Abstract: Theft, robbery, fraud and corruption are close forms of crimes against citizens' property. In some atypical cases, it is really difficult to distinguish these crimes. Through comparative analysis, this paper makes an in-depth study of these crimes and comprehensively discusses their differences under some special criminal forms to reveal the essential characteristics of these crimes. Theft, robbery, fraud and embezzlement are similar forms of crimes against citizens' property, and their similarities are mainly reflected in the following aspects: First, the criminal subjects are all general subjects. Second, the subjective aspect of crime is to illegally possess public and private property for the purpose. Third, the object of crime infringes on the property ownership of the state, the collective and the citizens. Fourth, they are all consequential offenders, and they all use non-violent means. The difference between these crimes is mainly reflected in the objective aspects of crime. In a typical case, we can basically judge whether the crime belongs to one of these crimes according to the obvious differences in objective characteristics of these crimes. However, in some atypical cases, because the criminal's behavior characteristics are not obvious, it will bring certain difficulties to conviction. Here, the essential characteristics of these crimes are further studied in order to grasp the differences between these crimes more accurately.

1. A case in a jewelry store in Yunnan, a customer went to the counter and asked the salesperson to take out a diamond ring worth 80,000 yuan. The customer looked at the diamond ring for a while, returned it to the salesman and said, "I bought it, but can I use a check?" The clerk put the diamond ring back on the counter and said he needed to ask the manager. After asking the manager, the clerk returned to the counter and found that the customer had left. She took out the diamond ring and looked at it carefully, and found it was fake. The client was not caught in the end, but what the client committed was controversial.

Some people think that customers' crimes should be judged by when the real diamond ring was replaced. (1) If the salesperson gives him a diamond ring and the customer immediately replaces it, it constitutes a crime of fraud. Because customers use fraudulent means to obtain property. (2) If the customer brings the diamond ring to him from the salesman and says, "I bought it, but can I use a check?" After the switch, it constitutes a crime of embezzlement. Because the customer has formed a sales contract with the jewelry store after agreeing to buy it, the customer's possession of the diamond ring is legal, but after taking the jewelry, the customer fails to fulfill the corresponding debt, which constitutes the crime of embezzlement. (3) If the customer secretly takes out the diamond ring at the counter and puts it back when the salesperson asks the manager, it constitutes theft. Because customers use secret theft to obtain property.

The author believes that this analysis is not completely correct. What crime does this client constitute? The author thinks it is necessary to compare these kinds of crimes before we can really distinguish them, and this question can naturally be answered.

Second, the essential characteristics of the crime of embezzlement Article 270 of the Criminal Law stipulates that "illegal possession of other people's property for safekeeping, with a large amount, refuses to return it; Illegal possession of other people's forgetting things or buried objects and trees, and refusal to hand them over "constitutes the crime of embezzlement. The crime of embezzlement is divided into two situations: one is to refuse to return it under the condition of legal possession in advance; The other is illegal possession of forgetting things, buried objects and refusal to hand them over. The first case involves two issues: one is the confirmation of the way to determine the behavior of "custody on behalf of". The "custody" here includes not only the custody relationship based on the custody contract, but also the custody relationship formed by facts. In other words, all non-self-owned management relations should be regarded as "custody" acts stipulated in the criminal law. The following seven situations can form a relationship of "keeping other people's property on behalf of others". 1, entrusted by others. 2. Borrowing of actors. 3. Actor lease. 4. collateral actors. 5. Personal partnership property management. 6. Manage property without reason. 7. unjust enrichment. The second is the definition of the actor's possession and domination of things. This involves how to judge whether the actor legally occupies the property, which is also the key problem that distinguishes the crime of embezzlement from other crimes. Usually, the actor's legal possession of property stems from the above seven situations. However, it should be excluded that the actor holds the property for a short time with the permission or acquiescence of the property owner. For example, in the above case, if the salesperson gives the diamond ring to the customer, will the customer legally own it? The answer is no, although the customer owns the object, he has no control over it. The object is still under the control of the clerk, for example, she can make cautious demands on customers to reflect the dominance of the clerk over the object. If a third person bumps into a customer at this time, causing the customer to sell and the diamond ring to be damaged, the salesperson can only claim compensation from the third person on behalf of the jewelry store, not from the customer, and the customer cannot claim compensation from the third person. Therefore, from the civil law relationship, we can also see whether there is a guardianship relationship between the two sides. Then, in the above case, can the customer legally possess the transaction after telling the sales staff that the transaction has been reached? The answer is no, even after the sales contract is formed, the ownership has not been transferred without the consent of the owner of the house (usually by delivery), and it is impossible for the buyer to form a legal possession of the house. Otherwise, it means that it is not a crime for the buyer to steal from the seller's warehouse after signing the contract. Therefore, the formation of custody relationship, that is, the formation of legal possession, must have several elements: first, the owner or the original custodian instructs to transfer possession; The second is the establishment of the obligation of transfer of preserved objects. With the formation of custody relationship, the custodian often assumes certain obligations, but not all of them. The scope of the obligation often depends on the specific circumstances.

