation was one of thecases which were dealt with seldom in crimes in1997, and so judicial office shouldn’tprosecute criminals positively, but to encourage the relatives of victims to prosecutethemselves. The original intention of “no prosecution, no treatment” is to maintain steady social solidarity and social relationship. Meanwhile, this kind of litigationinfluences the identification of accomplished offense in offenses of misappropriationdirectly.