The Determination On The Nature Of Driving A Car Away In The Name Of Test Drive

With the continuous development of economic and social progress,the crime of infringing citizens' property is increasing and presents in various forms.Among the crimes,the distinguishing of the crime of larceny,the crime of swindling and the crime of forcible seizure often causes controversy.In General,from the respects of the composition elements of property crime such as theft,fraud,snatch,there is no difficult to distinguish each other.However,due to the mixed criminal means in the practice and certain cognitive limitations of Civil servants,it is inevitable that there are disagreements in the atypical cases,which bring a lot of troubles to the judicial practice,and affect the justice and efficiency.This thesis probes into the qualitative analyzing this specific case of Ou plunder crimes,in order to better apply law in the analysis and qualitative of the similar cases.This thesis is divided into four parts:The first part describes the basic facts of the case,consisting of the cause of action,the case introduction,divergent views and focus of disputes.First of all,the introduction of the real criminal process of Ou drive the motorcycle away in the name of test drive.Secondly,the objective statement of the disputes and differences of opinions on the handling of this case.There are totally three specific views on the identification of Ou's behavior: theft,fraud and snatch.Finally,on the basis of this,the author sort out the main controversial focus from the two aspects of the facts and the law.First,the behavior of driving car away in the name of a test drive is a fraud or flagrant theft;second,the qualitative issue of flagrant theft.The second part is the jurisprudence analysis of the related problems,and the theoretical research around above conclusions.First of all,in order to solve the problem of "what kind of action is defrauding or flagrant theft ",this article analyses and discusses the determination criterion of the behavior of theft,fraud and snatch.Secondly,through the comments of the 'violence' in the snatch criminal facts,this article put forward the reasons that can be convicted as snatch in a public,peaceful way.The third part is the conclusion of this case,with the second part of the theory as a prerequisite for the identification of Ou's behavior.Although it will be certain confused in the behavior of taking property mixing the way with "cheating",through the appearance to perceive the essence of this case,driving the car away under the name of the test drive is only the "guise" of the perpetrators,fraud is not the major factor that caused property loss of victim and the victim didn't develop a error of cognition to provide property because of being deceived,therefore,fraud is eliminated.Secondly,under the framework of " flagrant theft ",it is not justified that identify the act of the taking property in a public,peaceful way as crime for granted.This is contrary to the principle of the interpretation of criminal law and exceeds the possibility of national prediction.The nature of taking property in a public,peaceful way should be the behavior of infringing private property obviously,which is an important key element of the constitution of a crime.For this reason,Ou's behavior is crime of snatching.The fourth part is research revelation.Based on the analysis and theoretical research on the case of "Ou occupy the car in the name of test drive",the author still needs to clarify the position of snatching crime in China's criminal law system.In addition,in the process of judicial determination of criminal acts,we cannot ignore the role of the criminal purposes,the subjective awareness and psychological attitude in the criminal behavior.