There are several special situations that need to be discussed about whether it constitutes the crime of embezzlement. For example, there is such a situation that "A entrusts B to keep the box, and B pries open the lock of the box and takes some or all of the property. When B returned to Box A, he did not return the property he had taken. " What is the crime of asking B? Some people think that B constitutes the crime of embezzlement. There are two main reasons for this: first, just because A has set a lock on the box, it cannot be considered that A has the property in the box. If B owns the whole box, it must also own the properties in the box. Second, it is obviously unreasonable to think that B encroaches on the whole box, which constitutes a crime of embezzlement, while taking away part of the property in the box constitutes a crime of theft. Another case similar to this case is that "A has a safe in the bank, and the bank manager B pries open the lock and takes away the property." What is the crime of asking B? In this case, most people think that B constitutes theft. But compared with the previous situation, only the box was replaced by a bank safe, and B became a bank manager with a special identity. His guardianship and the nature of his behavior have not changed. Why is the charge different? Some people think that it is because the bank safe is large and difficult to move and destroy, so in fact B has not completely occupied it, and A has not completely lost possession. This reason is obviously not convincing. Modern technology is so advanced that opening a safe won't be more laborious than prying a lock.

The author thinks that the authority of guardianship should be further investigated when examining the guardianship relationship. After the custody relationship is formed, it does not mean that the custodian enjoys full control. In addition to being unable to exercise the right of disposition, in order to better protect their property or privacy, the owner of the property often restricts the control authority of the custodian through certain express (such as explicit notification) or implied (such as locking or sealing). The authority of guardianship is different from the content of guardianship: the content of guardianship refers to the responsibility of guardianship. Ensure the safety of the whole box, including the safety of the property in the box. Custody authority refers to the extent to which the custodian can control the things under custody. The custodian can control the whole box, but it does not mean that the custodian can control the property in the box. Of course, the trustee can form a de facto domination, but this domination is illegal. Managed content is used to specify what the custodian should do; Custody authority is used to stipulate what the custodian can't do, and is generally used to restrict the custodian from seeing or touching a certain part of the property. Therefore, the integrity of the custody content does not mean that the custody authority is also complete.

After the custody is clarified, the confusion caused by the above two cases can be solved. In the case mentioned above, B pried open the box, which obviously exceeded the custody authority, so it was illegal for B to possess the property in the box. So B constitutes theft, not embezzlement. The same is true of the latter situation. As for B, he can take the whole box for himself, and then pry it open to take the property, which is not much different from taking the property directly in the box. The author believes that the objective aspects here are different. The former constitutes a crime of embezzlement and is not concealed; The latter is hidden, and the actor often subjectively pursues that when the box is delivered, the property owner does not find the property stolen because of ignorance or negligence.

