The Qualitative Research In Behavior Of Secretly Stealing Back The Pledge

Theft and fraud are two common and frequent property crimes, their distinguishment isalways the focus and nodus of the criminal justice practice. in the analysis of traditional crimeconstitution theory, they are basically similar in both criminal subject、object and thesubjective side of crime,but still have some differences in the objective of crime, and thus it isnot easy to confuse them in general. however, due to the complexity of real life and thegrowing diversity of modern criminal means,multiple behaviors in many cases areintertwined,and it is common to find theft factors and fraud factors in one case, so it hasbrought much more problems of criminal justice practice,and thus lead to the qualitativedifference of the behaviors.In view of this,the paper chooses the case that Fan conduct crimeby stealing back the pledge secretly, Through introducing two different views on how to givea qualitative opinion, it expounds the important and difficult points in distinguishing theftfrom fraud. Firstly, whether“possession right”is the Legal Interest of Property Crime，Secondly is how to identify“disposition”，thus expand the legal analysis focusing on therefined discourse and discussion, and ultimately draw my own conclusions. The mainstructure of the article contains the following sections.The first part is the basic circumstances of the case，including a brief introduction to thecase that Fan secretly steals pledge back and two different opinion on the act of Fan and thefocus of controversy that case exists.The second part is the legal analysis and also the main part of the article, which containsthree major aspects. First,generality of theft. This part makes the analysis from the concept oftheft, the constitutive elements of crime of theft, the logical constitution of theft and fraud;inpart, on the basis of the objective elements of the crime,it introduce new theft species such asburglary、lethal weapons theft and pick-pocketing one by one. Second, analysis on crimesagainst property benefit.In Germany, the law on the Protection of property interests mainlycontains the property protection doctrine of law,the economic property doctrine andcompromise theory. In Japan,it is mainly the controversy between owner’s right theory and possession theory, and coordinating theory whose purpose is to coordinate their oppositionand conflict.in China, ownership theory was the mainstream in property-related crimes theory,then produced possession theory and limited possession theory.Eventually, by deeplycomparing Germany and Japanese the relevant doctrine on property crimes and analyzing thedeficiencies of traditional property crimes theory,the author hold fully positive attitudetoward limited possession theory and propose that “possession rights”should be the protectionof legal interests property crime. Third, the analysis and identification of “disposition”.Starting from civil legal right in civil law,it make a thorough comprehension from threeaspects of the disposal capacity and authority of the disposition、disposition will、error ofsubjective understanding,finally identify disposition is the key to distinguish theft from fraud.The third part is the conclusion of the study. By concluding theoretical analysis andempirical study mentioned above and returning to the case, further denying fraud theory,thusdrawing the conclusion:the behavior that Fan secretly steals back the pledge is identified asfraud crime.