Division Of Theft And Embezzlement

Property crime is a kind of crime which seriously disturbs people's daily life and social order.In recent years,with the rapid development of China's economy and society,communication activities becoming increasingly close and various kinds of behaviors intricate and complex,property crimes are trending diversified.In judicial practice,the identification and handling of such crimes have constantly met with difficulties and challenges.In particular,as two extremely confusing crimes,theft and embezzlement have confronted controversies over the distinction between the two.This thesis introduces the focus of the dispute from a typical case that actually happened.On the basis of referring to some legal theories,the thesis discusses some key issues of distinguishing theft and embezzlement so as to accurately identify the nature of the relevant behaviors in the case and make fair handling of the case in accordance with law.This thesis mainly consists of three parts:Part One introduces the basic information of the case.This part is divided into four parts:cause,brief,disagreement and focus of dispute.The cause consists of the case of embezzlement committed by a Diao,the brief involves the relevant facts of the case,and the disagreement elaborates the different opinions on the qualitative handling of the case.As for the Diao's behavior,one opinion holds it constitutes theft while another opinion argues it constitutes embezzlement.As for a Wang's behavior,one opinion holds it constitutes a joint crime while another opinion argues it does not.Disputes involves four issues: the first is the ownership of 70,000 yuan in cash placed into withdrawal groove by the savings bank clerk;the second is the state of control over 10,000 yuan in cash forgotten into withdrawal groove by a Chen;the third is subjective cognizance of the Diao when taking 10,000 yuan in cash;the fourth is whether the Wang constitutes the intent or conduct of a joint crime.Part Two conducts legal analysis of case-related issues.This part focuses on the focus of dispute of the case,which is divided into four parts: ownership of property,control state of property,subjective cognizance of the doer and constitution of joint crime.In terms of the ownership of property,this part mainly expounds the differences of ownership in criminal law and civil law,as well as the recognition of the actual delivery in the transfer of ownership of movable property,especially the recognition and application of transaction habits.In the control state of property,the concept of oblivion is mainly proposed,and thepossession-related knowledge is employed to analyze whether the property loses the control over the owner or the holder.Based on the comparison of relevant theories and views,the“modified dual control theory” is adopted to describe the control state of the forgotten object in a specific place.As for subjective cognizance,this part,combined with the cognitive factors of theft and embezzlement respectively,analyzes whether the doer knows or should know that the property is under the control of others in his subjective cognizance.With regard to the components of the joint crime,this part expounds the contents and identification of the joint intent and the joint conduct.Part Three analyzes and judges the case.Upon analysis by combining the facts of the case with relevant theories,this part holds that 70,000 yuan in cash placed by the savings bank clerk into the withdrawal groove belongs to the Chen;10,000 yuan in cash forgotten by the Chen into the withdrawal groove was controlled neither by the Chen nor by the savings bank;the cash was held to be without control by the Diao in his subjective cognizance when he took off the cash;the Wang was held to be without joint intent or joint conduct of embezzling the cash.Finally the thesis concludes the case,namely the Diao constitutes embezzlement,and the Wang does not constitute a joint crime.