How to characterize the theft of property that is not the debtor's property as the debtor's property

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1. Basic facts of the case

Defendant Guan Shengyi, male, was born on September 11, 1985. Arrested on May 9, 2012 on suspicion of theft.

The People's Procuratorate of Yuexiu District, Guangzhou City, Guangdong Province, filed a public prosecution with the Yuexiu District People's Court on the grounds that the defendant Guan Shengyi had committed the crime of theft.

Defendant Guan Shengyi has no objection to the facts and charges in the indictment, but argues that he went to Su Wei's property "No. 13 Compound" to commit theft because Su Wei defaulted on the advance payment for business, which was a cause for the incident, and requested the court to give him a lighter punishment. Guan Shengyi's defender requested the court to give Guan Shengyi a lenient punishment on the following grounds: (1) Guan Shengyi's motive for the crime was that Su Wei had defaulted on his advance payment and privately took away the property that he mistakenly thought was Su Wei, and Guan Shengyi's subjective malice was relatively low, and the circumstances of the crime were relatively minor; (2) Guan Shengyi had the circumstance of voluntary surrender, and the punishment could be reduced in accordance with the law; (3) the stolen goods in this case had been returned and no losses were caused to the victim; (4) Guan Shengyi was a first-time offender and an occasional offender, and showed obvious remorse.

The Guangzhou Yuexiu District People's Court ascertained through an open trial that at about 6:00 p.m. on July 21, 2012, the defendant Guan Shengyi drove a van to the compound at No. 13 Yiheng Road, Nonglin Shang Road, Yuexiu District, Guangzhou City, entered the compound with a key prepared in advance, and stole a root-carved coffee table (worth 25,000 yuan) that Xie had placed there, and then fled the scene. On August 8, 2012, Guan Shengyi surrendered to the public security organs after being summoned. On the 22nd of the same month, Guan Shengyi handed over the above-mentioned stolen goods to the public security organs.

It was also ascertained that Guangzhou Zesheng Modern Culture Communication Co., Ltd. (the legal representative of the company is Su Wei, hereinafter referred to as Zesheng Company) owed Guan Shengyi more than 7,000 yuan in business payments. Before the case occurred, Zesheng Company had worked in the compound at No. 13, Yiheng Road, Nonglin Shang Road, Yuexiu District, Guangzhou City.

The Guangzhou Yuexiu District People's Court held that the defendant Guan Shengyi, for the purpose of illegal possession, secretly stole other people's property, and the amount was huge, and his conduct constituted the crime of theft. The facts of the public prosecution's accusation that Guan Shengyi committed the crime of theft are clear, the evidence is credible and sufficient, and the charges are convicted and supported. Guan Shengyi voluntarily surrendered to the public security organs after committing the crime and truthfully confessed his crime, and there are circumstances of voluntary surrender, and the punishment may be commuted in accordance with law. The stolen goods in this case have been returned and no losses have been caused to the victims, so Guan Shengyi may be given a lighter punishment as appropriate. Based on the above reasons, the public prosecution's recommendation that Guan Shengyi be sentenced within the range of "two to three years imprisonment" is lawful and reasonable, and is to be adopted. In view of Guan Shengyi's relatively small subjective malice, his good attitude of admitting guilt and repentance after committing the crime, and comprehensively considering his motives, circumstances, and harmfulness to society, a suspended sentence may be announced. Guan Shengyi and his defender's lenient punishment and sentencing opinions are to be adopted. Accordingly, in accordance with the provisions of Article 264, Article 67, Paragraph 1, Article 72, Article 73, Paragraphs 2 and 3, and Article 53 of the Criminal Law of the People's Republic of China and Article 2, Paragraph 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Property Penalties, the Guangzhou Yuexiu District People's Court sentenced the defendant Guan Shengyi to two years and one month imprisonment, suspended for three years, and a fine of 5,000 yuan for the crime of theft.

After the verdict was announced, the defendant Guan Shengyi did not appeal, and the public prosecution did not raise a counter-appeal, and the judgment has already taken legal effect.

Second, the main issues

1. How to characterize the theft of property that is not the debtor's property as the debtor's property?

2. Is it necessary to review and confirm the basic facts of a civil dispute in a criminal trial that seriously affect sentencing?

