In 2008, the famous "Liang Li Airport Case" happened in an airport in Guangdong Province caused great discussion, which led to the academic research and discussion on the behavior of finding lost property. Taking the controversial case of Liang Li as an example, this paper analyzes and discusses the behavior of finding lost property, and tries to analyze the criminal law evaluation boundary of finding lost property.
Key words:
catalogue
I.3
Two. Conceptual discrimination 3
(1) Definition of Lost Property ...
1. Concept definition ... 3
2. The difference between lost property and forgetting things ...
Three. The Act of Picking up Lost Property —— Taking the case of finding money in Liang Li Airport as an example ...
(1) Brief description of the case 6
(B) behavior analysis of lost property ...
1. Management behavior ... 6
2. Reward behavior ... 7
(3) The criminal law regulates the possession of lost property. ...
1. Subjective analysis of the possession behavior of lost property ... 8
2. Analysis of the objective aspects of the act of collecting lost property as your own. ...
3. The civil and criminal boundaries of the act of finding lost property as one's own. ...
4. Discrimination of the crime of finding lost property and taking it for yourself ...
Four. Conclusion ... 10
Reference ... 10
I. Introduction
(A) Research background and significance
The act of finding the lost property as one's own swayed with the wind on the dividing line between civil law and criminal law. The fundamental reason is to see whether the actor is intentional subjectively and whether there are other reasons for his behavior. This paper studies the criminal law identification of the act of finding lost property as one's own. In real life, it should be a moral obligation to pick up the lost property. If someone takes the lost property for himself, it will destroy social public order and good customs and personal and property safety, and affect the normal order of society. Lost property refers to the loss of control and possession of property intentionally or unintentionally, but not giving up ownership and other rights and interests. Therefore, the legal nature of lost property is the property with ownership. The ownership of the lost property belongs to the original owner until it is found. When the lost property is picked up by the finder, its ownership is temporarily pending, and the finder obtains possession, but does not obtain ownership. Only when the original owner gives up ownership or the law stipulates that no one claims it after a certain period of time can the finder become the owner of the lost property. The act of finding the lost property for one's own use refers to the fact that the finder refuses to return it to the original owner in the form of private possession, neither looking for the original owner to return it, nor taking the initiative to hand it over to the public management, but taking it for himself and using it. This kind of behavior is a deprivation attack that violates the basic principles of property ownership, infringes on the property rights of the original owner, and will have a very bad impact on society.
(B) Research status
1. Foreign experience and research status.
Abroad, the lost and found system has been extensively and deeply studied. Civil law countries, including Germany and Japan, have already established a relatively complete legal system, and Japan has even enacted a separate law to form the Japanese Lost Property Law, which includes the duty of the finder, the disposal measures, the fees and remuneration of the police chief, the ownership of the found property and the corresponding punishment. In the United States, a country with common law system, there has been corresponding research on lost property system since the early 1990s, including lost property, forgetting things, identification of lost property and concern for the protection of the rights of the finder. With the deepening of research and the establishment of lost property statutes in various countries, the research on the rights and obligations of the owner and the finder, the system of obtaining the ownership of lost property and the precedent tends to be systematic and comprehensive.
2. Domestic research status
Ma Ning believes that China has strict regulations on the necessary expenses for the management of the finder who has found the lost property, which actually causes some contradictions between the owner and the finder or increases the difficulty for the finder to return the lost property. In order to protect the owner's right to request return, we should make some loose provisions on the conditional return proposed by the finder in legislation. Zhao Xin speed skaters believe that under certain conditions, the owner's possession of the lost property should not be regarded as infringement. He Chen believes that the legal regulation of finding lost property involves moral evaluation and is inevitably influenced by social morality. However, combined with the related events outside China, there are still some shortcomings in China's relevant systems, which need to be further improved. Huang and Tang Lingyan believe that the relevant provisions of the Civil Code tend to be beneficial to the owner of the lost property, but the finder has not received reasonable protection, not just asking for compensation. The right of the finder to ask for the necessary expenses for keeping the lost property is also in an unattainable dilemma. The current law has too high moral requirements for the finder of the lost property, which is out of touch with social reality. Therefore, it is considered that the picker's right to claim compensation and the right to pay should be properly introduced. Lu Zhiyu believes that the relevant provisions in China's current civil code on finding lost property do not conform to the concept and original intention of the establishment of the civil code. Wu
2. Concept discrimination
(a) Definition of the concept of lost property
1. Concept definition
The legal nature of lost property has always been controversial in academic circles. On the one hand, some people claim that the lost property is ownerless, because the lost property owner has given up the possession and use right of the item; On the other hand, some people think that the lost property is not ownerless, because the parties have neither given it up intentionally nor given it to others explicitly. What is the legal nature of lost property? It needs to be judged according to the specific situation. According to China's Civil Code and related judicial interpretations, the legal nature of lost property should be recognized as ownerless property. Because, although the lost person did not explicitly give up the item, he has invisibly lost the possession and use right of the item. During this period, anyone can get the goods, but they must be reported and kept properly until the claimant appears. Since the lost property is ownerless, anyone can apply for the ownership of it, but it must meet the conditions stipulated by law.
