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.”