Viewpoint. On the "property interests" in property offenders"

First of all, the property interests as the object of protection of crimes against property, is to protect the personal legal interests of citizens. The rapid development of social economy and science and technology has reshaped the external characteristics of citizens' property. Property transactions are often no longer based on external tangible objects, but are realized in the form of data through the network. Broadly speaking, the money savings in bank accounts and online payment accounts are also intangible property interests such as creditor's rights. It is obviously impossible not to protect such property interests in today's highly developed digital society. The legal interest is an indispensable element to complete the goal of self-realization (the development and completion of personality) of individual freedom, and it is a necessary condition to achieve this goal. [1] For citizens, if the simple protection of external tangible objects is not enough to meet their urgent requirements for the pursuit of personal free development, they have to resort to the expansion of the object of protection of crimes against property, and the intangible property interests are also included in the protection of crimes against property.

Secondly, the maintenance of social and economic order also needs to expand the object of crimes against property to property interests. With the continuous improvement of modern digital technology and other means, intangible property interests are more and more convenient and reliable through modern trading activities. It must be pointed out that the existence and circulation of property interests, because it does not have the tangibility of the objective world, is essentially a fiction of the normative order. At the same time, citizens' trust in the normative order makes them more active in accepting property interests and promotes the infiltration of property interests into the base of economic order. Finally, the economic order of modern society has been irreversibly established on the basis of property interests. Therefore, the infringement of property interests disturbs the social economic order and destroys the effectiveness of norms. The protection of property interests is not only the needs of individual citizens, but also the objective needs of maintaining social and economic order. Because of its importance, it is bound to require the intervention of criminal law. Just imagine, do not recognize the normative possession of creditor's rights, abandon it outside the protection of criminal law, the practice of evading creditor's rights is popular, the normal transaction order of the whole society will start?

Again, taking property interests as the object of protection for crimes against property does not violate the modesty of criminal law. Penalty, as a punishment of the State's coercive force, is often manifested in the deprivation of liberty of imprisonment, and its severity is self-evident, and criminal law, as a law that stipulates crime and punishment, must be modesty, that is, it must become the last resort to adjust society. Only when other laws are not sufficient to adjust and remedy the infringed social relations, the criminal law should intervene in time. For acts that infringe on the property interests of citizens, the remedies provided by civil law cannot be effectively adjusted, and criminal law must be involved. For example, the act of stealing a debit note, since the theory of civil law, the debit note belongs to the creditor's rights certificate, the creditor's rights are established when the money is lent, whether the debit note is deposited only involves the difficulty of proving at the time of litigation, and the elimination of the debit note does not necessarily accompany the elimination of the creditor's rights. Therefore, some scholars believe that theft of IOUs is only a civil act and does not require criminal law intervention. "The general act of non-payment of debts is only a civil act, and it is detrimental to civil liberties to bring this ordinary civil act into the scope of criminal law." [2] However, the theft of the IOU by the offender poses difficulties that cannot be ignored for the exercise of the creditor's claim, and may even lead to the practical damage of proving the inability to exercise the claim in the course of the proceedings. The remedies of civil law can do nothing about this and can only give creditors the right to claim compensation for damage caused by delay in performance on the difficulty of performance of the claim. But on the one hand, the damage of delayed performance is almost impossible to prove, on the other hand, it is almost impossible to expect a person who actively damages the creditor's rights to continue to perform the tort debt other than the main claim. Therefore, after the exhaustion of civil law and other means, we must rely on the intervention of criminal law to protect the property interests of creditor's rights.