So, what is the standard for being recognized as "lost property"? Generally speaking, the lost property should meet three conditions: first, the article must be ownerless, that is, the lost property owner has lost possession and use rights; Secondly, the loss of items is unintentional, and there is no act of giving items to others or giving them up at will; Third, the lost property should be property with independent use value, not items with no economic value such as sanitary garbage. In a word, the legal nature of lost property is ownerless property, but it needs to be judged in specific circumstances. In addition, when people find lost things, they also need to abide by the requirements of the law, report them in time and keep them properly to prevent losses to others. Wu sorted out unjust enrichment theory and cognizance theory through the analysis of taxi driver's handling of passenger forgetting things. Wang systematically expounded how to distinguish forgetting things from the lost property and the significance of distinguishing forgetting things from the lost property from the perspective of criminal law. Bai Langtao elaborated on the legal interests infringed by the crime of embezzlement. He believes that the legal interests infringed by the crime of embezzlement are actually the right to return the claim, not the ownership as thought by the non-mainstream view. This determination is related to the solution of problems such as payment for subsequent replacement reasons. Yu Bing and Yan Yingying discussed in detail the boundary between unjust enrichment and embezzlement through judicial cases.
2. The difference between lost property and forgetting things.
Literally, it seems that there is a good distinction between lost property and forgetting things. Lost property and forgetting things refer to people's lost or forgotten property respectively. Lost property refers to the property that people accidentally lose or forget, that is, the property that is out of control under the expression of the original owner's will, and the lost person is unaware of this process of losing control. For example, people lost their wallets, mobile phones, handbags and other items in public places. Forgetting things refers to a person who forgets his property through negligence or carelessness, but still wants to possess and dominate it. For example, in a hurry, I forgot to check the items I bought in the store, or left them in a public place but forgot to take them away. Although people forget the existence of property through negligence. For example, when passengers take a taxi, they put their carry-on luggage in the taxi and forget to bring it when they get off the bus. Legally, the ownership of lost property and forgetting things is handled in different ways. According to the civil code of our country, the person who finds the lost property needs to hand it in after safekeeping. If the owner does not appear within a certain period of time, the finder can apply for the ownership of the lost property. As for forgetting things, it is generally believed that the owner still has the right of possession, while others have no corresponding right of disposal and enjoyment. If someone finds forgetting things, they need to return it to the owner or report it to the relevant departments, waiting for the owner to claim it.
