When Xiao Ma, a freshman in Xi’an, went through the security check at Xi’an North Railway Station, she found her new mobile phone was missing. The police found through surveillance that the man behind Xiao Ma picked up the phone and left. The man involved in the incident, Wei, refused to answer the phone and refused to return, and was eventually arrested. Wei’s behavior has constituted a crime of theft and will be detained under criminal law.

Let me start with the conclusion: From the monitoring point of view, the characterization of this case is very accurate. 1. The mobile phone is not a lost item in this case. There are several answers that the mobile phone is a lost item, which is obviously a misunderstanding of “lost item” in the legal sense, and the “lost” in daily life is taken for granted and directly used in the law. In this case, when the mobile phone was just dropped, the woman had not been far away, and there was a greater chance that the mobile phone could be retrieved in time. The control of the mobile phone was not completely lost, and the mobile phone was not a lost property by law. The man actively used peaceful means to completely separate the mobile phone from the possession of the possessor, which was considered theft. 2. Because the man clearly saw the whole process of the phone falling, he cannot evaluate the state of the phone from the perspective of an objective third person. If a mobile phone on the ground is found in a public place, then from the perspective of an objective third person, the mobile phone should be a lost property in general concepts, and the act of taking the mobile phone is a lost property found. Even if the woman is not far away, it cannot be determined that the man’s actions constitute theft. Here you can refer to the prosecution’s determination of the Shenzhen Airport gold theft case. However, in this case, the man clearly saw the entire process of the phone falling and the location of the woman, and had a clear understanding of the actual state of the phone, so he could no longer view the nature of the phone according to the perception of an objective third person, so It can only constitute theft and not the stolen property. In addition, the mobile phone cannot be transferred to the station’s possession, so the man’s behavior only infringed on the woman’s possession, not the station’s possession. There is a saying that the mobile phone is transferred to the legal possession of the space manager after the owner has lost it. This understanding is biased. The possession of the lost property by the space manager depends on whether it is actually possible for the space manager to control or manage the lost property. For example, in a restaurant that has just opened and there are few guests, the victim forgot his mobile phone at the dinner table and left, because the mobility of personnel is not strong and the space is relatively closed, then it can be considered that the mobile phone was transferred to the hotel by the victim. If another guest takes the mobile phone away at this time, it will infringe on the hotel’s possession of the mobile phone and constitute a crime of theft. And if there are many guests in the hotel, the staff is mobile, and the waiters are overwhelmed, and it is impossible to actually control or manage the mobile phones that the guests have forgotten, then taking the mobile phone away at this time should not be considered as an infringement of the hotel’s possession of the mobile phone. It can only be regarded as Found the lost property. In the same way, in stations, public roads, shopping malls, and amusement parks in normal time periods, it is generally not considered that the lost items are directly transferred to the actual possession of the space manager. In daily life, it is not uncommon for this kind of love to take advantage of it and to think that oneself has no legal responsibility and regret it. I once had a case in which a man connected his mobile phone to a charging socket on a convenient charging station to charge, and he sat under the charging station to rest. At the same time, there are people standing in front of the charging station to charge. Forty minutes later, when the man got up, he noticed that the phone was unplugged, so he immediately called the police. After I went to the scene to inquire about the situation, my colleague also called out the surveillance during the incident at the police station, and found that a woman unplugged the man’s cell phone after charging her cell phone. Searching according to the characteristics of the video, I found the woman who was chatting with her companion less than ten meters away from the scene of the incident. After I asked, the woman immediately admitted that she took the man’s phone and took it out of her bag. When the woman thought I would praise her, I told her that because she was suspected of theft, I would orally summon her to the public security agency for investigation in accordance with the provisions of the Criminal Procedure Law, and handcuffed her. From an ordinary person ten seconds ago to a suspect who was captured by the public security organs, the woman’s expression went from dazed to panicked to crying in a few seconds. She and her husband begged me and the victim to give her. a chance. But the law is the law, how can there be so many opportunities. The woman’s behavior not only constitutes the completion of the theft, but also cannot be counted as being from the capital. It can only constitute two lighter sentences of confession and voluntary return of the stolen goods. So here comes the problem. How can we correctly analyze this situation so that we can not only pick up things but also avoid jail time altogether? Either carefully study Zhang Mingkai’s “Science of Criminal Law” and work hard to pass the law test. After the incident, I met the public prosecutors and law case handlers who had also just passed the legal examination to ensure that their actions would never constitute the crime of theft or embezzlement. Of course, it is best to entrust me as your defender in time. Or always keep in mind the words taught by the kindergarten teacher: “The rooster calls the hen, and you can’t ask for other people’s things. Keep your own things.”


