On The Determination Of Nature Of Embezzling The Payment With Illegal Cause

There is a consistent dispute on the issue of the qualitative of the payment with illegal cause between the theoretical field and the practical field. The major concern is whether the assets paid through entrusting due to the unlawful reasons can be the object of crime of encroachment.the payment with illegal cause refers to the act that the actor unlawfully possesses the property or interests the giver gives out of unlawful reasons, refusing to return or to hand them over, including the act of unlawful possession of transferred ownership property and the act of unlawful possession of others entrusted property. The encroachment in the payment with illegal cause is the act of unlawfully possessing others entrusted property, refusing to return or to hand them over. In the criminal law sense, the generalized unlawful payment act includes the act of transferring the property ownership and the act of entrusting others property; the narrowed unlawful payment act only refers to the act that due to unlawful reasons, the giver has the subjective intent to transfer the property ownership to the actor and objectively directly gives the property and transfers the property ownership. According to different encroachment objects, the payment with illegal cause can be divided into material behavior payment with illegal cause and the commission payment with illegal cause.At present, on the issue of the qualitative of the payment with illegal cause, there are several principal theories as follows: Positive statement,Negative statement,Differentiated statement. The causes for dispute is mainly due to different opinions on the object of the crime of encroachment, whether it is necessary to differentiate unlawful and entrusted in the criminal law and other theoretical problems among the academicians.The prerequisite for the accurate determination of the nature of the payment with illegal cause is to clarify the bifurcation problem in theory targeting the disputable opinion. In the criminal law, it is necessary to distinguish unlawful given material and unlawful entrusted material. At the same time, there are two kinds of object of the crime of encroachment. One is the actor is entrusted to take care of other's property; the other is property forgotten or buried by others. Entrusting includes unlawful storage to which the unlawful entrusted material belongs to. Thus, unlawful entrusted material can be the object of the crime of encroachment, while unlawful given material is not. Therefore, the encroachment of unlawful given material shall not be deemed crime of encroachment, while the encroachment of unlawful entrusted material shall be deemed crime of encroachment.