If you were asked to file a lawsuit, how come you were not found guilty?

Chapter 173 Secret Stealing and Unjust Enrichment

Before he came, he simply read the part of the judgment published online, focused on the part where the court considered it, and skipped the defense opinion.

It's not that he thinks the defense opinions are worthless, but that the published judgment only lists the key points of each part and is lacking in many details.

When he didn't understand the details of the case, he went to see another colleague's point of view, which was still unclear. Ren was really afraid that he would be affected in some way, so he simply skipped it all.

Now that this colleague is right in front of us, of course we need to study his ideas carefully.

"The charge charged by the public prosecution court of first instance was theft, and the object of the theft was a financial institution. This charge is too serious."

Duan Yiping sighed: "Actually, I am not very sure about the nature of Xu Jiaxian's behavior. You have to say that he was not theft. When I heard about this case, my first reaction was indeed consistent with the accusations of the public prosecution.

But if you say it looks like theft, I think it is very different from traditional theft.

Apart from anything else, in terms of this method alone, it is completely inconsistent with what we currently believe in the general theory of criminal law. "

"Xu Jiaxian's behavior does not constitute secret theft, right?"

Duan Yiping nodded. Everyone present was a legal practitioner, so they naturally knew what he meant by means.

In the criminal law provisions, the provisions on the crime of theft are very simple, that is, if the amount of public or private property is stolen, if the amount is relatively large, or if there are other legal circumstances, varying degrees of punishment will be imposed.

However, the meaning of the word "theft" in "theft of public and private property" is too broad, so in the theoretical circles and judicial practice circles, some understanding standards for the word "theft" have gradually been formed.

After so many years of development, it is now generally accepted that the word "theft" in criminal law objectively manifests itself as the perpetrator's behavior of secretly stealing a relatively large amount of public or private property.

"Secret theft" is a very important criterion for distinguishing the crime of theft from other crimes.

Generally speaking, secret theft is aimed at the owner or custodian of property, that is, in the process of obtaining the property, the perpetrator was not discovered by, or at least believed that he was not discovered by the owner or custodian of the property.

But in Xu Jiaxian’s case, can we say that he thought he had not been discovered by the bank when he was withdrawing money?

Even if you have no common sense, you can still see the big camera on the ATM, right?

Is taking money that does not belong to you under the camera a secret theft?
Any normal person would think the same as Duan Yiping.

"So I think Xu Jiaxian's behavior is definitely a crime, but we can try to work hard on the conviction. As long as it is not recognized as theft and it is theft of a financial institution, at least the sentencing will not be that harsh."

After listening to Duan Yiping's thoughts, several people present nodded.

They are not the kind of lawyers who only deliver clothes to the family members and persuade the client to plead guilty. The first reaction when receiving a case is to determine whether it is a crime.

If it is a crime, what kind of crime it is.

If the type of crime is determined, what kind of plot it falls into.

Duan Yiping obviously focused his defense on guilt and innocence, trying to help Xu Jiaxian reduce his sentence by changing the charges charged by the public prosecution.

Although this idea is conventional, it is indeed effective in most cases.

Unfortunately, this case is not the majority.

"As for the crime of embezzlement, there are only two situations, either illegal possession of other people's property that is kept for safekeeping, or illegal possession of other people's forgotten or buried things."

Chen Guangming reviewed Duan Yiping's thoughts and shook his head: "The outstanding feature of embezzlement is that it turns legal possession into illegal possession. This is also the essential difference between embezzlement and theft. However, the Xu family did not legally hold the money that was taken out. Fundamentals, your idea is fundamentally untenable." Chen Guangming was able to point out the problem to the point. Duan Yiping was not surprised at all. If he couldn't see it, he would be crazy.

"I know this too, but since the case is here, we can only try this direction."

Duan Yiping was helpless: "My idea is that the ATM spit out money that does not belong to Xu Jiaxian, then the money can be regarded as forgotten items, and Xu Jiaxian is only temporarily keeping it on behalf of the bank.

As for his subsequent refusal to answer bank calls and return the money, it can be presumed that this was embezzlement. "

"But whether it is a forgotten object or a buried object, it is not obtained by the actor through active actions."

Ren Zhen's pen made a mark on the notebook: "If a person obtains other people's forgotten things through his intentional and active actions, it obviously violates the legal definition of forgotten things. This makes no sense logically.

Since the money cannot be regarded as forgotten items, the defendant's behavior is even less likely to be kept for the bank, so embezzlement in this direction is definitely not feasible. "

"What you said is almost exactly the same as what the prosecutor said during the trial."

If the trial was not private, Duan Yiping would have even thought that Ren Zhen was attending it.

"Since you tried to charge it with embezzlement, you should have tried to accuse it of unjust enrichment, right?"

Ren Zhen looked through Duan Yiping's defense opinions and found one paragraph.

Unjust enrichment?

Chang Jiahang subconsciously memorized the legal provisions in his heart: There is no legal basis, causing others to suffer losses, while he gains benefits.

Unjust enrichment has no legal basis, so even though it is a fait accompli, it cannot be protected by law, and the unjust enrichment should be returned to the person who suffered the loss.

From this perspective, unjust enrichment seems appropriate, right?
Chang Jiahang scratched his head, unjust enrichment was a matter of civil law, so if it was unjust enrichment, why would he be sentenced?

Moreover, the first instance sentence was life-long.

He was so fascinated that he had forgotten some basic theories.

"I tried it, but it was of no use."

Duan Yiping sighed again, obviously very dissatisfied with his defense this time: "I brought up unjust enrichment not to exonerate him, but just to support the crime of embezzlement, but embezzlement has been denied, so this direction is of no use. ”

"That confirms that unjust enrichment is essentially a legal fact, and the debt it causes is entirely based on legal provisions, not on the intention of the parties. It is not an act and has nothing to do with the will of the parties."

Although he is a master of criminal law, it is impossible for Chen Guangming to know nothing about the basic theories of civil law: "The intention of illegal possession in the dozen or so withdrawals made by Xu Jiaxian is too obvious. Even if the first time was an accident and it was passive, the subsequent It is definitely an active infringement even more than ten times.”

Intent to illegally possess?
Chang Jiahang suddenly realized.

There is some overlap between one people and one punishment, but there is no conflict in pursuing the case.

Duan Yiping wanted to deduce that Xu Jiaxian's behavior was illegal possession by arguing that this case was unjust enrichment under civil law, and then supported the view that Xu Jiaxian constituted the crime of embezzlement rather than the crime of theft.

Start with civil matters and move toward criminal matters.

It’s not easy to be a lawyer!

(End of this chapter)