Can stealing your own property by mistake constitute theft?

● The criminal law has cracked down on the right holder's behavior of disposing of his own property, which violates the basic requirements of the Civil Criminal Law. The composition of theft is based on the premise of "a large amount", but if the theft is attempted, there is no way to determine the amount. To solve the dilemma of whether to punish attempted theft, we can only adopt enumerationism. ● Misunderstanding the object of stealing one's own property by mistake can be the reason to prevent the violation of the law, and its "decriminalization" is also the requirement of benefiting from criminal law. Case: Wang gave a banquet to celebrate his son's full moon, and all his colleagues came to join in the fun. They staggered into the night. Wang was drunk and sent his colleague Xiao Zhang out. Colleague Xiao Zhang found that the motorcycle he was riding was gone and could not be found anywhere. At this time, Wang saw several motorcycles beside him. After consulting with Xiao Zhang, I went home with tools. Together, they pried open the lock of a motorcycle, and Xiao Zhang rode away. The next day, Wang's younger brother found that Wang's motorcycle was lost and reported it to the public security organ. After investigation, Wang's motorcycle was stolen by Zhang the night before. Disagree: The first view is that Wang stole his motorcycle, which did not infringe on other people's property ownership and did not cause great harm to society, and did not constitute theft. Article 1 (4) of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases stipulates: "Whoever steals the property of his family or close relatives may generally not be treated as a crime; If criminal responsibility needs to be investigated, punishment should also be different from committing crimes in society. " The second view is that Wang's behavior in this case constitutes theft (attempted). The reasons are as follows: 1. In this case, Wang's behavior is socially harmful, which is obviously different from "stealing his own property or the property of a close relative". The act of "stealing property from one's own family or close relatives" refers to the act of stealing property on the premise of "knowing" that the stolen property belongs to one's own family or close relatives. Its subjective malignancy is small, and it is generally not treated as a crime. In this case, Wang did not "know" that the motorcycle was his own. Second, Wang's behavior in this case belongs to the misunderstanding of the criminal object in the criminal law, and does not affect the criminal responsibility of the perpetrator. In this case, Wang regards his motorcycle as someone else, which is a misunderstanding of the criminal object (motorcycle). This misunderstanding does not affect his behavior and constitutes theft. Third, in this case, Wang's behavior belongs to attempted theft (not attempted). Attempted crime can be divided into attempted crime and attempted crime. The so-called impossible attempt refers to the situation that the criminal has a wrong understanding of the relevant criminal facts, which makes the criminal act impossible to complete. In this case, Wang Cuo stole his motorcycle as someone else's motorcycle, and the purpose of the crime could not be achieved, that is, the attempted theft was established. To sum up, Wang's behavior under the explicit direct and intentional guidance in this case should be regarded as theft (attempted) because of his wrong understanding of the criminal object. (The case was provided by Liu Baoyan, the Procuratorate of tangyin county City, Henan Province) Many people think that the "object misunderstanding" similar to this case should be characterized as attempted theft. The author believes that this view does not conform to the criminal law theory and judicial interpretation. First, stealing one's own property by mistake should not infringe on ownership. According to the general theory of criminal law in China, the object of theft is the ownership of public and private property. All ownership is absolute and exclusive, excluding any other external illegal obstruction; On the other hand, ownership does not exclude the right holder's own "obstruction", because his own behavior cannot cause any meaningful obstruction to his own "ownership", whether legal or illegal, intentional or unintentional. In connection with this, an important development trend of modern criminal law is the continuous maturity of the concept of "civil criminal law", which requires that criminal law must reflect the values of civil society, and the absolute principle of ownership is the foundation of civil society. Criminal law violates the basic requirements of "civil criminal law" if it attacks the right holder's behavior of disposing of his own property, that is, it is blind and invalid, without justice and utility. Therefore, it is only a hypothesis that the actor infringes on his own property rights. At best, the object of theft can only be extended to "the property legally possessed by others belonging to the actor", but not to "one's own property" indefinitely. Even if there is misunderstanding, the actual direction of his behavior is still "his own property." Understanding the object of theft in this way conforms to the principle of modesty of criminal law and is also the inevitable requirement of modern civilized criminal law. Second, general attempted theft will not be punished. Many people think that stealing their own property by mistake under the wrong circumstances is an attempted theft. This statement can't see the particularity of theft in the form of crime cessation, which is really inappropriate. The establishment of theft is based on "a large amount". If the amount of theft is small or nothing is obtained, it does not constitute a crime and there is no room for attempted. But at the same time, theft is a consequential crime, that is, only when the perpetrator steals the property and the owner or custodian loses control can it be established. When the perpetrator has started to commit theft, but it has not been completed due to reasons other than will, it should be possible to establish an attempted crime in theory. This raises a dilemma: on the one hand, theft, as a consequential crime, has the possibility of establishing attempted crime; On the other hand, how to determine whether the items that may be stolen can reach the standard of "large amount" if the theft is not "successful"? The author believes that the dilemma of this kind of law application actually comes from the defects of our criminal legislation. On the issue of the scope of punishment for attempted crime, criminal