By stockin

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7 months ago

This is a typical exam question. There are four answer choices. The answer is (A) A, theft B, unjust enrichment C, no cause management, D, embezzlement. It should be said that this question is not difficult and belongs to the sub-question. As long as the subjective and objective behaviors of this man are analyzed to determine which part of the case is stealing and picking up, and then the four options are eliminated one by one, the correct answer can be obtained. Theft belongs to the act of stealing public and private property for the purpose of illegal possession; improper gain means gaining profit without damage to others based on others; uncaused management means management for the benefit of others without entrustment; misappropriation belongs to illegal purposes and loss of others The act of refusal to return the property. From the above concept, theft and embezzlement are very similar. If you don’t pay attention, you may choose D and cause mistakes. Combining this case, we must first see whether the mobile phone has become a lost or unowned item, and whether it has been out of the effective control range of the owner. In the specific environment of this case, the effective range of the owner and the mobile phone cannot reach the range that has been out of control, and the person who finds the mobile phone can completely return the owner and should also know who the owner is. The way of possession, this behavior has constituted theft rather than the ownerless. In fact, it is very simple to define a lost item, that is, it has been completely out of the effective control range of the original owner and was lost or forgotten by the original owner unconsciously, and has nothing to do with the behavior of the third party.

7 months ago

This question is very basic…Objectively, the separation of the mobile phone from the original owner is very short, and everyone still owns the mobile phone. Even if you take a step back and think that everyone has lost possession, the mobile phone is taken over by the person in charge of the security check because of the special occasion of the security check. Subjectively, the perpetrator clearly knew or should have known that the mobile phone was possessed by other people, and there is no reason to mistake high-value items as abandoned or unowned at the security check. The unity of subjective and objective is obviously the crime of theft. After contacting him, he refused to return it. Strictly speaking, it was unnecessary. This is aimed at the constitutive elements of the crime of embezzlement, but the perpetrator’s behavior was theft rather than embezzlement. Therefore, theoretically, even if the police contacted and returned it immediately, they should be held accountable for the crime of theft. To put it another way, if the mobile phone is lost in a train station where people come and go, instead of going through the security check, and the perpetrator does not see when the mobile phone was discarded, then the mobile phone can be deemed to have lost possession. , And there is no new possessor to take over the possession, so the behavioral talent belongs to picking up the lost property, and the possible responsibility is the unjust enrichment in the civil law and the crime of embezzlement in the criminal law. Let’s change it again. If the situation where the mobile phone is lost is determined to be in a small area controlled by someone, such as in the driver’s taxi, then the mobile phone is in the driver’s possession (even if the driver does not notice the mobile phone), and the new passenger invades The possession of the driver also constitutes the crime of theft. This will not open the push.

7 months ago

I will do this! The conclusion is theft! The reason is as follows: To judge whether it is theft or embezzlement, we must start from the two elements of the crime. Let’s talk about embezzlement first. In simple terms, embezzlement means that what is owned by others and you own becomes your own. Theft is the transfer of the possession of others to one’s own possession. Here we are going to talk about how to count as possession. In layman’s terms, possession means having control over things, and invading and possessing an object is forgotten. But there is one exception, that is, when the property is under the control of the owner, even if the owner temporarily forgets it, it is still regarded as in possession of the owner. If it violates the possession of others, it is not embezzlement. The prerequisite for embezzlement is that one has already possessed and returned the property. In the situation here, the owner is obviously not out of possession. To give another example: taxi driver Zhang San saw that passenger Li Si dropped his mobile phone on the car when he got out of the car, and did not make a sound. As soon as Li Si got out of the car, he remembered that the mobile phone was in the car. Because when Li Si got out of the car, the mobile phone was still under his control, even if Li Si temporarily forgot it, it was still regarded as Li Si in possession. Zhang San constituted the crime of theft, not the crime of embezzlement. After the analysis is over, I can’t help but complain about people who refuse to return the phone!

