The Fact Of Appropriation In The Accusation Of Misappropriation

Before the New Criminal Law was amended, in practice there are discrepancies among the resolutions to the Appropriation activities, and generally there are three kinds of solutions: (i) to be understood as the Accusation of Misappropriation; (ii) to be accused as Larceny or False Pretences; and (iii) to be settled through civil proceedings. After the New Criminal Law was amended, some issues about the Misappropriation have been solved, however, no further researches have been done to the Misappropriation concerning the important difference between its comprehensive definitions and the legislation of foreign countries, thereof, there are numerous debates concerning the object of Misappropriation, such as, how to determine the object of Misappropriation; how to understand the custody of some other's property; if the property of undue advantage can be treated as the object of Misappropriation; what is the oblivious object; what is the difference between oblivious object and lost object; and how to determine the appropriation of lost object. All these issues make great differences among the treatments and settlements of the Appropriation in practice, and scholars have to reconsider the accusation of Misappropriation and to research its essence from a new angle, thereby re-judge the object of Misappropriation under the current criminal laws and regulations.Through the analysis of different definitions between the Appropriations both under Criminal Law and the Civil Law, a concept of Fact of Appropriation is raised. Based on this new concept, some discussions are made concerning the essential characters of Misappropriation, the categories of Fact of Appropriation are summarized within this framework, some analyses are newly made concerning the custody object, oblivious object and buried object, and a new point of view is made, which author hopes the academic study and relevant practical issues could be benefited. This essay is divided into three sections:Ⅰ.The Differentiation and Analysis of Appropriation in the Criminal LawIn this section, the author compares the difference between the definitions in the Criminal Law and the Civil Law, points out that these differences are caused by different legislation requirement, and analyzes different theories of Appropriation in the Criminal Law, thus to conclude the theoretical basis for PRC Criminal Law. The author deems that the Appropriation in the Criminal Law is a simple fact, which must be more practical than it in the Civil Law. As a simple fact of controlling and dominating, the Appropriation in the Criminal Law is the appropriator's general intention, which is different to the Appropriation in the Civil Law that emphasizes the different rights. So the Appropriation in the Criminal Law is a fact of Appropriation.Ⅱ.The Understanding of Appropriation CharacterIn this section, firstly the author makes analysis concerning the theories on the essential character of Misappropriation, and based on the detailed discussion, the author discovers the misgivings existed in theory that may change the legal Holding into illegal Appropriation. The author further discovers that the essential character of Misappropriation is the activity of the appropriator who illegally changes the Fact of Appropriation and occupies the other's property. After summarizing and analyzing the characters and categories of Misappropriation, the author establishes the status of the Fact of Appropriation in Misappropriation.Ⅲ.The Detailed Cognizance of the Fact of Appropriation in MisappropriationThis section is based on the Section I and Section II, and the author makes new divisions between the custody object, oblivious object and the buried object.The author expatiates the concept of custody and concludes that to determine the concept of custody accurately shall be based on the essential character of Misappropriation, that is to say to determine the concept of custody shall be based on the Fact of Appropriation. Thus if the Fact of Appropriation is formed despite that whether the doer is authorized by the property owner or its appropriator, it shall be treated as the"custody"provided in the Article 270 Clause 1 of the PRC Criminal Law. The author considers that real property, intangible property, forbidden articles, theft and the object of illegal delivery can be treated as object of Misappropriation, and to misappropriate the above obje。cts will commit Misappropriation under no specific circumstance.Finally, this essay is based on the proposed regulations and noted regulations, and the author mainly expatiates that Article 270 Clause 2 of the PRC Criminal Law shall be classified as noted regulations, and oblivious object and buried object shall be treated as the custody object provided in Clause 1. Bearjing the belief of"to interpret but to criticize the Criminal Law", the author points out that it shall commit the Misappropriation to misappropriate the objects other than oblivious object and buried object, thus to end up the discrepancies between if a distinction shall be made between the oblivious object and buried object and if floating object could be treated as the object of Misappropriation, ect.