Study On The Distinction Between Duty Encroachment And Larceny

With the advancement of reform and openness and further development ofmarket economy, it has been far from enough to simply rely on crimes such as larceny,fraud and corruption to protect the interests of various market subjects. Thus, dutyencroachment appears. Duty encroachment does have solved some practical problems,however, it brings us several new problem. For example, the case of communitysecurity who steals the proprietor’s bike reflects the difficulty of delimiting dutyencroachment and larceny in juridical practice. The article intends to comb relativecases, sum up previous information and then analyze deep reasons of the problem.The author proposes some suggestions on the basis of analyzing the past criteria ofdelimiting duty encroachment and larceny.It happens frequently that a case’s quality is difficult to determine in juridicalpractice, while the concurrence of two crimes happens much more frequently. As forduty encroachment and larceny, their hard delimitation occurs from time to time. Thearticle raises the question of concurrence through two cases:“a community securitysteals a proprietor’s bike” and “a worker in jade processing factory steals jade debris”.Then, the article argues and concludes that “theft pattern” concurrence of dutyencroachment and larceny happens when duty encroachment’s action fashion is notlimited to encroachment, but including steal and cheat. The article examines in whatsituations the concurrence of the two crimes would happen.After examining the situations of concurrence, what we need to do is to set up astandard for delimiting the two crimes, that is, how to solve the difficulty ofdetermining the quality of a case in juridical practice. Apparently, people in practicedelimit the two crimes from aspect of subject and object of crime in constitution. Inother words, the subject of duty encroachment is special--persons in companies,enterprises or other institutions, and its object is limited to the unit property. However,larceny’s subject is general and its object includes any public and private property.This article analyzes the scope(nature) of company, enterprise and other institutions in detail, and then tries to delimit duty encroachment and larceny.It’s obvious that thereis no essential difference between the subject and object of crime, because theconcurrence will not happen until the two crimes’ subjects and objects are ambiguous.Only when both conditions are satisfied will such concurrence of “theft pattern” dutyand larceny appear.Traditional view is unable to delimit the two crimes. By searching the actionfashion of “theft pattern” duty encroachment and larceny, the article holds that thekey to delimit the two crimes is how to understand “theft”. Larceny’s action fashion islimited to general secret theft, but duty encroachment means a theft which takesadvantages of his own position. Then, we can conclude that our problem is how tounderstand “taking advantages of one’s position” exactly.Asfor the interpretation of“taking advantages of one’s position”, current theory says it means taking advantagesof directing, administrating, handling or operating properties of his own organization.The article intends to analyzing the traditional view after summing up scholars’delimitation of “taking advantages of one’s position” and “taking advantages of one’sservice” as well as “taking advantages of one’s work”. However, the author finds thatscholars’ interpretation of “taking advantages of one’s position” varies with eachother and doesn’t develop a unified standard, which results in the difficult ofconviction and punishment in juridical practice.Since current methods of analyzing problems fail to provide us a reasonablesolution way, the author tries to interpret “taking advantages of one’s position” in anew angle, hoping to solve the problem of hard delimitation. The article delimits“taking advantages of one’s position” from an angle of specification destination, thatis, interpret it in operation order. Operation order, we define it as an order which helpscompanies, enterprises or other institutions to operate and function well. We believethat duty encroachment’s norm aim is “forbidding one’s power of office violating theinterests and order of an unit”. Therefore, when a person from an inner organizationsteals properties and violates the operation order, we say that there is a causativerelationship between the person’s position and theft behavior. The person takeadvantages of his position and should be identified as duty encroachment. If a persondoesn’t violate the operation order of an organization, he will not take advantage of his position. Thus, he should be convicted as larceny.