On The Criminal Regulation Of Unauthorized Use

As common infringement behaviors of property in daily life,unauthorized use has been paid more and more attention by criminal law scholars in recent years.The reason for this is not only the increasing of unauthorized use,but also the expanding range of behavioral object,the harmfulness of behaviors can not be ignored anymore.There are many controversies in the criminal law theory and judicial practice caused by the uniqueness and complexity of the unauthorized use itself.Therefore,this article seeks to clarify the definition of unauthorized use,learn from the experience of extraterritorial legislation,review deficiencies of existing legislation,explore the regulatory approaches by criminal law,put forward the idea of increasing the "Crime of Unauthorized Use",in order to find the dynamic balance between the right to protection and the fight against crime.This article is divides into four parts,about 43000 words,its main contents are as follows :The first part of the dissertation is about theoretical exploration of unauthorized use.This part aims at clarifying the complex definition of unauthorized use,distinguishing some similar behaviors,summarizing the types of unauthorized use and analyzing the compositional characteristics of it,thus constructing the discourse platform for the follow-up study.The second part of the dissertation is about the academic disputes on the punitive necessity of unauthorized use.This part intends to analyze the contention of academics on the criminal penalty of unauthorized use.By exploring the violation of unauthorized use to the property rights and the normal property order and even the social order,it could affirm that some legal interests have been infringed by unauthorized use,and then identify the boundary of punitive behaviors.As so far,the realistic foundation for the punitive necessity of unauthorized use has been found.At the same time,this part proves the punitive necessity of unauthorized use by the theoretical way,through expounding the modest and restrained nature of criminal law,and explaining the purpose and the mission of criminal law.Therefore,it could be concluded that the unauthorized use should be punished by criminal law.The third part of the dissertation is about status-quo and analysis of legal regulation on the unauthorized use.This part,on the basis of determining the criminal penalty of unauthorized use,this part analyzes the status-quo of Chinese laws and regulations on the unauthorized use,and then find out that the criminal law makes provisions only for the special type of unauthorized use,such as misappropriation of funds crime and misappropriation of public funds crime,and lefts the vacuum of criminal law for the general unauthorized use.Although the relevant judicial interpretations involve the unauthorized use of motor vehicles,these stipulations are contrary to the theory of criminal law;civil law and administrative law make the rules to general types of unauthorized use,but those rules only applicable to the less harmful unauthorized use,thus it is difficult to effectively deter the rampant unauthorized use.As a result,it is urgent to improve the legal provisions thus to fill the vacuum of criminal law.The fourth part of the dissertation is the exploration of the way to regulate the unauthorized use by criminal law.This part aims at looking for a feasible path to criminalize behaviors of unauthorized use and make up the vacancy of criminal law.Theft crime requires the perpetrator to have the purpose of illegal possession,and the perpetrator of unauthorized use does not have such a purpose to property.At the same time,by demonstrating the type of misappropriation crimes can not be recognized as a interests crime against possession,thus declares the path of claiming unauthorized use as theft larceny crime has failed.Lastly,this part puts forward the idea of increasing the "Crime of Unauthorized Use" in criminal law.