Research On The Overlap And Demarcation Criterion Of The Crime Of Encroachment And Unjust Enrichment

Crime of Encroachment constitutes one of common charges in property crime with17years history since its addition in the criminal law in1997. Due to the diversification ofsocioeconomic phenomenon and the complexity of economic behavior, the overlap ofcriminal case and civil case in juridical practice constantly generates problems. With respectto property crime, the overlap of crime of encroachment and unjust enrichment is a prominentexample. One feature of crime of encroachment is that the actors’ object of crime is others’property encroached by the actor, which is extremely similar with some circumstances ofunjust enrichment. For this reason, it is difficult to distinguish crime of encroachment andunjust enrichment. In academia, whether the unjust enrichment can be convicted of crime ofencroachment is controversial all the time. This thesis attempts to explore the range of overlapand the specific demarcation criteria from the overlapping case of crime of encroachment andunjust enrichment for the purpose of reaching favorable conclusions for judicial practice.Except the introduction, this thesis consists of the following four parts. The total numberof word is about31,000.Chapter one put forwards the problems concerning the overlap of crime of encroachmentand unjust enrichment. This chapter points out the existence of different treatment suggestionson the overlapping case of crime of encroachment and unjust enrichment by taking somecases in juridical practice as an example. Then, it explains the dispute over the relationshipbetween crime of encroachment and unjust enrichment in academia. In regard to this dispute,the author indicates her standpoint through questioning the theory of denial, namely, theoverlap indeed exists in crime of encroachment and unjust enrichment.Chapter two analyzes the cause for the overlap of crime of encroachment and unjustenrichment. This part focuses on two issues: First, it expounds the concept, legislative intentand constitutive requirement of crime of encroachment and unjust enrichment and clarifies thebasic types of unjust enrichment and the substantive characteristics of crime of encroachmentof which the possession turns to be illegal. Then, it also explores the cause of overlap fromsuch three perspectives as keeping others’ belongings, mislaid and hidden property, theoverlap of unjust enrichment and infringement act. Next, it discusses the essence of crime ofencroachment and unjust enrichment, namely, the overlap of legal relations between criminal and civil cases and proposes three causes for the overlap, namely the concurrence of criminaland civil laws and regulations, conduct concurrence and legal liability combination.Chapter three introduces specific circumstances of crime of encroachment and unjustenrichment. The author starts from unjust enrichment obtaining with and without performance,basic types of unjust enrichment to summarize the specific circumstances concerning theoverlap of crime of encroachment and unjust enrichment. In this part, the author also analyzesand explains such concepts as lost property and mislaid property, along with the object ofobligation and trust item obtaining with illegal access.Chapter four comes to the demarcation criteria of crime of encroachment and unjustenrichment. The author considers that in certain circumstances unjust enrichment cantransform into crime of encroachment and the demarcation criteria can be obtained from theconstitutive requirement of crime of encroachment. The beneficiary of unjust enrichment isnot deliberate subjectively. Even if the beneficiary has some ill will, he just wants to excludeothers’ use or occupation of property temporarily; while the doer of crime of encroachment isactually intentional and possesses the purpose of illegal possession. From the objectiveperspective, the transformation of unjust enrichment into crime of encroachment can beclassified into two steps: Firstly, the method of acquiring benefit of the beneficiary of unjustenrichment possesses no illegality. Once he is involved in infringement such as disposal orconcealing, his behavior is civil wrong behavior; Secondly, if the beneficiary refuses to returnor hand over the occupied property after carrying out the infringement act, his behavior turnsfrom illegal act against civil law to the criminal penalty act, accomplishing the completetransformation to crime of encroachment.