7 months ago

When I was still in school a few years ago, I also picked up a mobile phone, not Apple, but Huawei before taking off. I took the mobile phone as my own almost without hesitation. I was so proficient in my actions that afterwards, I was surprised that I could forget the morality and shame in an instant. There were still a few classmates present. After this incident, I don’t know what they think of me. In short, I despise myself very much. For every mobile phone I have used before, I can almost clearly think of their model and experience. Only this one has a wrong background, except for the vague impression of “White Huawei”, I can hardly remember anything. Probably it was because I subconsciously felt that this incident was too ashamed, and then quietly deleted the memory. Soon afterwards, my dad asked someone to write a few calligraphy and paintings for the family. One of the Zhaolie Emperor’s “Don’t do small things with evil, don’t do small things with good ones” happened to be hung in my room. In the dead of night, I reflected on this character for a long time. That was the first time I realized my mistakes from the depths of my mind, how shameful my actions were, and how important it is to improve my moral quality. After that, I took this sentence as my motto, always alert myself, and since then I have never done anything to take advantage of others. The only comfort in the whole thing is that I have done something wrong and know the shame and reflection, which also contributed to my reflection and transformation. In this news, picking up other people’s property and refusing to return it is of course a crime, and the criminal punishment is not unjust at all. I hope he can recognize and reflect on his mistakes after accepting legal sanctions. “Don’t take evil for small things, don’t take good things for nothing.” If he has a chance to see this problem, I want to give him my motto. Being a good person is very important in life.