It is also in line with the original intention of legislation that similar cases constitute theft. Article 253 of the Criminal Law stipulates: "Postal personnel who open, conceal or destroy mail and telegrams without permission shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. Whoever commits the crime mentioned in the preceding paragraph and steals property shall be given a heavier punishment in accordance with Article 264 (Theft) of this Law. " Mail belongs to the custody of postal staff, and the postal staff's taking away the property in the mail does not constitute a crime of embezzlement, but a crime of theft, which shows that legislators also consider that the content in the mail is the private control of the sender and receiver of the mail and is not within the custody authority of the custodian. The method of judging whether the custodian constitutes theft by clarifying the custody authority is also unconsciously used in ordinary cases. A shop assistant steals from the counter in the shop, not because of corruption, but because of stealing. Although the clerk has the right to keep the items on the counter, we don't think taking the items out of the store is also a keeping act. We should think that the clerk can only put the items on the counter in the shop area. Beyond the scope of the store, there is generally no longer a custody relationship. Therefore, the clerk's attempt to take the goods out of the store without justifiable reasons or authorization has exceeded the custody authority. At this time, her possession of the goods is not legal possession, but illegal possession, which constitutes theft.

At this point, we can sum up the characteristics of the crime of embezzlement, so as to better grasp the essence of the crime of embezzlement. Although the crime of embezzlement is divided into two situations, one is formed under the premise of legal possession, and the other is formed under the condition of illegal possession of two special items (forgetting things and buried objects). In the first case, although the actor legally possessed the property in advance, he was in an illegal possession state when the owner asked for it and refused to return it. Therefore, the crime of embezzlement can be described in this way, combining two situations: the actor did not use illegal means to form possession of property; Moreover, in the state of illegal possession, it is the crime of embezzlement to show everyone that it is necessary to continue this state. "Don't use illegal means" has two meanings: one is based on the custody relationship, and the other is the direct acquisition of forgetting things and buried objects. Whether the custody relationship is established depends on whether there are two elements: first, the owner or the original custodian instructs the transfer of possession; The second is the establishment of the obligation of transfer of preserved objects. An exception to the custody relationship is that the custodian has exceeded the custody authority.

Third, the difference between theft, robbery and fraud. Because the relationship between theft, robbery and fraud is illegal acquisition, which is obviously different from embezzlement. Moreover, because the differences between these charges are mainly reflected in the behavior between actors and the differences in understanding of behavior, it is easier to grasp the differences between them by putting these charges together for comparative study. (A) the difference between theft and robbery

Article 264 of the Criminal Law stipulates that theft appears as a simple crime, and then the first paragraph and the first paragraph of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases clearly define theft: "According to Article 264 of the Criminal Law, stealing a large amount of public or private property secretly or stealing public or private property for many times for the purpose of illegal possession constitutes theft."

According to the provisions of the criminal law, the crime of looting refers to the act of openly seizing talents and materials with a large amount for the purpose of illegal possession without using coercive methods such as violence and coercion.

The essential difference between theft and robbery lies in the concealment and non-concealment of objective behavior. However, when we judge whether something is hidden, there are often two criteria. First of all, we should consider the range of hidden relative objects. For example, "this is our secret" is not the secret of the two of us, but the secret of people outside us. Second, we should consider the subjective consciousness of judging concealment. Such as "an open secret", the secret keeper continues to think it is a secret, because he doesn't realize that the secret has been known by everyone and is no longer a secret. Therefore, the standard of confidentiality has not been determined, what is "secret theft" and "public access" is still difficult to say, and the definition of theft and robbery is often difficult.

The author believes that the concealment of theft and the openness of robbery should be aimed at the property owner or custodian. For example, "stealing ear bells" constitutes theft. Another example is public pickpocketing. Although people around saw the theft of the perpetrator and the perpetrator realized it, they bet that no one would dare to take care of it as long as it was not discovered by the property owner. At this point, the perpetrator constitutes theft. On the contrary, if the perpetrator followed the victim to an empty lane, robbed the property in front of the victim and then fled, then the perpetrator constituted robbery. The author also believes that the concealment of theft and the openness of robbery should be the subjective judgment of the actor. That is to say, the actor thinks that the act of taking property has not been discovered by the victim, but the objective result has been discovered, which constitutes theft; If the perpetrator doesn't care whether the victim will find out his behavior of taking property, whether the victim objectively finds out his behavior or not, it constitutes robbery. If the perpetrator steals in the warehouse, he thinks that he has not been found, but in fact the warehouse has been monitored and he has been targeted by the security guards, which constitutes theft. For another example, the perpetrator took property in front of the victim, who happened to be blind and unaware of his behavior. At this point, the perpetrator has constituted robbery.

