Evaluation On The Nature Of The Act Of Possessing Sealed Property Illegally In Criminal Law

In modern social life,to entrust or accept a commission to keep sealed property is becoming a more common phenomenon.But it also produced a series of problems.For example,the embezzlement case of Ma and the theft case of Zheng and Wang in this article,how to convict the trustee when they illegally possessing sealed property?This is a big controversy in the field of criminal law theory and judicial practice. In the case of Ma,Ma carried on the password box in commendam and run away with the purpose of possessing the money in the password box illegally.However,he failed to open the password box.In this case,how to convict Ma’s behavior,larceny or embezzlement?In the theft case of Zheng an Wang,the two men steal the gasoline by the way of exchange illegally an resell them to get profit when they transport the gasoline for company.Are they constitute the crime of embezzlement or theft?For the above problems in judicial practice,in a long time,it is a big controversy in practice circles.Sorme scholars think that we should distinguish the suitcase and belongings inside the suitcase.For the suitcase,it is a legitimate possession for the trustee,but if he steals the belongings inside the suitcase,it is illegal.Some other scholars do not agree with the above viewpoints,they think we should consider the suitcase and belongings inside it as a whole.Therefore,taking possession of the suitcase or its belongings are all recognized as embezzlement crime.Some scholars in China have done a systematic study on this issue.but up to now,the depth of theoretical research has not reached the level of settling disputes,most of them are still stay at the theoretical level of various theories.In the judicial practice,there are many opinions for the behavior of illegal possession of sealed property,it do not form a unified understandings and regulations.In this article.we will identify the problem through the analysis of sealed property concept、illegal possession of sealed property theory、cognizance of possession in criminal law.Due to the behavior of illegal possession of sealed property and its inside belongings is different from other general violations of property rights,it has the particularity in the behavior object and behavior method.There are two kinds of views in identification of charge for the behavior of illegal possession of sealed property,some scholars think that it is larceny while others think that it is embezzlement.The fundamental reason for this disagreement is that there are some different understandings on the possession issues of the belongings inside the sealed property.If identifying the trustee have the possession of the whole sealed property,then the trustee’s behavior constitutes the crime of embezzlementif identifying the client have the possession of the belongings inside the sealed property,then the trustee’s behavior constitutes the crime of theft.For the problem who occupies the sealed property and the belongings inside it,there are four main theories in the academic circles,which are as followings :the possession of trustee、the possession of client、the distinct possession and the amendment of the distinct possession.The writer thinks that the opinion of the distinct possession should be insisted when determining the ownership of the sealed things,this is because no matter considering the concept of the possession、the aspect of the sealed property and its belongings or the understanding of the general social concept,the distinct possession appears to be the most appropriate. Also,in the judicial practice,many judges have insisted the distinct possession for the behavior of illegal possession of sealed property.