In overseas judicial practice, there are not many countries that distinguish lost property from forgetting things, but in the field of criminal law in China, theoretically distinguishing lost property from forgetting things is actually the embodiment of the modesty of criminal law-the use of "forgetting things" and the abandonment of "lost property" in civil law are the result of careful choice, indicating that legislators are unwilling to expand the scope of criminal attack. We think that forgetting things's possession and the possession of lost property reflect different social harmfulness. First of all, the degree of infringement of legal interests caused by the two is different. Whether it is the traditional theory, the possession theory or the restoration control theory, it all illustrates this point. The traditional theory distinguishes the owner, that is, the subjective memory of the original owner, the degree of separation and the length of separation, aiming at emphasizing the difference between forgetting and losing. That is, the former can remember where the things that have been recalled are, while the latter can't. The former has not completely lost its possessiveness, while the latter has completely lost its possessiveness. In the final analysis, it should emphasize the degree of control and dominance of the owner on the lost property and the possibility of the owner finding the lost property. The same is true of the theory of possession, which emphasizes that the basic distinguishing standard between forgetting things and the lost property lies in possession, that is, the former is that the thing is still occupied after leaving the original owner, and the latter is that the thing is unoccupied after leaving the original owner. There are also differences in the possibility of the owner finding the lost property in two different situations. Therefore, from this perspective, there is a difference between the act of encroaching on forgetting things and the act of encroaching on lost property, which has caused property losses or infringed on the legal interests of the owner. The former damages the property ownership of others, while the latter does not substantially increase the property loss of all people (because there is little chance for all people to regain their property). At the same time, on the occasion of occupying forgetting things, things are occupied by specific people in specific places, and the possessor often has the obligation to temporarily keep and keep things. The behavior of a specific possessor taking advantage of this possession advantage and specific identity to take things for himself also infringes on the public's social trust and violates the principle of social trust. Therefore, it is necessary and justified to replace punishment with punishment. Of course, the third person's behavior of taking possession of the thing possessed by the actual possessor is more harmful to society than the former, because the original possessor's loss of possession of the thing stems from the positive behavior intervention of the actor, which may constitute theft. Secondly, the social harm is also manifested in the subjective malignancy and personal danger of the actor. The subjective viciousness of the actor directly reflects his criminal intention and anti-social quality and personality, while the usurper's extremely selfish quality and personality determine the danger that he will continue to infringe on the extensive property of unspecified people. As for the act of taking possession of the lost property in an unoccupied state, that is, taking possession of the lost property, the subjective malignancy of the actor is not as good as that of the actor who takes possession of forgetting things. As a human being, he has no intention to deprive others of their property subjectively, but only takes things in the state of "not being possessed". The owner's ability to control the recovery of lost property is extremely poor, and his picking-up behavior has not significantly increased the adverse impact on the owner. We can hardly expect ordinary people to hand in their wallets truthfully or turn a blind eye. On the contrary, in the possession of forgetting things, the perpetrator knows that the property belongs to others, and others are likely to find it. The act of not returning it to oneself seriously hinders others from resuming the exercise of property rights, and the consequences are obvious. Therefore, there is a great difference between forgetting things's possession and the possession of lost property. The former is mostly based on the motivation of taking it for granted and coveting cheap, while the latter is often based on the firm intention of infringing on other people's property.
negotiorum gestio
Negotiorum gestio refers to an event in which the actor of negotiorum gestio takes care of the owner's property without agreement, and in the process, it generates certain storage expenses or causes certain damage to personal or property interests. The legal relationship between negotiorum gestio and the obligee arising from negotiorum gestio is called the debt of negotiorum gestio. In the relationship of negotiorum gestio, negotiorum gestio? There is a creditor's right relationship between people and property owners. For the necessary expenses or losses caused by negotiorum gestio, negotiorum gestio has the right to claim compensation from the property owner. The management without cause mentioned in this paper refers to the behavior that the lost property finder incurred management expenses or caused damage to interests due to the obligation of proper custody in civil law after picking up the lost property.
(3) unjust enrichment
Dangli
(4) Misappropriation of public funds
(5) theft
Third, the act of finding lost property, taking the case of finding gold at Liang Li Airport as an example.
In 2008, the famous "Liang Li Airport Case" happened in an airport in Guangdong Province, which caused great discussion, and thus triggered the academic research and discussion on the behavior of finding lost property. Taking the controversial case of Liang Li as an example, this paper analyzes and discusses the behavior of finding lost property, and tries to analyze the criminal law evaluation boundary of finding lost property.
