[Explain the law with a case] picked up a mobile phone and asked for 2,000 yuan, should this "reward" be given?

in everyday life

It is not uncommon for someone to lose or find someone else's belongings

Someone will contact the owner to return it

There are also people who will take it for themselves and ask for high rewards

Or the idea that asking for compensation is not malicious damage

Summary of the case

Zhang accidentally lost his mobile phone while dining out, and later, with the help of the police, he got in touch with Geng, who had picked up the mobile phone. Geng proposed that Zhang must pay 2,000 yuan to "buy" the mobile phone, otherwise he would flash the phone.

So, can you own what you pick up?

What are the legal consequences of refusing to return it?

How can the owner get the lost property back?

Is it the right of the finder to "collect money"?

One

Can I own something I pick up?

First, the lost property needs to be explained and defined. In the legal sense, "lost property" refers to items that are out of control of the owner or possessor of movable property that has been left elsewhere without his will.

"Lost property" usually has several characteristics: first, it should be movable property, that is, it refers to something that can be moved without impairing its value or use, and the "thing" in daily life, except for real estate such as houses and land, the rest of the property is movable property, such as machinery and equipment, vehicles, animals and daily necessities; Secondly, it needs to be a subject. If it is deliberately abandoned by others, the object is ownerless, and the picker will acquire ownership due to "pre-emption"; Thirdly, the loss of possession of the object by the original owner or possessor means that the person in possession has in fact lost the ability to control the thing according to the general concept of society, and at the same time, the state of loss of possession has nothing to do with whether the original owner or possessor is aware of the loss of possession; Finally, buried and hidden objects, such as ancient coins excavated from the ground, are not objects of lost property. The so-called "founding" refers to the discovery and actual possession of the lost property, and the act of finding the lost property is a factual act, and the actor's civil capacity is not a constitutive element. In the above incident, Geng's picking up Zhang's mobile phone is a typical case of finding lost property.

Article 314 of the Civil Code stipulates that if a lost property is found, it shall be returned to the right holder. The finder shall promptly notify the right holder to collect it, or send it to the public security and other relevant departments. It can be seen that the mainland legislation has established that the lost property should be returned to the right holder, and the lost property is not subject to the principle of acquisition of ownership, which is in line with the moral spirit of "finding gold without ignorance" and "leaving no road behind" advocated by the traditional culture of the mainland for thousands of years. Therefore, for the found items, unless the other party admits to giving up after contacting the owner, or can be identified as ownerless according to common sense, the finder cannot obtain ownership. In addition, the ownership of a thing cannot be judged by its value, and the establishment, alteration, transfer, and extinction of a thing are all prescribed by law. It can be seen that Geng asked Zhang to spend 2,000 yuan to "buy" the mobile phone, which has no basis in law.

Two

What are the legal consequences of refusing to return it?

From the perspective of civil liability, the first paragraph of Article 312 of the Civil Code stipulates that the owner or other right holder has the right to recover the lost property. Article 316 stipulates that before the finder delivers the lost property to the relevant department, the relevant department shall properly keep the lost property before the lost property is collected. Where damage or loss of lost property is caused intentionally or through gross negligence, civil liability shall be borne. From the above provisions, it can be seen that after the discovery of lost property, the law imposes the obligation on the finder to keep it, notify it in a timely manner, return or deliver it. The finder's refusal to return the lost property is an act of refusal to perform a statutory obligation, which has constituted an infringement of the owner's ownership, and the original property should be returned to the owner or equivalent compensation should be paid. At the same time, according to the third paragraph of Article 317 of the Civil Code, if the finder embezzles the lost property, he has no right to request the expenses incurred such as the custody of the lost property, nor does he have the right to request the right holder to perform its obligations as promised. It can be seen from this that when the finder refuses to return the lost property, he also loses the right to demand that the owner pay the cost of the storage of the lost property or to require the owner to fulfill the promise of reward.

From the perspective of criminal responsibility, according to article 270 of the Criminal Law, for the purpose of illegal possession, illegal possession of property, forgotten items, or buried items in custody and refusal to return them may be suspected of constituting the crime of embezzlement, depending on the value of the property. The standard amount for filing and prosecution is 20,000 yuan. It should be noted that the crime of embezzlement is a private prosecution case and must be handled only after a complaint, and according to article 212 of the Criminal Procedure Law, if the defendant and the private prosecutor reach a mediation or settlement agreement before the judgment is announced, the litigation procedure may be concluded and criminal responsibility will not be pursued. If the victim is threatened for the purpose of illegal possession, and public or private property is forcibly extorted, and the standard for filing a case for prosecution is met, the crime of extortion may also be suspected. It can be seen that if the provisions of the criminal law are met, Geng may also be suspected of a criminal offense.

Three

How can the owner get the lost property back?

