The Verification Of The Crime Of Embezzling Forgetting Things

According to China's criminal law research, many scholars study the crime of embezzlement in-depth. The articles of embezzlement monograph are also relatively many, but the research of embezzling forgetting things is less, the majority of articles about the crime of Embezzlement have focused on the crime of embezzling keeping property crime. It is undeniable that the crime of embezzling forgetting things in the daily life of crime is high frequency. There is a certain degree of social harm. Based on the theory of criminal law and civil law, the paper have tried to study the legislation home and abroad of embezzling forgetting things and study the related issues. This essay emphasized the verification of the forgetting things, thus made some legislative proposals to guide criminal justice activities scientifically.The first part of this essay introduces the legislation of embezzling forgetting things on domestic and foreign country. Firstly, the criminal law of the other countries has only"lost things", but not"forgetting things". It can be seen that the legislation of embezzling lost things is internationally recognized. Secondly, from the analysis of China's legislation history, we can see that the ancient Chinese criminal law prescribed the punishment of embezzling forgetting things which is regard as theft. After the founding of New China, the Penal Code draft of China provides the crime about"lost things". In 1997, the Penal Code added embezzlement with"forgetting things", not"lost things".The second part of this essay discusses the verification of the forgetting things, which is the focus of the essay. This section has three problems. The first is the relationship of"forgetting things"and"lost things". This issue is highly controversial for the criminal law scholars. It is premise of verification of embezzling forgetting things. Criminal law researches have two viewpoints on the distinction between the two: positive theory and passive theory. In my view, literally, the "forgetting" and "lost" have different characters, which indicate that the legislators have considered its reasons adequately. The legislative intent is to distinguish between the two. However, it is reasonable that the positive theory distinguishes between the two from the time, location, the owner of the memory capacity of the lost things. But if we study carefully, we found that they are unreasonable and they have their drawbacks. They can not distinct effectively lost things and forgetting things. In Practice, they make conviction more complicated. In fact, lost things and forgetting things are interrelated and interdependent. They would be difficult to distinguish between the two. Therefore, It would be rather find the distinction between the two than equate the two. In practice it can easily be identified. Moreover, the legislations of countries in the world indicate that it is universally recognized internationally. The author believes that legislation should substitute"lost things"for"forgetting things"The second problem is the distinction between forgetting things and other possessive things. This study is to distinguish the crime of embezzling forgetting things and theft. I agree "the two control view corrected" that there is two instances, which is public space and non-public space. In the view, if the forgetting things are in the public space, the second controllers who have a clear awareness can make the influence of a second control. And in the non-public space, it requires only a general awareness of control. The view says that the standard whether there is mobile people at the same time in the space is divided into public space and non-public space. This view not only takes into account the changes in the same place, also taking into account space administrators'obligation. It is fair and reasonable. It should be adopted. The third question describes the expansion of the forgetting things. The forgetting things, drifting things, sinking goods, runaway animals, illegitimate property and misused things have a great links. Whether forgetting things including these disengaged possessed things will influence the scope of the forgetting things. In my opinion, the drifting things, sinking goods, runaway animals accord with the characteristics of forgetting things. They should be regarded as forgetting things. But the misuse of property and illegal things is not a criminal target of embezzlement.The third part of the essay is the objective aspect of embezzling forgetting things. This section also has three problems. The first question is"illegal possession". "Illegal possession" has four forms: the illegal use of decreasing or losing the values of the other people's property; the acts of illegal proceeds by using other people's property; the illegal disposed actions of other people's property; the nonfeasance of possess other people's property. The second question is"larger amounts". Embezzlement of the Chinese criminal law does not specify any amount. What is the criterion of "large amount", "enormous amount"? The author believes that not only should the law clearly stipulates the amount of embezzlement standards, and also to distinguish between the amounts of embezzling keeping property and embezzling forgetting things, buried things. It should not be integrated in a standard, because two crimes have different harm. The third problem is"refusing to hand over". "Refusing to hand over" is a condition of cognizance of embezzlement and a independent act. It is not included into the act of embezzlement. The time limit of "refusing to hand over" is the difficult issues. In China's criminal law research, there is register standard, the before court standard, first pre-judgment standard, second pre-judgment standard, reconnaissance standard and the distinction standard between private prosecution and public prosecution. But from legislative intent of the analysis, we should not only take the modesty of the criminal law into account, but also take yielding criminal suspects into account. I think the time limit of "refusing hand over" is before the victims making private prosecution.The fourth part of the essay is the subjective aspect of embezzling forgetting things. Embezzling keeping property and embezzling forgetting things is common. They all must have purpose of"illegal possession". So the subjective aspect can only be direct deliberately. The criminal purpose of embezzling forgetting things is "illegal for their own for the purpose of this objective is the illegal possession. The purpose is subjective element of crime. If the perpetrator only acts intentionally, the deliberate intent can be deliberately delayed or temporary use the forgetting things without "illegal possession" purpose, the purpose of the perpetrators is to also subjective to give owner, it can not say that the perpetrator commits the crime of embezzling forgetting things. This issue is controversial in criminal law research. Most academics believe that the intent and criminal purposes of embezzling keeping property are after the time of embezzling the things. But embezzling the forgetting things and buried things are different. Regardless of their subjective intention and the purpose of illegal possession, and regardless of before or after, the conviction of embezzling the forgetting things and buried things should not influencedThe fifth part of the essay is the legislative perfect of embezzling forgetting things. The essay presents four aspects of the legislative proposals. First was substituting"lost things"for"forgetting things". Second is to expand the scope of the forgetting things. Make drifting things, sinking things, runaway animals and other disengaged possession into the scope of embezzlement. Third is confirming a amount standard and re-establishing legal sentence. Distinct the legal sentence and amounts between embezzling keeping things and embezzling the forgetting things, buried things. Fourth is time limit of "refusing to hand over". Make time limit of "refusing hand over" be before the victims making private prosecution.