legislation in various countries generally adopts three approaches: 1. generalization; 2. Enumeration; 3. Integration theory. Article 23 of China's criminal law clearly stipulates: "Attempted crime can be given a lighter or mitigated punishment compared with accomplished crime." It can be seen that China's criminal law has adopted "generalizism" in the scope of punishment for attempted crime, that is, all attempted crimes stipulated in the specific provisions should be punished in principle. We believe that the adoption of this legislative model has made a "one-size-fits-all" mistake in concept, and it is difficult to analyze specific issues; Legally, with the international criminal law gradually moving towards "decriminalization and non-penalization", this practice of punishing attempted misdemeanor has lost the support of justice dimension. In view of this shortcoming, 1997 Supreme Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases opened a small gap in the punishment mode for attempted offenders, and its first article stipulated that "attempted theft, if the circumstances are serious, should be convicted and punished for stealing huge amounts of property or national precious cultural relics". The implication is that only attempted theft that meets the "serious circumstances" will be punished. Article 6 further explains the meaning of "serious circumstances", such as ringleaders of criminal groups, theft of financial institutions, serious crimes caused by escape, recidivism, aggravated consequences such as death and mental disorder of the victim, and serious consequences of stealing specific funds and materials. The contents of these two provisions show that we are beginning to realize the disadvantages of generalizing. In fact, we have fine-tuned the "generalized punishment doctrine" in the general principles of criminal law, and started to adopt enumerationism in the punishment of attempted theft to avoid overkill. This is a wise and meaningful choice: criminal law can be put away as a "double-edged sword" for general attempted theft. Laws must meet the needs of society, otherwise they will become a dead letter. Third, factual mistakes can prevent breaking the law. Misunderstanding of facts refers to the actor's incorrect understanding of the facts related to his own behavior. It can be roughly divided into three categories: 1. Positive error, that is, the criminal fact does not exist originally, but the perpetrator mistakenly thinks it exists. 2. Negative error, that is, although the criminal facts exist, the perpetrator mistakenly believes that they do not exist. 3. The actor admits the criminal fact, but mistook it for other criminal facts. This problem is related to whether the intention of the act is prevented and the criminal responsibility of the actor is reduced. As the ancient Roman proverb said, legal mistakes are not allowed, but factual mistakes are allowed. When there is a mistake in understanding the facts, the behavior has a certain degree of forgiveness, and criminal responsibility should be reduced or exempted. Even in modern times, this concept highlights its importance and becomes an important embodiment of the fairness and modesty of criminal law. We believe that the misunderstanding of stealing one's own property by mistake should be a positive mistake, that is, taking the nonexistent "stolen" property as reality. Obviously, this kind of behavior does not have any realistic social harm, nor does it have a substantive basis for criminal responsibility. Some scholars in Taiwan Province Province believe that this behavior is illegal only if it infringes on the legitimate interests of the group, which can be used for reference. The principle of "factual error to prevent violation of law" emphasizes the important role of the subjective understanding of the actor in distinguishing crime from non-crime, this crime from that crime, which makes the criminal law more humanized and becomes a powerful symbol of the maturity and completeness of a country's criminal law, which should be paid enough attention to. According to this principle, if the actor mistakenly takes his own things, it will hinder the violation of the law and should not be considered as a crime. Fourthly, the operation of modern criminal law needs to pay attention to the comprehensive establishment of interest market economy, which makes it necessary for us to make an economic analysis of criminal law. In recent years, the absolute number of crimes in China has been increasing, and the criminal resources that the state can invest are always limited. The criminal law operation system with high input and low output will not provide reliable guarantee for economic and social development. Therefore, our evaluation of criminal law is no longer limited to the dispute between good and evil, but has a new standard: whether it is beneficial or not. The author believes that punishing the behavior of stealing one's own property by mistake will only increase the cost of criminal law and the cost of realization. 1. From the unity of subject and object, the social harm of stealing one's own property by mistake is not very serious, and there are no real victims. Western countries and Taiwan Province Province are trying to legalize this victimless crime. To punish such behavior, there is neither the victim's "revenge" mood to satisfy nor the broken social order to restore. If it is only for the purpose of crime prevention and suspects that the perpetrator is only a means to achieve the goal, then it will be despised by the human rights criminal law. 2. Criminal litigation activities must conform to the principle of litigation economy, especially in the case of little interest in criminal litigation, procedural economy should be given priority. The act of stealing one's own property by mistake, because there is no relevant victim, it will be very difficult to investigate and collect evidence. This is our nature, criminals who escape punishment. From both substantive and procedural aspects, it can be seen that it is uneconomical to punish the behavior of stealing one's own property by mistake, which can only make the application benefit of criminal law lower. In fact, the necessity of criminal intervention is first unified with the economic growth and legal education level of the whole society. At present, the rapid economic development in China has greatly enhanced the mobility of property and provided more opportunities for theft. Major cases emerge one after another. In fact, the state has no energy to punish minor acts of stealing its own property by mistake. Readers can participate in the discussion if they have different opinions. )