7 months ago

The police are beginning to talk about the unification of subjectivity and objectiveness, and the concept of the legal system is progressing. I didn’t want to answer at first, but I saw someone say that this matter constitutes a crime of embezzlement, so let’s also talk about it. 1. Listen to a story first. In 2008, the cleaning staff Liang Mou was cleaning at the airport and saw a luggage cart among two female passengers near the trash can with a small cardboard box on it. Five or six minutes later, two female passengers hurriedly ran into the security gate. Liang saw the small cardboard box still in the luggage cart and thought they had discarded it. I looked left and right to see that there was no one, and then I took the small cardboard boxes as waste and cleared them into the garbage truck. Liang told a colleague that she found a small cardboard box and returned it to others if someone claimed it. When she told another colleague, the colleague went to the bathroom with her, opened the carton and found that there was a bag of gold jewelry inside, and the two took out the gold and halved it and left. On the same day, a man reported the crime. I put a small cardboard box containing 14 kilograms of gold jewelry on the luggage cart, and went to the counter not far away to consult. After about 10 minutes, he returned to the original place and found that the carton was missing. This case aroused the attention of the media and scholars, and aroused very heated discussions. Some scholars believe that it constitutes a crime of embezzlement, because what Liang found was a forgotten object. Some scholars also believe that he was theft, he obtained it secretly, and the carton was within the control of the owner. Some people think that this does not constitute a crime, it is just a petty gain, at best it constitutes unjust enrichment, and civil litigation can be resolved. It is said that the act of picking up gold is condemned by morality and conscience at most. The police detained Liang as a crime of theft. In the end, the police recovered 3 million worth of gold jewelry, and 136.49 grams of gold went missing. When the case came to the procuratorate, the procuratorate believed that although the case had the characteristics of theft, the evidence constituting the crime of theft was insufficient, and it was more in line with the characteristics of the crime of embezzlement. According to the principle of “criminal prosecution only minor”, it would be beneficial to the suspect Liang. From a perspective, the procuratorate believes that Liang does not constitute a crime of theft, but constitutes a crime of embezzlement. 2. What is the crime of embezzlement? In accordance with Article 270 of the “Criminal Law”, those who illegally occupy the property of others in their custody as one’s own, and the amount is relatively large, and if they refuse to return it, they shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or fine; the amount is huge or there are other serious circumstances , Sentenced to fixed-term imprisonment of not less than two years but not more than five years, and fined. Those who illegally occupy other people’s forgotten or buried objects as one’s own and refuse to hand it over in a large amount shall be punished in accordance with the provisions of the preceding paragraph. This crime shall be dealt with only when told. We can draw two pieces of information from the above. 1. The crime of embezzlement is a crime of private prosecution, and the victim does not tell the court not to deal with it. 2. The embezzlement of the crime of embezzlement only covers three types of objects: lost objects, safekeeping objects, and buried objects. At that time, the procuratorate considered this case to be a crime of embezzlement and a private prosecution, that is, not to file a complaint or to file a public prosecution. Therefore, the procuratorate returned the case to the public security organ and suggested that the police hand over the evidence to the owner of the private prosecutor. And the chairman of the gold company, the owner of the gold, responded that they never thought about who should be held accountable, because the prosecutor’s office considered this to be a private prosecution case, and the private prosecutor did not hold it accountable, so there was no risk of being held accountable for the crime of embezzlement. Liang is completely free. However, in our opinion today, there is no dispute between the academic and practical circles: Liang’s behavior indeed constitutes the crime of theft. This kind of case, because the amount involved is relatively large, may be sentenced to life imprisonment. The circumstances are special and you can do it. Sentencing below the sentence. This is the famous “Liang Li Gold Collecting Case” in the criminal law circle. 3. Returning to this case, someone will refute it like this. If the man gives the phone to the woman, it is called collecting money, so this phone should be called a lost property. When the man who was not found the cellphone, the cellphone and the woman (owner) were very close, so the law considered it was still in possession of the woman. The moment the man picked up the cellphone and put it in his pocket, he transferred the possession of the cellphone. He should know that the mobile phone belongs to the passenger in front, even if he does not know, he should know that the mobile phone is not his own, so it is necessary to hand it over to the on-site manager (the subway staff or the police). But he did not. At this moment, the purpose of his illegal possession can be inferred. Rather than waiting for the police to ask, refuse to return to determine the illegal possession, this is the subjective psychology afterwards, not the subjective psychology when committing the crime. Objectively speaking: a man transfers a woman’s mobile phone to his possession in a peaceful way. Subjectively: the purpose of illegal possession. Excluding the subjective and objective liability to prevent the cause constitutes the crime of theft. “Criminal Law” Article 264 Whoever steals public or private property in a relatively large amount, or who steals, enters the house, theft with a lethal weapon, or pickpocketing is to be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance, concurrently or solely Fines; if the amount is huge or there are other serious circumstances, they shall be sentenced to three to ten years imprisonment and a fine; if the amount is particularly huge or there are other particularly serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and a fine Or confiscate property. Thirteen years have passed. The case of that year was mistaken, and the case of today should be rectified. The judiciary is progressing, and we are witnessing it together.

7 months ago

The man’s behavior has indeed constituted the crime of theft. The criteria for judging lost property should be based on general social concepts and specific circumstances to examine whether the original possessor has the possibility of actually controlling the property. The temporary loss of possession of the object does not constitute loss. Obviously, according to this standard: 1. The baggage security checkpoint is monitored, which clearly records the process of girls losing their mobile phones, and the girls can control the recovery of their mobile phones; 2. The man followed the girl behind the security check and witnessed the process of the girl’s mobile phone falling down. When picking up the mobile phone, the girl and the mobile phone were still inside the station, not far away, and did not lose control of the mobile phone; 3. It is a citizen’s moral obligation and legal obligation to collect money, and the man should return the picked up mobile phone immediately; therefore, the man is in When the phone is picked up, it cannot be counted as a lost item. After picking up the phone, the man obviously made a concealed action and quickly left the station. The purpose of using the phone as his own was obvious. Even though the girl had already called the police and communicated with the police, he still refused to return the phone. . Therefore, the man was guilty of stealing the mobile phone for the purpose of illegal possession, and the girl was convicted of stealing the mobile phone without losing control of the mobile phone possession.

7 months ago

Let me talk about the conclusion first, which constitutes the crime of theft. The suspect saw the victim’s mobile phone dropped from his pocket and picked it up and refused to return it. After the victim lost his mobile phone and found no results, he asked the police for help. It has not completely lost control of the mobile phone, and the mobile phone is still within its control range. The suspect knew that the mobile phone was the victim’s property, subjectively aimed at illegal possession, and objectively took the method of secret theft (after picking it up without telling the owner and not returning it), his behavior was fully in line with the criminal constitution of the crime of theft.