The finder should take good care of the lost property and maintain the value of the lost property. The Civil Code stipulates that if a person causes damage or loss of lost property due to intentional or gross negligence, he shall bear civil liability. Under this provision, if a lost item is damaged or lost due to careless keeping, the finder is not liable for compensation as long as there is no intentional or negligent fault on the part of the finder. The civil liability for damage and loss of lost property is limited to intentional and gross negligence, which reflects the original legislative intent that it is not appropriate to impose excessive custody obligations on the finder, and also embodies the principle of consistency of rights and obligations. As to how to determine intent and gross negligence in individual cases, it should not be based solely on the subjective statement of the finder, but should be comprehensively judged on the basis of the antecedents and consequences of the damage or loss of the lost property. At this time, it is objectively impossible to return the original thing, and the specific liability for damage and loss should be handled in accordance with the general rules on compensation for damage caused by infringement of property in the tort liability section of the Civil Code.

According to the second paragraph of Article 312 of the Civil Code, 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 of disposition, or request the transferee to return the original property within two years from the date on which he knew or should have known about the transferee; However, if the transferee purchases the lost property through auction or from a qualified business operator, the right holder shall pay the fees paid by the transferee when requesting the return of the original item. After the obligee pays the fees paid to the transferee, it has the right to recover from the person without the right of disposition. This shows that after the finder sells the lost property, the owner has the right to directly claim damages from the finder, and can also request the transferee to return the original item within a certain period of time.

As for whether the flashing of the mobile phone will result in additional loss compensation, we can learn from the case. Li lost a mobile phone when handling business, and found that the mobile phone was found by Liu after the police called for monitoring, and when the two parties were handed over, Li found that his mobile phone had been "flashed" and restored to factory settings, and the information stored in the mobile phone could not be retrieved. After the trial, the court held that Liu failed to fulfill his legal obligation to return and properly keep the mobile phone in a timely manner after he found it, and caused the loss of the documents and materials in it by flashing the phone, infringing on Li's property rights and interests, and causing actual losses to Li, mainly including the damage to the mobile phone by flashing, the adverse impact of the loss of information and files stored in the mobile phone, and the time, energy and monetary costs spent on retrieving the documents and materials. In the end, in addition to returning the mobile phone, the court decided to sentence Liu to compensate Li for the loss of 2,000 yuan.

Four

Is it the right of the finder to "collect money"?

The law also gives a certain degree of protection to the good deeds of the founders. Paragraph 1 of Article 317 of the Civil Code stipulates that when the right holder receives the lost property, it shall pay the necessary expenses for the custody of the lost property to the finder or the relevant department. This paragraph determines the right of the finder to claim reimbursement of the necessary expenses, which does not mean that he can arbitrarily claim compensation from the owner after picking up something, but that the necessary expenses incurred in keeping the lost property can be repaid by the other party, which is also in line with the requirements of the principle of reciprocity of rights and obligations.

However, if it is clearly beyond the necessary scope, it has no right to demand payment from the other party. For example, when Xu took a taxi, he left his mobile phone in the car, and then the driver Chen returned the mobile phone after driving about 5 kilometers, and asked for a total of 500 yuan in compensation, fuel fees, and economic loss fees, otherwise the mobile phone would not be returned. The court held that Chen could only recover the necessary fuel costs when returning the mobile phone, and had no right to claim the rest of the remuneration expenses.

In real life, in order to recover the lost property as soon as possible, the owner may release information through TV stations, radio stations, WeChat and Weibo, etc., often expressing similar content such as "picking up such and such an item, the owner is willing to give a certain reward" and other similar content. At the legal level, this is a typical example of finding a lost property in the form of a bounty advertisement. Paragraph 2 of Article 317 of the Civil Code stipulates that if the right holder offers a reward for finding the lost property, it shall perform its obligations in accordance with the promise when collecting the lost property. This provision clarifies the conditional right of the finder to claim remuneration such as a reward advertisement, which not only respects the autonomy of the parties, but also encourages the finder to actively return it. When the owner publishes the reward advertisement, it constitutes a unilateral promise in the sense of civil law, and the finder who returns the lost property has the right to claim the reward promised in the reward advertisement, and the owner shall perform its obligations in accordance with the corresponding commitment when receiving the lost property.

From a legal point of view, the finder of the lost property has the legal obligation to keep it properly and return or deliver it in a timely manner, and also has the legal right to request the owner to pay the necessary storage fees and promised remuneration. However, Geng's request to return Zhang's mobile phone for 2,000 yuan has no legal basis. Think about it, if the law affirms the act of "collecting money for payment", it will increase the obligation of the owner, and it will also violate traditional virtues such as honesty and trustworthiness.

"Finding gold" is not only a traditional virtue

It is also confirmed in the form of legal rigidity

Someone else accidentally lost an item

It is regarded as a windfall from heaven and taken for oneself

It is a temptation on the verge of breaking the law and committing crimes

It will only be morally condemned and severely punished by law.