Provisions of the Civil Code on the collection of lost property

The concept of picking up a lost object

The retrieval of lost property refers to the legal facts of possession of another person's lost property. The recovery of lost property is a factual act, and there is no distinction between whether the person who found it has the capacity for civil conduct or not. The collection of lost property is a common phenomenon in life, and the Civil Code of the People's Republic of China makes detailed provisions on the collection of lost property.

Article 312 The owner or other right holder has the right to recover lost property. If the lost property is in the possession of another person through transfer, the right holder has the right to claim damages from the person without the right to dispose of it, or to request the return of the original property from the transferee within two years from the date on which it knew or should have known of the transferee; however, if the transferee purchased the lost property through auction or from a business operator with business qualifications, the right holder shall pay the fees paid by the transferee when requesting the return of the original property. After the right holder pays the fees paid to the transferee, it has the right to recover from the person without the right to dispose of it.

Article 314 Where lost property is found, it shall be returned to the right holder. The person who picks it up shall promptly notify the right holder to collect it, or send it to the public security and other relevant departments.

Article 315:Where relevant departments receive lost property and know the right holder, they shall promptly notify them to collect them; if they do not know, they shall promptly issue a notice of solicitation.

Article 316 Before the finder sends the lost property to the relevant department, the relevant department shall properly take custody of the lost property before it is collected. Where intentional or gross negligence causes damage or loss of lost property, civil liability shall be borne.

Article 317 When the right holder collects the lost property, he shall pay the necessary expenses for the custody of the lost property or other expenses to the finder or the relevant department.

Where the right holder offers a reward for the search for lost property, it shall perform its obligations in accordance with the commitment when collecting the lost property.

If the finder encroaches on the lost property, he has no right to request the custody of the lost property and other expenses, nor does he have the right to request the right holder to perform its obligations in accordance with the commitment.

Article 318 Where lost property is unclaimed within one year from the date of publication of the announcement of recruitment, it shall be owned by the State.

Article 319 Where drifting objects are found, buried objects or hidden objects are found, the relevant provisions on the recovery of lost objects shall apply by reference. Where the law provides otherwise, follow those provisions.

Identification of lost property

Lost property is an item over which the owner or possessor of movable property has lost control of it out of his or her will.

Elements of lost property:

1. In movable property with ownership, the lost property cannot be unowned.

2. The owner actually loses possession.

3. Unoccupied. The object is not in the possession of anyone.

Elements of forgotten Objects:

1. There is the lord's movable property. This element is the same as lost.

2. Forgotten property is movable property forgotten somewhere by the possessor. For example, a handbag that is forgotten in a hotel, a wallet that is forgotten in a hotel, etc.

3. Loss of possession due to the negligence of the possessor.

4. It must be in possession. After the original possessor has forgotten the object somewhere due to the negligence of the original possessor, the original possessor has lost possession of the object, and the forgotten object is still in a state of human possession. The actual occupant of the property is the actual controller of the unforgotten land (taxi driver, hotel manager, restaurant manager, etc.). Whether or not the actual possessor knows that the thing is under his or her possessive control they are the possessors of the forgotten thing.

Legal significance of lost and forgotten objects:

1. The finder of the lost property shall have the right to claim custody fees.

Article 317 of the Civil Code states that "when the right holder collects the lost property, it shall pay the necessary expenses for the custody of the lost property to the finder or the relevant department."

If the finder encroaches on the lost property, he has no right to request the custody of the lost property and other expenses, nor does he have the right to request the right holder to perform its obligations in accordance with the commitment. "This provision of the Civil Code adequately increases the likelihood that the owner of a lost property may recover the lost property. If the finder is not given the right to claim custody fees, the result of the lack of return for custody is that people simply do not pick it up, which will make it more difficult for the lost person to retrieve the lost property, and the value of the lost property will soon be lost if no one picks it up and keeps it.

