Research On The Boundary Between The Crime Of Occupational Occupation And The Crime Of Theft

In recent years,the number of crimes of theft and occupation in property infringement cases has increased.There are different difficulties and differences of opinions on the respective identification standards,which makes it difficult for the crimes to be accurately distinguished.Although there is a lot of research on the two crimes in the theoretical circles,most of the investigations lack practical operability.If the results of theoretical inquiry cannot be well applied to practice,it is meaningless.The author chooses a typical one from many cases:supermarket cashiers use the convenience of cash collection to illegally occupy the property of the unit.After the promulgation of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Application of the Law in Handling Criminal Cases of Corruption and Bribery"(hereinafter referred to as "Interpretation")on April 18,2016,the author analyzed the confusion in the conviction and punishment of the two crimes that emerged in judicial practice and clarified the boundaries of the two crimes.In order to identify the crime of occupation and theft more accurately.This thesis is divided into four parts:The first part,through the Chinese referee's paper network and other platforms,searches and analyzes a class of cases in which supermarket cashiers use the convenience of receiving cash to illegally occupy their own property,and analyzes the behavior types of the cases.At the same time,it points out that these cases are quite final but different cases,the reasons for the court's judgment,and the focus of the dispute in the case.The second part,based on the new "interpretation" after the introduction of the judicial practice of the two crimes confused,the two crimes in the focus of the dispute between the two judgments in the legal argumentation,analysis.The author believes that the prerequisite for the crime of occupation is that there must be a "possession"relationship between the actor and the property of the unit.Without the prior legal"possession" relationship,it can not become the subject of the crime of occupation.That is to say,If you want to constitute "use the convenience of your position," the actor must possess the property in advance.At the same time,the illegal occupation of the crime of official occupation should only include the occupation of a means,but not other means such as theft and fraud that the academic community generally believes.In the third part,the author concludes that the supermarket cashiers do not possess the property of the supermarket,that is,they have no control and control over the property through their hands.At the same time,the means of the crime of occupation does not include the act of secret theft.Therefore,the use of the convenience of the supermarket cashier to illegally occupy the property of the unit should be classified as theft.By analogy,this "possession" perspective also applies to various fields such as express delivery staff and food delivery staff.The fourth part,based on the qualitative confusion of the two crimes after the introduction of the new "interpretation" gives the author's superficial thinking and suggestions.It should be stipulated in the form of legislation or judicial interpretation that the objective behavior means of the crime of occupation of office is only one kind of occupation.As well as the appropriate refinement of the penalty standards for the crime of official occupation,the addition of relevant circumstances for the crime of official occupation,and the emphasis on the establishment of property penalties in the crime of official occupation,the theory better serves the practice.