On The Infeasibility Of Open Larceny

Currently, China is going through social transformation and in-depth judicial reform. And the unbalanced distribution of social resources may lead to the occurrences of various property crimes, among which the most prominent type is larceny, such as the cases of Xu Ting and Grapes for Whopping Price. And in the trials by various local courts, due to different theoretical basis of conviction and sentencing, disparity in legal accomplishment of judges as well as different standards of local economic levels, the phenomena of similar cases with different judgments in different trials. Some were defined as larceny, and others crime of forcible seizure or even crime of encroachment.Therefore, some scholars put forward a new idea that the mode of larceny is no longer restricted to the confidential mode, and public behavior can also be regarded as larceny.This idea is supported by some scholars. Using the foreign theory of criminal law as a reference, the theoretical basis of “open larceny” is founded, subjectively interpreting the affirmation of the two crimes. Open larceny puts the confidentiality of larceny in an unimportant position. Crime of forcible seizure has been regarded as the behavior of seize belongings flagrantly. However, the idea of open larceny overthrows the traditional statement that larceny is the behavior of stealing belongings confidentially,thus, creating doubts in the customary legal concepts of the public. Moreover, open larceny didn’t take whether foreign legislation mode suits the legal environment in China and whether it would adapt to China or not into consideration. It also made the existing standard of conviction in judicial practice obscure and overstepped the cultural expectations of our laws. Therefore, it greatly influences the authority and fairness of China’s judiciary. So clearly defining the boundaries of larceny and crime of forcible seizure is a significant academic issue which is conducive to the judicial practice.The boundaries between larceny and forcible seizure in “open larceny” are difficult to define, bringing difficulties in the conviction of judicial practice. The nature of “open larceny” is the act of theft by open and non-violent means. That is to say, the act of theft causes no personal injury in public. Compared the legislation evolution in China with larceny in other countries, it has been found that the reason why the larceny in the UK,USA, German and Japanese is not defined as confidential is that there is no crime of forcible seizure in these countries. Thus, in these countries, larceny, crime of forcible seizure and fraud come into one. On the contrary, when reviewing the historical development of China, it has been found that larceny and crime of forcible seizure have existed for a long time and they are comparatively independent. Therefore, on the basis of studying foreign theories and combining Chinese characteristics, the legislation mode which is suitable for the environment of China has been explored. Firstly, in terms of criminal behavior, in open larceny, the doer transfers the victim’s belongings on the spot and the severe subjective malignant exceeds the degree of larceny undoubtedly constitutes the crime of forcible seizure in open larceny; secondly, in the elaboration of methods of literal rule, the interpretation of the behavior of confidentially stealing public and private properties and appropriating to oneself restricts the behavior of larceny into confidential theft, which is the correct literal rule. Therefore, it can’t be directly copied by considering the denotative meaning of the law. The concept of larceny is not necessarily equal to open larceny, it should also confirm to the semantic environment; thirdly, in terms of judicial interpretation, relative laws and regulations,the doer doesn’t act confidential subjectively and objectively in the so called cases of“open larceny”, therefore, stealing belongings publicly in peaceful means shall be regarded as crime of forcible seizure. As a result, in the legal practice of China, “open larceny” is not adopted and the confidential nature of the crime of larceny shall be maintained. Meanwhile, the judicial theory basis of trial in China’s legal practice shall be improved through various ways, judicial behavior shall be standardized and fairness and justice shall be implemented in the process handling each case.