2. The person who picks up or finds the forgotten object shall not have the right to claim remuneration.

Forgotten objects should belong to the category of ancillary obligations, and the reason why forgotten objects are forgotten things is because the place of forgetting is the actual controller, and the things still belong to the state of being occupied. The management of the forgotten by the actual possessor (taxi driver, hotel manager, restaurant manager, etc.) shall be the fulfillment of ancillary obligations.

Ancillary Obligations - There is no explicit provision in the law, and there is no explicit agreement between the parties, but in order to safeguard the interests of the other party and according to the general concept of transactions in society, the parties should bear the obligations.

3. The legal consequences for the failure of the picker to perform his obligations are different.

Oblivion:

Article 270 of the Criminal Law Whoever illegally occupies the property of another person in custody for himself, and refuses to return the amount of money, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine;

Whoever illegally occupies another person's forgotten or buried property for himself, and the amount is relatively large, and refuses to hand them over, shall be punished in accordance with the provisions of the preceding paragraph.

This crime shall be dealt with only if it is told.

Lost Property:

Article 317 of the Civil Code Article 3 Where the picker encroaches on the lost property, he shall not have the right to request the custody of the lost property and other expenses, nor shall he have the right to request the right holder to perform its obligations in accordance with the commitment.

Claim for return of lost property

China's Civil Code basically follows the provisions of Article 107 of the Property Law, which clarifies that the owner and other right holders have the right to recover lost property, indicating that China's property rights legal system is more inclined to the protection of ownership, and this provision also reflects the virtue of traditional Chinese culture of collecting gold. According to legal theory, the loss of an item does not necessarily lead to a change in property rights. Although the owner loses possession of the property, in principle, it does not lose ownership. Based on the ergodic and retroactive effect of ownership, the owner may claim the right to return the property from the counterparty in respect of the lost property. The subject of the right to enjoy and exercise this claim in respect of lost property can only be the owner of the lost property (the person in possession of the lost property cannot claim return on the basis of the claim), and the counterpart to the claim should be the person without the right to possess the lost property, which in principle may include the person who picked up the lost property and the third person in possession of the lost property.

At the same time, according to the provisions of 312 of the Civil Code, other rights holders may exercise the right to return lost property in accordance with their legal rights relationship and the legal possession relationship of the property, and the rights here may be other property rights, such as movable property pledges and liens. It can also be a contractual relationship in which there is a subject matter in lawful possession, such as the custodian who claims to return the lost property after the loss of the items in his custody.

Obligations of the person who picked up lost property

1. Obligation to notify and obligation to return:

Article 314 of the Civil Code: Lost property shall be returned to the right holder. The person who picks it up shall promptly notify the right holder to collect it, or send it to the public security and other relevant departments.

This article sets out the obligations of the person who found the lost property and adds a basis for the owner of the lost property to exercise the right to claim the return of the lost property.

At present, China's laws do not specify the organs specifically responsible for accepting lost property, but from the perspective of some departmental rules, local regulations and relevant regulations, the organs that accept lost property are mainly railway station management agencies, airport management agencies, public security organs, etc.

Article 315 of the Civil Code: Where the relevant departments receive lost property and know the right holder, they shall promptly notify them to collect them;

This article stipulates the obligation of relevant departments to actively perform their duties and prevent relevant departments from neglecting to exercise their pledges.

The method of publication of the solicitation announcement shall be determined according to the different methods of publication based on the different values of the found.

2. Custody obligations:

Article 316 of the Civil Code: Before the finder sends the lost property to the relevant departments, the relevant departments shall properly keep the lost property before it is collected. Where intentional or gross negligence causes damage or loss of lost property, civil liability shall be borne.