Finally, taking property interests as the object of protection of crimes against property does not violate the principle of legality. In fact, the existence of property interests has been recognized in the written law of our country. For example, Article 92 of the Criminal Law stipulates: "the property privately owned by citizens as mentioned in this Law refers to the following property: (1) citizens' legitimate income, savings, houses and other means of livelihood; (II) means of production owned by individuals and families in accordance with the law; the legitimate property of (III) self-employed and private enterprises; and (IV) shares, stocks, bonds and other property owned by individuals in accordance with the law." The first item, "savings", is what the non-citizen really owns, but his claims on savings institutions such as banks, and also includes deposit claims stored on third-party digital payment platforms such as Alipay and WeChat. The fourth "shares, stocks, bonds", etc., are also property rights or certificates of rights. For another example, paragraph 3 of Article 196 of the Criminal Law stipulates that "whoever steals and uses a credit card shall be convicted and punished in accordance with the provisions of Article 264 of this Law." Obviously, the use of credit cards will not cause the value of the credit card itself to decrease, but will only increase the claims recorded on the card, resulting in the transfer of the claims that should have been borne by the perpetrator to the victim, this article is to take the claims as the protection object of the crime of infringement of property, and the perpetrator is a crime of infringement of property in the form of negative reduction of property. Article 224 of the Criminal Law, item 4 of the crime of contract fraud stipulates: "Escape after receiving goods, payment for goods, advance payment or secured property paid by the other party". Obviously, the secured property should not be limited to tangible objects, according to the provisions of Article 76 of China's Guarantee Law on the pledge of rights, should be sure to be used for the pledge of shares, bonds, checks, bills of lading and other documents of rights, the equity and claims of which are all property interests protected by criminal law. For another example, Article 265 of the Criminal Law stipulates: "For the purpose of making profits, anyone who steals another person's communication line, copies another person's telecommunication code number, or knowingly uses telecommunication equipment or facilities that are stolen or copied shall be convicted and punished in accordance with the provisions of Article 264 of this Law." At present, generally speaking, it is generally believed that the perpetrator evades the creditor's rights after enjoying the telecommunication network service, and makes the legitimate user bear the additional cost, and this article expressly affirms the existence of the theft of property interests. [3] The view has been expressed that telecommunications code numbers are insubstantial and that the provisions of this article should not be used as evidence of the protection of property interests in criminal law. [4] This view obviously falls into the misunderstanding of looking at the text. The telecommunication code number is just a string of numbers, not even the smallest particle quark in the objective world. It does not have objective reality at all. It is far from common inobjects such as current composed of electrons and gas composed of gas molecules such as methane in criminal law theory, and cannot belong to objects. The essence of the telecommunication code number is the user number and network number to realize the telecommunication function, and the user uses the telecommunication code number as proof of identity to access the telecommunication network and obtain telecommunication services. The punishment of this crime is not the theft of the telecommunication code number itself, but the punishment of the theft, theft of other people's telecommunication code number, telecommunications equipment, disguised as others to enjoy the telecommunications services that should be enjoyed by the victim, the telecommunications company based on the services provided to the telecommunication code number and the exercise of claims to the victim. Therefore, the constitutive element of this crime is still essentially an infringement of the creditor's rights.

In addition to the above-mentioned examples, most of the crimes of encroachment on property in the criminal law are stipulated under the chapter V of the criminal law. According to the basic principles of the interpretation of the system, the crimes listed in the specific chapter shall be bound by the purpose of the chapter and have the same purpose as the purpose of the chapter. This paper holds that the object of protection such as theft, fraud and robbery is property, including property rights, and that the "public and private property" in its specific provisions belongs to the attention provisions of the criminal law, which aims to emphasize the common infringement of "things" in the crime of infringement of property, but does not exclude the nature of "property rights" as property.

Some scholars believe that intangible property such as virtual property should not be rashly protected by criminal law, on the grounds that it is difficult to accurately assess the property value of virtual property, even if virtual property can be traded, the response is only subjective value rather than objective value. [5] However, even in the case of physical objects, the objective value of which is difficult to measure is not rare, such as antiques, calligraphy and painting, jade and other treasures, especially the orphans and unique items in antique treasures, it is difficult to accurately assess their value; firearms, ammunition, and even drugs and other prohibited items should not be clearly valued. However, there are other normative channels for reasonable conviction and sentencing in China for crimes of property infringement that are not easy to assess the value of property. It is difficult to measure the objective value is the difficulty of judicial practice, and the protection of citizens' property rights and interests is the obligation of judicial practice. Obviously, the sacred obligation of protecting citizens' property rights and interests cannot be abandoned because of difficulties.

Article 5, Item 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Theft Cases stipulates that if the price of stolen goods is unknown or the price is difficult to determine, it shall be in accordance with the State Planning Commission, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security. According to the provisions of the "Administrative Measures for the Valuation of Seized, Recovery, and Confiscated Articles", and. Thus, for property interests such as equity, it is possible to refer to the interpretation of the method of identifying items whose prices are difficult to determine, and entrust a special accounting service to estimate them in the form of an audit report.

For example, (2018) Beijing 0114 No. 171, (2017) Ning 0205 No. 121, (2017) E 05 No. 305, (2020) Yu 1502 No. 246, (2021) Qiong No. 112, all of which are based on audit reports issued by accounting firms, multiplying the percentage of equity by the current value of all assets of the company to calculate the actual value of equity.

The calculation of illegal income by actual profit is a common practice in dealing with tangible property (such as antiques) whose value is difficult to measure.

For example, where an illegal possession of an equity interest is followed by a resale, there are cases in practice where the value of the equity is calculated at the actual resale price. For example, (2017) case No. 5 of Gan 01 and (2015) case No. 12 of Zhu Zhong Fa Xing Er Chu Zi are all based on the actual resale or agreed resale price to calculate the value of the equity.

In practice, for some complex cases of property infringement and cases of property infringement by contraband, the penalty may also be imposed not according to the exact amount, but according to the estimated value amount or the seriousness of the circumstances of the act. For example, Item 8 of Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases stipulates that the theft of contraband shall be dealt with as the crime of theft, regardless of the amount, and shall be sentenced according to the seriousness of the circumstances. Article 1, paragraph 4, of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft shall be retried. Theft of drugs and other contraband shall be dealt with in accordance with the crime of theft and shall be sentenced according to the seriousness of the circumstances. For the infringement of equity, the company can be based on the size of the company, the loss caused, the bad degree of the means, the perpetrator's subjective viciousness and other factors, according to the severity of the circumstances.