(1) Brief description of the case
65438 At 8 o'clock on February 9, 2008, Wang, an employee of a jewelry company in Dongguan, was instructed by the check-in staff at Shenzhen Airport to check his luggage at another counter. Wang then left the counter and put a small carton in the luggage cart at the 1 beige line in front of the counter. On-site surveillance video shows that 33 seconds after Wang left, Liang Li, an airport cleaner, appeared beside the carton. About half a minute later, Liang Li moved the carton into a toilet at the airport. Wang returned about 4 minutes later and found that the carton was missing. He immediately alerted the public security organ. At about 9: 40 that day, Liang Li told his colleagues at breakfast that he had found a heavy cardboard box. Subsequently, two colleagues, Ma and Cao, opened the cartons and took away two packages of gold jewelry, one of which was half left. Cao told Liang Li about this discovery before coming off work. In order to confirm this statement, Liang Li specially asked another colleague Han to take a bag of jewelry to a nearby gold jewelry store for verification. Han came back and told Liang Li that the gold jewelry in the carton was the same as that in the store. /kloc-around 0/3: 40, after work, Liang Li took the cardboard box back to his residence, took out some gold jewelry from the cardboard box and put it in her husband's clothes pocket beside the bed, and put the cardboard box under the bed. /kloc-At about 0/6, my colleague found Liang Li, told the passengers that gold was lost at the airport, and called the police. Liang Li replied, "Tomorrow will be fine." At about 0: 00 on the same day/kloc-8: 00, the police found Liang Li's residence, took back the cardboard box and took Liang Li's family to the police station for investigation. In the end, the police recovered most of the gold jewelry, but there are still 136 grams of gold jewelry missing. After investigation, the box of gold weighs 14 kg and is worth 3 million yuan. Shenzhen Public Security Bureau transferred Liang Li to Shenzhen Procuratorate for examination and prosecution on suspicion of theft. The procuratorate finally refused to prosecute on the grounds of insufficient evidence, and the owner of the gold ornaments also said that they would not pursue it.
(B) behavior analysis of lost property
1. Management behavior
Negotiorum gestio is a concept of civil law. Although this paper analyzes the problem of partial return of lost property from the perspective of criminal law, it involves the boundary between acts that constitute civil legal relations and criminal acts, and involves the problem of storage expenses formed during the period of picking up lost property and keeping it on its behalf. That is, the management behavior without cause in civil law. The finder will collect the lost property of the owner, and there will be a certain lost property management fee while waiting for the owner. At this time, there is a debt of negotiorum gestio between the picker and the owner, and the owner shall be liable for compensation or compensation for the management fee or damage caused by the picker in the process of keeping the owner's articles. At this point, the finder's possession of the lost property constitutes possession. At this time, if the owner refuses to pay the expenses incurred by the finder's management behavior, it is obviously not suitable for criminal law to evaluate or regulate the finder's partial return of lost property. At this time, the two parties have a civil legal relationship based on creditor's rights. China's Civil Code also clearly stipulates that the owner should pay the finder the necessary expenses for keeping the lost property.
2. Reward behavior
The behavior of asking for reward can be divided into several situations: the cost recovery caused by management without cause, the reward request caused by the reward advertisement of the owner, and the demand behavior when the lost property is returned conditionally.
As mentioned above, if the finder has a creditor's right relationship with the owner based on the management without cause, the finder has the right to ask the owner for the expenses incurred in keeping the lost property. At this time, this behavior of asking for money should not be regarded as asking for remuneration, but as a kind of recovery.
According to the relevant provisions of the Civil Code, the owner has the right to demand money or remuneration from the owner when returning the lost property.
For the finder, conditionally returning the lost property to the owner is actually an act of embezzlement without constituting an act of negotiorum gestio and the owner has not promised to pay compensation in advance. The ownership of the lost property belongs to the owner, and the finder actually has no right to possess it. According to the provisions of the Civil Code, in this case, scavengers have no right to claim compensation from the owner. If the actor maintains this attitude of partial return under the premise of occupation, the behavior of scavengers should be evaluated at this time.
(3) Criminal law regulation of the act of encroaching on lost property.
1. Subjective analysis of the possession behavior of lost property
Picking up lost property refers to the act that public and private property is lost or left somewhere, and the picker takes the initiative to find and pick it up after realizing this situation. Compared with misappropriation or theft, picking up is a subjectively harmless behavior. However, when someone takes it for himself, that is, illegally occupies the lost property, it violates the law. Possession must be intentional. This means that the possessor must know that the picked-up items belong to others and have the intention of illegal possession. For example, if you find a mobile phone and a painting, if the person who took the mobile phone has left and others don't know who the owner of the painting is, then there is no intentional behavior of the person who found it at this time. Because he doesn't know whose this item belongs to. Finally, the time for your own behavior is limited. If the finder realizes that the lost property belongs to others, he should return it to the finder as soon as possible or take other effective measures, such as handing it over to the property management department. If the discoverer deliberately delays time and takes possession, this behavior is undoubtedly an obvious illegal act. Take Liang Li as an example. In fact, a series of behaviors after Liang Li found the gold can be regarded as his own behavior, but he obviously doesn't want to return it when dealing with the gold products. After learning that the owner reported to the police, Liang Li had the meaning of "returning it tomorrow", and could not think that she had the subjective will to return it, so she should still be regarded as a criminal act.