The person who picks up the lost property only bears civil liability if he intentionally or grossly negligently causes the damage or loss of the lost property, because if the liability is too large, the lost property will not become a "hot potato"

The right of the person who picked up the lost property

1. Right to claim reimbursement of expenses:

The person who picked up the lost property or the organ that kept the lost property is in a position of no cause management. Based on the legal relationship of no cause of management, the administrator has the right to require himself to reimburse the expenses paid by himself for engaging in the management office and to compensate for the losses suffered (article 979 of the Civil Code), so when the right holder collects the lost property, it shall pay the necessary expenses for the custody of the lost property to the finder or the relevant department (article 317 of the Civil Code)

2. Right of retention

Although the Civil Code does not directly stipulate that the person who found the property or the organ that kept the lost property has the right of retention, from a legal point of view, the provisions of the Civil Code on the right of retention can be applied.

When the person entitled to receive the lost property refuses to pay the above-mentioned expenses to the finder or the authority where the lost property is kept, the provisions of the right of retention may be applied to the person who collected the lost property or the authority that kept the lost property in order to ensure the realization of the right to claim reimbursement of the expenses.

3. Right to claim remuneration:

Based on the promotion of the fine traditional virtue of doing good deeds without seeking rewards, the Civil Code does not stipulate the right to claim remuneration from the picker, but only in Article 317, Paragraph 2 of the Civil Code, where the obligee offers a reward for finding lost property, he shall perform his obligations in accordance with the commitment when collecting the lost property.

4. Ownership of lost property

In the case of the lost property unclaimed, in order to avoid the long-term exclusion of the lost property from economic circulation, the ownership of the lost property should be determined in a timely manner.

Article 318 of the Civil Code: Where lost property is unclaimed within one year from the date of the announcement of recruitment, it shall belong to the State.

Case

Plaintiff's claim:

1. Order the defendant to return a Huawei P30Pro mobile phone; if the original mobile phone is not there, it shall demand compensation for a new mobile phone with the same configuration as the Huawei P30Pro, or compensate the price of the original mobile phone of 5488 yuan;

2. Order the defendant to compensate 5,000 yuan for mental damage.

Facts and reasons: The plaintiff accidentally lost a Huawei P30Pro mobile phone when he got off the bus at the entrance of a hospital inpatient department, and through the police station's access monitoring, it was found that the lost mobile phone was picked up by the defendant. The plaintiff requested the return of the lost mobile phone through the police station, and the defendant promised to return it on 3 days. However, the defendant did not return it on time and refused to return it after re-negotiation. The defendant admitted that he had picked up the mobile phone and constituted escrow before returning the mobile phone, objectively capable of returning it without returning it, and subjectively for the purpose of illegal possession. In addition to the important information of the plaintiff's own correspondence and contact, there are also a large number of photos and papers of the plaintiff's father, and the plaintiff's father has died of illness, and the loss of the mobile phone has caused irreparable mental damage, so the compensation for mental damage is requested.

The defendant argued that it was true that the huawei P30Pro mobile phone that the plaintiff had lost was found. During this period, the plaintiff communicated improperly with the respondent, and also harassed the respondent's family by telephone, which seriously affected the normal life of the respondent, and the plaintiff's claim for compensation for mental damage was not based on facts and should be rejected. The Respondent agreed to compensate the Plaintiff for a brand new mobile phone of the same model or a discount of 1500 yuan to 1600 yuan.

During the trial, the plaintiff submitted to this court the public security organ's police/receipt for help, the receipt for collection (purchase invoice), and the WeChat chat records between the plaintiff and the public security police, intending to confirm the fact that the defendant found the mobile phone and lost the value of the mobile phone. The defendant did not submit evidence.

The public security organ's police/receipt for help and receipt for payment (purchase invoice) submitted by the plaintiff were cross-examined by the defendant at trial, and the defendant had no objections, and this court confirmed it; for the WeChat chat records, because the plaintiff failed to submit the original carrier of the chat records, the authenticity could not be determined and was not accepted.

Based on the evidence of the above determination and combined with the statements of the parties, the facts of this case are determined as follows:

The plaintiff lost a Huawei P30Pro mobile phone while getting off the bus at the entrance of a hospital inpatient department, and later reported the case to the public security organs. After the public security organs assisted in the investigation, it was found that the lost mobile phone was picked up by the defendant. The plaintiff contacted the defendant and his family directly or through the public security organs to request the return of the lost Huawei mobile phone. The defendant promised to return the mobile phone, but failed to return it in time, and later lost the mobile phone.

