On The Crime Of Encroachment On The Property Of Others

The article 270 of Chinese Criminal Law stipulates that, the objects of the crime of embezzlement include property in commendation or property forgotten or buried by other people. Because the law expression is relatively simple and closely linked with the Civil Law, there are different views from criminal law theory circle, which causes confusion in judicial practice. Therefore this article based on the predecessor research,set "the property in commendation" of embezzlement as research object,study the elementary theory question of the crime of embezzlement and the dispute question which appeared in the judicial practice,put forward a point that "the property in commendation" has a broad explanation space,which can cover all the crime object embezzlement. Firstly,the standard significance of "custody" is to hold others'belongings based on the law or the other facts, whether it is legally or illegally.Secondly, it is hard to distinguish the embezzlement and the theft in some special cases,such as auxiliary problem and misappropriation of deposit. "The custody" is the key factor to distinguish the two crimes,because the expression of "custody" is more appropriate than "the possession",which can clearly reflect the nature of embezzlement. Thirdly, due to the particularity of criminal character and criminal means, the crime of embezzlement is closely associated with the civil law system.Unjust enrichment and non-management can form the basis for embezzlement, illegal reason payment should be divided into commission with illegal cause and illegal reason payment. The former can constitute embezzlement, because the target of criminal offense of misappropriation is not limited to legal property and the ownership is not transferred, the latter can not constitute embezzlement because of the transfer of property. Lastly,"the property in commendation" includes "the property in commendation" and "forgotten or buried property",the second paragraph of article 270 is attentive provision, which is not parallel relationship with the paragraph one.