How The Pledger Secretly Retrieved The Pledge Should Be Determined The Nature And Punished

The behavior of the pledgee to retrieve the pledge secretly has been repeated in the judicial practice,but there is still no uniform treatment method for its qualitative punishment.This paper takes the Case of Mr.Yu's Larcenous Crime as an Example.In this paper,the author analyses and studies the crime or the non-crime,this crime or that crime,the criminal form and the criminal amount of the pledge being retrieved secretly by the pledgee.The full text is divided into four parts:The first part is "the basic situation of the case",which is the question part of this paper.Through the introduction of the case of a secret retrieve of collateral,summed up the controversy in this case:whether the act constitutes a crime?Which crime the act constitutes?What is the pattern of crime?What is the level of criminal amount?There is a dispute between the existence of innocence and guilt,the crime of larceny and the crime of swindle,the criminal and the attempted,and the objective value and the direct damage.The second part is the theoretical basis of this paper.It includes four parts.First,whether the Pledgee secretly retrieve the pledge can constitute a crime against property,corresponding to the dispute between the crime or the non-crime.It mainly analyzes the legal status of lawful possessive relation and "unlawful appropriation" in the crime of infringing property,and provides a prerequisite for the determination of the act.The key to the controversy of the crime or the non-crime lies in determining whether lawful possession is the object of property crime.By comparing domestic and foreign relevant theories,and combining with our judicial practice,we can get the object that legal possession relation is the crime of infringing property.Second,the pledge being retrieved secretly by the pledgee constitutes theft or fraud,corresponding to the dispute of this crime or that crime.Clarifying that the key point in the case is the difference both the behavior and the disposition.The act of disposing of property is the essential difference between larceny and swindle.The determination of the disposition should consider the disposition ability,the disposition consciousness,the reason of the wrong cognition and the result of the transfer possession.Third,the controversy of the criminal form of the pledge being retrieved secretly by the pledgee.It mainly revolves around whether the property interest is the object of larceny.Analysis of the relationship between behavioral object and criminal object.Whether the property interest is the object of larceny or not,the controversy of negation and affirmation is put forward.This paper analyzes the pros and cons of the two and concludes that the property interest is the object of larceny.Forth,the analysis of the criminal amount of the pledge being retrieved secretly by the pledgee.This paper introduces two different viewpoints:Objective value theory and direct damage theory.The author puts forward the rules of determining the amount of crime.The third part is "The research conclusion of this case",as the empirical analysis part of this article.It includes the following four parts:First,Mr.Yu's act constitutes a crime.Second,Mr.Yu's act constitutes crime of theft.Third,Mr.Yu has finished the all criminal acts.Fourth,the criminal amount of Mr.Yu is direct losses as standard.The fourth part is "The revelation of this case".First,how should the behavior of the Pledgee's secret retrieval of collateral be qualitatively regulated by the method of interpretation of the criminal law application.The application of the criminal law are mechanical,and the interpretation method of the application of the criminal law are not unified,which determines that the judicial practice should pay attention to the use of the criminal law interpretation method in dealing with the similar behavior in these cases:being based on the principle of legality,and following the order of interpretation:literal interpretation,system explanation,historical explanation and objective interpretation.Second,the criminal amount of secretly retrieving the pledge by the pledgee should be based on both subjective and objective aspects.The intentional content of subjective purpose and the actual loss caused by objective are the criterion to achieve the crime balance.