Therefore, summing up the difference between theft and robbery can be summarized as follows: the difference between theft and robbery is determined by their distinctiveness, concealment and openness. The concealment of theft means that the behavior of the actor is not discovered by the owner or custodian of the property when he thinks he is doing it, and the openness of robbery means whether the behavior of the actor will be discovered by the owner or custodian of the property when he doesn't care about the behavior. There are three points to pay attention to: first, the actor's mentality is concerned about whether the result will be found or not. The second is whether the knowledge of the actor will be discovered, and the subject of discovery is the property owner or custodian. Third, whether the actor's cognition will be discovered is only the judgment of the behavior process, regardless of the result after the behavior. For example, a long-distance passenger driver stops for lunch at noon. When all passengers just get off the bus, he will step on the gas pedal and drive away with the passenger's travel bag, which constitutes a crime of grabbing. If a driver steals a car while a passenger is eating in a restaurant, it constitutes theft. Because although both behaviors will be discovered soon, the former is obviously laissez-faire about whether the behavior will be discovered, while the latter obviously hopes that the behavior will not be discovered. (B) the difference between theft and fraud

The crime of fraud appears as a simple crime in criminal law. The theoretical circle generally defines the crime of fraud as: the crime of fraud, also known as fraud or fraud, refers to the act of defrauding others of their property or property interests by deception or fraudulent means, thus causing property losses to others. Theft and robbery are difficult to distinguish in some cases. Sometimes there is no obvious difference in the characteristics of the criminal's behavior means that constitute these two crimes respectively. Theft is often accompanied by fraud, because it can cover up theft and make it implemented smoothly. Fraud is also accompanied by concealment, because without concealment, fraud will be exposed and cannot be implemented. Therefore, theft and fraud often exist in a case, but we can't use some scholars' views to demonstrate which behavior is the main component of which crime. Because behavior cannot be quantified, and there is no set of feasible standards to judge how important an behavior is to a case, this statement is not feasible. In some countries, both of these acts are regarded as crimes, because they are extremely * * * in nature. We think there is an essential difference between theft and fraud. Judging whether it constitutes fraud mainly depends on whether the victim has made substantive behavior.

The crime of fraud requires several elements: 1, and the perpetrator used fraudulent means. 2. The victim has a wrong understanding. 3, the victim based on the wrong understanding of the implementation of property disposal. 4, the actor to obtain property benefits, and the amount is large. In the third point, the act of disposing of property is substantive, which is the key to distinguish fraud from theft. The specific explanation of punishment behavior is that the victim loses possession by disposing of property. There are two points to grasp here: first, the victim's punishment is intended to lose possession. Second, the property lost by the victim has been punished by the victim. If a customer tries on clothes in the store, after putting on clothes, the customer takes the opportunity to go to the toilet to escape. Although the clerk allowed the customer to leave temporarily with the clothes he tried on, it was not a punishment for losing possession of property, so it did not constitute fraud, but theft. For another example, when the customer picks up the goods in the warehouse, he secretly takes the goods that do not belong to him out of the warehouse in a box that arrives in advance. Here, although the warehouse keeper agreed that the customer would take out the box, he did not deal with the lost goods that the customer secretly put in the box, so it did not constitute fraud, but theft. Usually, disciplinary action takes the form of delivery, but in some cases, it also takes other forms. For example, in the case of "switching the bag", the perpetrator often wants to see the victim's property under some excuse, and then switches the bag after the property fights. It is not a disciplinary act for the victim to give property to the offender, because the offender has no intention of transferring possession at all. If the perpetrator hasn't started to cheat the victim, it can't be considered a crime after getting the property and before changing the bag. Therefore, the property struggle here is obviously not a feature of fraud. Only when the perpetrator exchanges the property and gives it to the victim as a fake can it constitute the crime of fraud. In this case, the crime of fraud is characterized by the actor's fraudulent means, which makes the victim mistakenly think that he will continue to possess the property when he actually loses possession of it. In fact, this situation also reflects the characteristics of "the victim lost possession because of the disposal of property", but the punishment behavior needs to be expanded and explained. The disciplinary action here not only refers to positive delivery behavior, but also includes negative inaction, that is, loss of possession.