III. Grounds for the Trial

(1) Where property that is not the debtor is mistakenly stolen as the property of the debtor, it shall still be convicted and punished as the crime of theft

In this case, in order to realize his own creditor's rights, the defendant Guan Shengyi used the key prepared in advance to enter the courtyard of another person, and transported the Gendiao coffee table worth 25,000 yuan stored in the courtyard as the property of the debtor, and there were different opinions on whether his behavior constituted the crime of theft. One opinion is that although Guan Shengyi objectively carried out the act of secretly stealing other people's property, he did not have the purpose of illegal possession. The reason is: Guan Shengyi's subjective purpose in stealing property is to realize his creditor's rights, but the means are illegal, and he should only be punished with non-criminal punishment measures such as criticism and education, and should not be investigated for criminal responsibility for the crime of theft. Another opinion holds that Guan Shengyi violated the property rights of others by illegal means of secret theft, and his behavior constituted the crime of theft.

We agree with the second view that unlawful appropriation encompasses not only the illegality of the end, but also the illegality of the means. The perpetrator's subjective intention to take possession of another person's property by illegal means may still be regarded as having the purpose of illegal possession, otherwise it is an indulgence of such illegal acts. Of course, in individual cases, because the purpose is legitimate, so that the social harm of the act reflected in the illegality of the means is greatly reduced, it can be found that the circumstances of the crime are obviously minor and the harm is not great, and it is not to be treated as a crime. If the creditor commits theft in order to realize the creditor's rights, after the theft is completed, the debtor shall be informed of the theft in a timely manner and declare that the stolen goods will be returned as long as the debtor repays the loan. In this case, since the legitimacy of the purpose of realizing the creditor's right and the subsequent follow-up act of realizing the creditor's right have a remedial function on the previous illegal means, so that the illegality of the possession can be "bleached" to a certain extent, this situation can not be treated as a crime. However, in this case, Guan Shengyi could realize his creditor's rights through legal channels, but he used secret theft to obtain the property, and he had the purpose of illegal possession. At the same time, the value of the property stolen by Guan Shengyi was significantly higher than the amount of his creditor's rights, and he did not follow up on the realization of the creditor's rights, such as notifying the debtor and filing a lawsuit with the people's court for litigation preservation of the stolen property, etc., the illegality of his possession was obvious, so the court found that the purpose of illegal possession arose due to the failure to collect debts.

It is worth discussing that in the course of committing a crime, the perpetrator sometimes has a situation where the intended target of the harm is inconsistent with the actual target of the crime because of the misidentification of the target of the crime, which in turn has a certain impact on the handling of the case. In this case, the creditor Guan Shengyi mistook the property of the third party Xie Moumou for the property of the debtor Su Wei and stole it, which was a misunderstanding of the object of the crime. However, whether it is the property of the debtor or the property of a third party, the legal interests embodied are of the same nature, and they belong to the same constitutive elements within the scope of misunderstanding, and do not have a substantial impact on the nature of the criminal act. Therefore, even if Guan Shengyi did not have a misunderstanding of the object of the crime and actually stole the property of the debtor Su Wei, it would not affect the investigation of his criminal responsibility for the crime of theft. At the same time, the misunderstanding of the target of the crime is a problem that arises after the criminal motive arises, so the influence of the criminal motive on sentencing is still valid, that is, although Guan Shengyi actually stole the property of a third party, considering the criminal motive of Guan Shengyi's theft, his subjective malice is relatively small, and he should be given a lenient treatment at sentencing.

(2) Where the basic facts of a civil dispute in a criminal trial seriously impact sentencing, it is necessary to review and confirm it

The motive for the crime is the inner cause or ideological activity that stimulates or prompts the perpetrator to commit the criminal act, and to a large extent reflects the perpetrator's subjective malice, personal dangerousness, and the degree of social harmfulness of the act committed, and also involves the issue of whether the victim is at fault for the occurrence of the case, and is an important sentencing circumstance. In criminal trials, it is necessary to ascertain as much as possible the motives of the perpetrators and to give full consideration to them in sentencing. In this case, the defendant Guan Shengyi and his defender submitted that Guan Shengyi privately took away the property that Su Wei mistakenly thought was Su Wei because Su Wei owed him the business money he had advanced, and his subjective malice was relatively low, and the circumstances of the crime were relatively minor. In such circumstances, the facts of the defense shall be ascertained, so that the defendant can be sentenced objectively and accurately.

