A Qualitative Study Of The Act About Owner Stealing The Mortgaged Property On The Purpose Of Deception And Penal Adaptation

In judicial practice,whether the crime,in which the perpetrators steal their property after pledge it for loans under another people’s name,should be found of swindling or larceny is a big dispute,as well as the evaluating of the criminal amounts.In this article,the case that Qiang and others forged a car-related certificate to obtain a loan by fraudulent fraud and stole the pledged car is taken as an example.Based on the analysis of the first and second trial results of the case,the issues related to the distinguish of larceny and swindling and the evaluation of the criminal amounts are proposed.To clarify these issues,this paper first pointed out that the behavior of the perpetrators to obtain loans through pledges does not meet the criminal constituent elements of swindling,but is a kind of civil fraud.Then this paper analyzed the existing mainstream property laws benefit protection theory,and pointed out that,compared to other theories,the legal-economic property theory has the advantage of distinguishing larceny and swindling and evaluating the amounts simultaneously.Using the theory,this paper further identified the criminal acts in the case,and pointed out that: the perpetrators steal others legal possession,damage the overall property interests of others,hence their behavior constitutes larceny;the amount of crime should be determined on the basis of the total property loss of the victim.In view of the problem of joint crime in this case,this paper analyzed the division of labor,criminal responsibility,the circumstances of sentencing and the application of punishment of each joint offender from the perspective of the theory of accomplice.According to the results of the case analysis,this paper summarized the methods of distinguishing the crime of swindling or larceny and their application in judicial practice.