2. An objective analysis of the act of picking up the lost property as your own.
Subjectively, the act of possessing other people's goods needs to be intentional, but objectively, it should be taken for yourself. It has become a common illegal act to find lost things for your own use, which happens from time to time in daily life. In fact, it is not illegal to pick up the lost property, but it is illegal to take it for yourself. In this regard, people often have questions, what kind of picking behavior belongs to possession? Possession refers to the right to control and use things. Possession can be actual possession and legal possession. Actual possession refers to the actual control of the lost property by the finder, which has the physical control and utilization ability. Legal possession refers to the ability to control and dominate things under the law. Only actual possession and legal possession can be counted as their own. At the same time, the behavior that objectively constitutes possession is not necessarily directly held by the actor. In practice, we will encounter several situations:
After picking up someone else's lost property, the picker deliberately took it for himself, but it was inconvenient to carry it at that time, so he buried the lost property nearby and waited for a certain time to collect it. In this case, the actor did not directly take the lost property as his own, but it still belongs to the objective act of taking it as his own.
After the finder obtained the lost property, he did not fulfill the obligation of safekeeping, nor did he try to contact or find the owner. But to give the lost things to others or sell them. When the owner, that is, the property owner, claims to return or compensate him, the actor partially returns or compensates him, which can actually be regarded as an act of possession.
3. The civil and criminal boundaries of the act of finding lost property as one's own.
From the above discussion of the different behaviors of the picker, we can roughly draw the boundary between the civil punishment and punishment of the picker's possession of the lost property. That is to say, in this case, subjectively, there is no intention to refuse to return or possess, only to ask the owner for the storage fee or the reward promised by the owner based on the behavior of free management, or just to ask the donor for the reward and put forward the conditional return of the lost property out of the intention of asking for money, which is not enough to enter the scope of criminal law evaluation and discussion. Even if the finder asks for remuneration from the owner without causing negotiorum gestio, and the owner has no promise of remuneration, it also constitutes a crime of embezzlement, which is within the scope of criminal law evaluation within a certain amount, but it does not constitute a crime. The prerequisite for the actor to constitute a crime is that he has the intention of possessing it for himself and reaches a certain amount.
4. Discrimination of finding lost evidence as one's own crime.
Usually, we think that the act of picking up lost things for ourselves has the opportunity to commit two crimes-theft and embezzlement. In practice, the act of taking other people's things for yourself often causes controversy. Just like the case of Liang Li, Liang Li, an airport cleaner, found that passengers suspected of forgetting things for themselves at work constituted embezzlement, misappropriation or theft. This behavior seems difficult to determine. However, evaluating Liang Li's behavior is actually very simple. In fact, the passengers who lost their belongings in the Liang case only put their luggage into the luggage cart and went through the registration formalities at the temporary request of the airport staff. Liang Li occupies forgetting things, which doesn't even belong to passengers. As an airport worker, Liang Li should know something about passengers' usual behavior and habits, so it is basically impossible to misunderstand that this is something that passengers have lost and forgotten. In my opinion, Liang Li's behavior is quite typical, complete theft. In practice, there are some behaviors that are difficult to define because of finding lost things.
For example, another kind of lost and found behavior caused by duty is the property that passengers forget to take with them when they leave by taxi. We have discussed the relationship between lost and forgotten things. For the behavior regulated by criminal law, it is obviously due to the careful consideration of the criminal law evaluation of lost property behavior, and the shrinkage of lost property is interpreted as forgetting things. For taxi drivers, it may not constitute theft if they take the property that passengers forgot to take with them as their own. However, in the traditional taxi industry, taxis and rental companies still have an employment relationship, so during the taxi driver's work, the items on the taxi
Four. conclusion
Voice, 202 1 0,000 (010): pp. 62-63.