Whether Su Wei owed the defendant Guan Shengyi money is the basic fact for ascertaining Guan Shengyi's motive for committing the crime. Whether there is a creditor's rights and debts relationship between Guan Shengyi and Su Wei is a civil dispute and should generally be tried in accordance with the relevant rules of civil litigation. Under normal circumstances, for such a civil dispute, Guan Shengyi should file a civil lawsuit to confirm the existence of a creditor-debtor relationship between him and Su Wei, and order Su Wei to repay his money and fulfill his payment obligations. However, if there is a dispute between the two parties over the creditor's rights and debts and no civil lawsuit has been filed, whether the criminal court can review the civil dispute and determine the relevant facts is an issue worth exploring. In our opinion, according to the current division of labor among the internal business divisions of the courts, civil disputes other than attached civil litigation cannot generally be dealt with in criminal trials. However, when the underlying facts of a civil dispute seriously affect the sentencing, it is necessary to ascertain as much as possible.

In this case, the public prosecution did not examine Guan Shengyi's criminal motive, but the court ascertained and confirmed the fact that Zesheng Company owed Guan Shengyi more than 7,000 yuan in business payments after trial, which provided a factual basis for accurate sentencing. During the trial of this case, Guan Shengyi argued during the trial that he learned from Su Wei that Su Wei planned to renovate Compound No. 13, and that he usually knew that Su Wei lived in the property, and had always believed that the property belonged to Su Wei. The theft was carried out because Su Wei owed him the business money he had advanced, and the purpose was to realize the creditor's rights. Witness Su Wei testified in court that Guan Shengyi argued that the business corresponding to the arrears of the advance was indeed the business carried out by Zesheng Company, and it was impossible to confirm whether the business expenses were paid by Guan Shengyi. Zesheng Company had worked in the compound at No. 13, Yiheng Road, Nonglin Shang Road, Yuexiu District, Guangzhou City, where the case occurred, and it did not clearly indicate to Guan Shengyi that the above-mentioned compound was a property owned by others, and had told Guan Shengyi that it planned to renovate the property. It can be seen that Su Wei did not respond positively to whether he owed Guan Shengyi the business payment during the trial, but only confirmed that the business corresponding to Guan Shengyi's argument of "advance payment" was indeed the business carried out by Zesheng Company. During the trial, Su Wei did not clarify whether she indicated to Guan Shengyi that Compound No. 13 belonged to her property, but confirmed that she had not indicated to Guan Shengyi that the above-mentioned compound belonged to someone else's property, and had told Guan Shengyi that she planned to renovate the property. The above-mentioned testimony of the witness Su Wei should be analyzed and determined in conjunction with other evidence in this case. The testimony given by witness Lin Sulin in court confirmed that Su Wei had claimed to her client that the compound at No. 13, where the crime occurred, was her personal property. The testimony of witnesses Lin Sulin, Yang Wenwei, Qiu Wenxuan, and Hu Guowei also confirmed that Guan Shengyi had advanced more than 7,000 yuan for Zesheng Company's business and that Su Wei, the company's boss, had been in arrears all along. Based on the above-mentioned evidence, it can be determined that Guan Shengyi was owed more than 7,000 yuan in advance by Su Wei's Zesheng Company, and Guan Shengyi failed to recover the money and mistakenly believed that it belonged to Zesheng Company's property, a coffee table worth 25,000 yuan, and stole it to "pay off debts".

It should be noted that the review and determination of the basic facts of the above-mentioned civil disputes in criminal trials is only necessary to ascertain the facts of the case. Different from the civil litigation attached to the criminal case or the pure civil litigation, the above-mentioned civil dispute is not the subject matter of the litigation in this case, so Su Wei cannot be ordered to repay Guan Shengyi's money in the criminal judgment document. In other words, for Guan Shengyi, he could not use the basic facts of the civil dispute determined in the criminal judgment to require Su Wei to perform the repayment obligation or apply to the enforcement department for compulsory enforcement.

In summary, by summoning witnesses to testify in court and reviewing the testimony in combination with other evidence in the case, the Guangzhou Yuexiu District People's Court ascertained the relevant facts about the defendant Guan Shengyi's motive for committing the crime. In view of the fact that Guan Shengyi had voluntarily surrendered, actively returned the stolen goods, and had a good attitude of admitting guilt and repentance after committing the crime, the Guangzhou Yuexiu District People's Court comprehensively considered the motive for the crime, the circumstances and the degree of harm to society, and sentenced Guan Shengyi to a suspended sentence, demonstrating the fairness of the law and achieving good legal and social effects.

Author: Lin Xuqun, Zou Haimei

Author's Affiliation:Guangzhou Yuexiu District People's Court