It was also found that the mobile phone brand lost by the plaintiff was Huawei P30Pro, the processor ran memory 8G, static memory 128G, red tea orange, the price of the mobile phone at the time of purchase was 5488 yuan.

This Court is of the view that Article 314 of the Civil Code of the People's Republic of China stipulates that if lost property is found, it shall be returned to the right holder. The person who picks it up shall promptly notify the right holder to collect it, or send it to the public security and other relevant departments. Article 316 stipulates that before the finder sends the lost property to the relevant department, the relevant department shall properly take custody of the lost property before it is collected. Where intentional or gross negligence causes damage or loss of lost property, civil liability shall be borne. The foregoing provisions specify that the person who picks up the lost property shall return the lost property to the right holder and shall have the obligation to properly take care of the lost property. After the defendant found the plaintiff's lost mobile phone, not only failed to return it in time, but also lost the mobile phone that was found in poor custody, which violated the fine tradition of collecting gold, and indeed there was something wrong and should be blamed. Since the mobile phone has been lost and the original property cannot be returned, the defendant should therefore compensate for the loss of the type of goods or the original price. During the trial, the defendant expressed its willingness to compensate the new mobile phone with the same brand and model as the lost mobile phone, and the plaintiff also expressed acceptance, and this court confirmed this. On October 13, 2021, after the plaintiff inquired in the "Jingdong" mall, the retail price of the Huawei P30Pro (8G+128G, red tea orange) mobile phone with the same brand model as the lost mobile phone was 4899 yuan, which can be used as compensation for the purchase of a new mobile phone, so the defendant should compensate the plaintiff for 4899 yuan. The lost mobile phone has been set up by the plaintiff with a password lock screen, the defendant has failed to view the contents of the mobile phone, there is no evidence to prove that the data and materials in the lost mobile phone have been leaked, or there are photos, papers and other materials claimed by the plaintiff, and the plaintiff's claim that the loss of the mobile phone caused its mental damage due to its failure to return it, and the request for compensation for mental damage consolation payment lacks factual basis and is not supported.

In accordance with the provisions of Articles 238, 314, 316 and 1184 of the Civil Code of the People's Republic of China, the judgment is as follows:

1. The defendant shall compensate the plaintiff for the price of the lost mobile phone of 4899 yuan within 10 days from the effective date of this judgment;

2. Reject the plaintiff's other claims.

If the obligation to pay money is not performed within the period specified in this judgment, the interest on the debt during the period of delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China. ......

Attached: The main basis for the judgment in this case

I. Civil Code of the People's Republic of China

Article 238:Where property rights are infringed upon, causing damage to the right holder, the right holder may request damages in accordance with law, and may also request to bear other civil liabilities in accordance with law.

Article 314:Lost property shall be returned to the right holder. The person who picks it up shall promptly notify the right holder to collect it, or send it to the public security and other relevant departments.

Article 316:Before the finder sends the lost property to the relevant departments, the relevant departments shall properly take custody of the lost property before it is collected. Where intentional or gross negligence causes damage or loss of lost property, civil liability shall be borne.

Article 1184:Where the property of another person is infringed upon, the property loss shall be calculated according to the market price or other reasonable means at the time the loss occurred.

Article 188: (Tips for Applying for Enforcement)

The limitation period for requesting protection of civil rights from the people's court is three years. Where the law provides otherwise, follow those provisions.

The limitation period is calculated from the date on which the obligee knows or should have known that the right has been infringed and that the obligor has been injured. Where the law provides otherwise, follow those provisions. However, if more than 20 years have elapsed since the date on which the right has been damaged, the people's court shall not protect it, and where there are special circumstances, the people's court may decide to extend it on the basis of the right holder's application.