7 months ago

Without surveillance or other evidence, it is likely to be a crime of embezzlement! Wrangling a lawsuit. The monitoring ➕ not answering the phone ➕ the police intervened and was smart, rewarding a pair of silver bracelets, and also sending the distribution chain, which is a bit short. However, as a digression, individual people don’t know what’s wrong now, whether it’s emotional problems, mental health, or family education that has developed by leaps and bounds. I pick up things and send them back, give up my seat, help others to support the door, help others to lift things up… The one who didn’t say a word and gave a slight expression. It makes me pick up the items directly to the lost and found office, too lazy to worry about whether you missed the plane, it is convenient and inconvenient to come back and find it? Since others don’t deserve to do good things for you, it’s not your turn to think so much for you, right?

7 months ago

Not injustice at all, greedy for cheap and ignorant and fearless. As long as the police take the initiative to return the phone after making a phone call, they may not end up in criminal detention. It’s not that if you “pick up” something, it won’t be called stealing. The key depends on whether the item is out of control and certain space when you “pick up” it. For example, if you drink milk tea in a milk tea shop and see a mobile phone on the table, you want to “pick it up” and claim it for yourself. This is theft. For example, if you sit in a taxi and see a mobile phone in the front passenger seat, you want to “pick it up” and use it as your own. This is also theft. This is just stealing without telling it, and those who are greedy for petty gains lose freedom.

7 months ago

I know that some people may not understand the high praise answer. In fact, legal questions are the simplest empirical questions at the root, and most people in society can judge them based on their simple values. This is actually a typical public theft. Theft is actually the use of peaceful means to transfer the possession or possession of others to one’s own possession. The old theory believes that it needs to be secret, but if it is a case of public theft, it cannot be evaluated. For example, a person fell down on the road, the ring flew to the side, and a person took the opportunity to pick it up and walk away. If you think that theft is secret, this behavior cannot be evaluated as theft, because you can’t say that it is secret on the road. But the transfer of the finances held by others is not theft, then you are robbery, but the robbery cannot evaluate this behavior. So theft does not actually require secrecy. Theft can also be public. In this case, a new mobile phone was found, but the call was refused to be returned. In fact, it is the distinction between the crime of embezzlement and the crime of theft. Even if the person is not enough for the crime of theft, it will constitute the crime of embezzlement. The difference between the two is that theft is the transfer of the property possessed by others to one’s own possession, and the embezzlement is the possession of one’s own, but not own property, and becomes one’s own. So the key lies in whether everyone has possession of this property. The state of possession is understandable by everyone and can be judged by your simple values. Example 1. The bride gets married and gives the ring to the bridesmaid for safekeeping, and waits for the wedding to begin. The bridesmaid left with the taxi ring at this time, which is a theft. Because during this period of the wedding, no matter who the ring is at the wedding, the ring is actually under the control of the bride. This is the transfer of what is owned and possessed by others to one’s own possession. It is fully in line with the behavioral state of theft. 2. The bride gives the ring to the bridesmaid and waits for the wedding to start tomorrow. After the bridesmaid took home at night, she felt greedy and left by train overnight. This is embezzlement. Because in the bridesmaid’s house, the ring has been out of the controllable range of the bride. Although the ring is owned by the bride at this time, the bridesmaid is the one who actually possesses it. If you want to take the possessions of others as your own, it is embezzlement. Through the above two examples, you can understand this case very well. Although the mobile phone was dropped in a public place like the subway, everyone did not leave too long or too far, and the mobile phone was still in everyone’s possession. Taking the mobile phone away at this time meant transferring the possessions of others to their own possession. . If the perpetrator gets on the subway and takes the mobile phone at this time, it should be considered that everyone is out of the scope of possession. Taking it away at this time is not theft, but it is not embezzlement. If someone asks you to return it, you don’t return it. At this time, the mobile phone is not yours, but you actually own it. If you don’t return it, you just want to destroy the ownership of others and transfer it to your own, which is an embezzlement. I also scratched my head on this problem before and listened to a lot of teachers’ lessons, but in the end it was Baishen’s lesson, and I got through it all at once.

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