After clarifying the difference between theft and fraud, let's review the jewelry case mentioned at the beginning. In this case, the customer can only constitute two crimes: one is fraud. If the salesperson gives it to the customer and the customer changes the jewelry, it constitutes fraud. As previously analyzed, he cannot constitute the crime of embezzlement, and has the characteristics of fraud, so it constitutes the crime of fraud. The other is theft. This is caused by customers taking out diamond rings at the counter and putting on fakes when the clerk leaves. Because in this case, the customer secretly transferred the possession of the property, and the salesperson did not punish the property, which did not constitute fraud but theft.

There is also a special case about the distinction between theft and fraud, which is also controversial. If the perpetrator steals the real estate license and then uses it together, what crime does it constitute? Generally, there are three kinds of conclusions: one is the crime of fraud, the other is the crime of theft, and the third is the implicated offender of theft and fraud. The author believes that it cannot constitute an implicated offense. The so-called implicated offender must commit several criminal acts for a criminal purpose, and there is an implicated relationship between the means and the purpose or between the cause and the result, and several crimes are committed respectively. Stealing the real estate license and then impersonating did commit two acts, and these two acts constituted two different charges respectively. However, the special feature of this kind of crime is that the two behaviors of the perpetrator infringe on the same object and the same object. Can it constitute an implicated offender in this case? In my opinion, it is impossible. Because if we think that stealing credit cards constitutes theft and infringes on the victim's property ownership, then taking property constitutes fraud and infringes on the victim's property ownership. Isn't that equivalent to infringing on the victim's property ownership twice in a row? This is obviously incorrect. So does this crime constitute theft or fraud? The author believes that according to the legislative intent of criminal law, it tends to be identified as theft. The third paragraph of Article 196 of the Criminal Law stipulates: "Whoever steals a credit card and uses it shall be punished in accordance with the provisions of Article 264 (Theft) of this Law." Moreover, Article 5 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases specifies in detail the calculation method of stolen securities and the amount of securities. Part of the determination of the amount is based on the actual income obtained by the actor after stealing the voucher, so this explanation actually acquiesces that stealing the property voucher and using it constitutes theft. The author believes that the main reasons for the theft are as follows: First, we should make clear the relationship between property documents and real estate. Real estate is usually occupied by the custodian, and the property owner realizes the ownership of the property through the property certificate. You can't look at vouchers and property in isolation, but judge whether vouchers have value. The legal possession of the property by the property custodian and the ownership of the certificate by the property owner constitute a whole ownership. Secondly, any kind of behavior that undermines the integrity of property ownership is an infringement of property ownership, that is, stealing property vouchers or stealing property is considered an infringement of the object of property ownership. Therefore, the theft of property certificates and their use violated property ownership from the beginning. Even if the property may be obtained by fraud later, it is only a continuation of the previous theft. Therefore, this kind of crime constitutes theft rather than fraud. Finally, this kind of crime should be distinguished from the crime of forging documents. If the perpetrator forges the certificate of the parcel stored in the bookstore and accepts other people's property, it constitutes fraud rather than theft.

Four. Conclusion To sum up, in order to distinguish theft, robbery, fraud and embezzlement, we must first study the relationship between the actor and property. If the actor occupies the property without using illegal means, it may constitute a crime of embezzlement, otherwise the possibility of embezzlement should be ruled out. Secondly, according to whether the objective aspect of the actor is "open", it can be judged whether it constitutes robbery. Finally, according to whether the perpetrator has made disciplinary actions, it can be distinguished whether the perpetrator constitutes fraud or theft. When distinguishing these crimes, we should pay attention to the essential characteristics of their behaviors and comprehensively consider some special circumstances.