The Identification Of The Criminality Of Taking Possession Of The Illegally Payment

This topic comes from the principle of Clean Hands, which means she who comes to equity come with clean hands. Article 708 of Japanese Civil law is based on the foresaid principle which stipulates if the payment is illegally, payer will loss the right of restitution. While there was a precedent in Japan that the payer pay to the payee in order to bribe his boss, but the payee does not fulfill the agreement and take possession of the bribes. If the valid, the payee will constitute the crime of embezzlement. While if the payment is illegal, according to Article 708, the payer will have no right to get the payment back. Then how to identify the criminality of the payee’s behavior?There are four parts of this thesis. In Chapter 1, we will try to rectify the definition of illegal payment, the components of illegal payment, the definition of taking possession of illegal payment and the types of the foresaid behavior. In Chapter 2, we choose the typical precedent in Japan and the discussion of Japanese scholar relating to the precedent to verify the attitude of Japanese law about the captioned issue. In Chapter 3, we choose the similar case in China and compare the difference between the results with Japan. We also refer to the discussion between Chinese scholars about this issue to help us get a conclusion of it. In Chapter 4, we confirm the integrity of the legal system and the core interest in crime against property shall include both ownership and the possession which can be indemnified according to civil law.In order to solve the foresaid problem, we have to identify the application order of the civil law and criminal law. Opinions are divided in this matter. Someone thinks that in order to keep the law system integrity, the identification of Criminality shall be based on the civil illegality. Therefore, if the payer loses the right to ask payee to return the bribes, the payee may take the ownership of the debt. If payee’s behavior does not constitute the civil illegalness, he cannot be determined as criminal. While others think that Civil law and Criminal law are two different legal systems. The aims of them are different. Civil law aims to get the loss recovered, while Criminal law aims to prevent crime by the way of punishment. If payee’s behavior meets the constitution of the crime, he shall be determined as criminal.The debates focus on two types of behavior. One is the foresaid potential crime of embezzlement; the other is the potential crime of fraud. If A and B get into an agreement into drug dealings. A pays B the money, while B gives A powders other than drugs. Will B constitute crime of fraud?As for the fraud, it seems the practice and the theory have come into a conclusion that since the illegalness is made by A, the payment between A and B is the exception of Article 708. Therefore A constitutes the crime of fraud. Things are different if A cheats B to offer service, such as prostitution, or to discharge A’s illegal debt. Theoretically, it cannot be determined as fraud, but the results are divided practically. As for the embezzlement, the criminality is based on the nature of the payment. If it is bribe or the payment for drugs, we shall pay attention to the intention of payer. If payer confirms the transfer of the ownership and he will not ask for return, payee shall not constitute the crime of the embezzlement. If payer does not want to transfer the ownership, the payee shall be determined as criminal. If the payment is money stolen, payer does not have the ownership. Payee’s behavior shall be determined as another type of embezzlement, taking possession of things without occupation illegally.There are no such articles like Article 708 in Civil Law of China. If the contract is determined as invalid because of its illegalness, payee shall return the payment to payer. Therefore, things are different in China. Payee does not lose the ownership of the payment because of the invalid of the contract and he has the right of recovery. There is no controversy between the application of the civil law and criminal law. If the payee hold the payment and does not return it to payer, he shall constitute the embezzlement. The real problem is the crime of embezzlement is the crime of "be handled only with complaint". Nobody will bring a suit against others risking exposure his crime. The case will be found with the trial of bribery or drug dealing, and may be determined as attempted crime, accessories or booty crime. If the payee has cheated the payer, he shall constitute a crime of fraud; otherwise, he shall not constitute a crime. As for cheating, precedent and theory in China also determined it as fraud. While the illegal debt cannot be recovered through legal proceedings, cheating for illegal service or discharging illegal debt shall not constitute a crime of fraud.