Research On Issues Of Civil Liability For Conversion

In recent years, the cases of conversion emerge in a large numbers, such as “Xu Tingcase”“Liang Li case”, academic members debate a lot on how to judge the nature of this kindof behavior, is it an unjust enrichment, property infringement or property crime? A lot ofscholars dissent from the judgment of larceny in “Xu Ting case”, furthermore,“Liang Licase” was finally judged as unjust enrichment, many people attribute it to the affect of publicand media, it seems that all judgments are lack of the theoretical basis that could convincepeople. The main reason is that most scholars are constrained by department law and rarelystudy on the relationship between civil and criminal law, as well as the long tradition ofthinking highly of criminal law and neglecting civil law, the judgments of such cases showthe trends of criminalization. This model confuses the boundary between civil and criminallaw, it tends to be criminal in determination of basic legal relationship and responsibilitywhich goes against the maintenance of justice and the legal rights and interest of party.This dissertation consists of the introduction part, three charts and the conclusion part.The introduction part explains that cases of conversion occur frequently in the judicialpractice, however, civil and criminal law relating with conversion are too simple and lackingof operability, all of these result in difficulty of cognizance.Chart one investigates theoretical thinking and system construction of provision relatingwith conversion in Roman Law, Common Law and Civil Law, in order to provide fair andvalid processing pattern to solve this problem. Furtum in Roman Law is similar to conversion,converter is responsible for restituting property and possession, it may also cause delictumand quasi contract obligations. At Common Law, the part of property tort set up independentsection of conversion, which fully stipulates identification and compensation provisions oftort liability, in addition, Restitution Law also provides for the returning responsibility.Principles, Definitions and Model Rules of European Private Law, Draft Common Frame ofReference also stipulate relating civil responsibility, including tort liability, returningresponsibility of unjust enrichment, ownership and possession provisions.Chart two defines conversion from many aspects, the object, subjectivity, objectivebehavior, damage and causality, that is a behavior interfering with other’s right in the propertywithout the consent of people having right of possession or lacking of justification, such as possession, dominate and control. On the basis of above analysis, the state of conversion isunauthorized possession, however, this illegal possession should protected by law, in order toreduce the probability of being damaged, maximize interests of victims and stabilize socialproperty order.Chart three concludes civil and criminal law for conversion, as well as differencesbetween them, main factors of determining civil liability are interests scope, fault of victim,relationship before conversion and the amount involved. The civil liability system whichincludes tort liability, unjust enrichment and property law could fully protected victim ofconversion; on the contrary, criminal sanctions may impel converter not to concentrate onkeeping, even damage items, which hinder the return of property. Therefore we should adoptcivil law to regulate conversion, aiming at maximizing the interest of the victim and savingjudicial resource.The conclusion part points out that human nature is evil, the legislation and judicialpractice should take it as the premise and fully consider the adaptability of law and humannature. Even for pressing the evil and supporting the good, legislation and judicial policycould not use raising the level of moral or ethnical as excuses to criminalize civil disputes.The law should draw clean distances with other social regulation norms, not raise the moralissues to be law cases.