For special property such as shares, the specific amount of equity value can also be calculated by multiplying the registered capital by the proportion of equity. For example, in (2018) case No. 495 at the beginning of the punishment of Ji 0381, the amount of his crime was calculated based on the paid-in registered capital. Gongzhuling Zhongsheng New Building Materials Co., Ltd. has a capital of 500000 yuan. The capital verification report and cash deposit certificate issued by Gongzhuling of Jilin Tianchengxin Certified Public Accountants Co., Ltd. prove that Gongzhuling Zhongsheng New Building Materials Co., Ltd. has received a total registered capital of 500000 yuan paid by all shareholders, which has reached 1 million yuan after capital increase. The victim Wang agreed to own 24.5 of the shares. Without Wang's consent, the offender Liu transferred his shares. The court found that his shares played against the value 24.5 constituted the crime of embezzlement. For example,(2017) in the case of No. 53 at the end of the 22nd sentence, when Hami Jiutianhe Real Estate Development Co., Ltd. was established, the victim Chen Mou 1 subscribed to 15 million yuan and 50% of the shares. When Hami Friendship Trading Co., Ltd. was established, the victim Chen Mou 1 subscribed to 1.5 million yuan and 50% of the shares, and his partner was transferred to his own name by taking advantage of his position, the court found that a total of 16.5 million yuan of equity was embezzled.

Shares are the property of citizens expressly recognized in Article 92 of the Criminal Law of our country, and shares are also the core means to control the company. Equity is clearly dominant in nature, and in a shareholder vote, "the will of the shareholders holding the largest number of shares at the shareholders' meeting is considered the will of the company, and the will of the majority shareholders is binding on the minority shareholders" [6]. This means that a majority stake can dominate the company itself on the one hand, and a minority stake on the other. The ownership of the company's equity is directly related to the disposal of the company's huge property, and the well-run company's shares themselves have high market transaction value. The company is a key component of the modern economic society, and equity is a compound right, including decision-making rights, income rights and other rights, which is of great importance. It is clearly illogical to exclude company shares from the protection of crimes against property.

As a property interest, equity can be infringed by the crime of property infringement, which has also been affirmed by judicial practice. For example, in the case of Tian's occupation, the court found that after Tian obtained the official seal from Huang in the name of handling other business, he forged the resolution of the shareholders' meeting and the capital contribution transfer agreement to deceive the industrial and commercial registration department to change the registration, and illegally obtained the equity owned by Shanghai Yongchuang Company. Its behavior has met the constitutive requirements of the crime of fraud, and the defendant Tian was finally convicted of fraud and occupation. [7]

Property interests are widely recognized in Japanese criminal law theory and jurisprudence because of the explicit provisions of statutory law, and "all property interests other than property" are protected by criminal law. According to the Japanese academic community, property interests can be specifically distinguished between positive property increases, such as the provision of services or services, the acquisition of claims or security rights, and negative property decreases, such as debt forgiveness or suspension of debt. [8] This view is also widely recognized by domestic scholars.

However, on the one hand, the delayed performance of the debt does not result in the loss of the claim, the creditor still possesses the claim to the debtor, and the benefit of the creditor's timely performance does not become a right independently, but is embedded in the claim itself, which destroys the benefit of the timely performance, although it affects the full play of the power of the claim, but it is not enough to make the creditor lose the possession of the claim. The damage to creditors is actually very minor. On the other hand, civil law is very adequate and effective for the use of fraudulent means to delay the performance of debts. Creditors may claim either fraud and delay in performance of previously agreed obligations, or, after avoidance, interest on late performance and damages for breach of contract. The modesty of criminal law does not mean that criminal law can not be used as long as there is civil law relief, otherwise all theft crimes can be without punishment-as long as the victim exercises the right of return claim in civil law. The modesty of criminal law means that when civil law can be effectively adjusted, there is no need for criminal law to intervene. Obviously, the civil law can effectively adjust the situation of fraudulently obtaining delayed performance of debts, so that the victim will not suffer irreparable losses. Therefore, the delay in the performance of the debt should not constitute a crime of infringement of property.

According to Article 240 of our Civil Code, the power of ownership can be divided into the following four categories: the right of possession, the right of use, the right of income and the right of disposition. There is basically no dispute over the infringement of the right of possession, the right of proceeds and the right of disposition, which constitutes a crime. The main debate in the academic circles is whether the infringement of the right to use should be regarded as a crime that violates the interests of property, such as stealing a car and returning it after using it, or taking advantage of the owner's absence to move into a house. In this regard, there are two opposing views on theft of benefits and theft of property. The theft of interests represented by Professor Li Hong holds that the use of theft is not the theft of the stolen property itself, but the theft of the use value of the property itself or the property interests generated by the use of the property itself. Because any kind of power, including the right to use, will cause infringement on the ownership itself; and, for high-value property, even if it is only used temporarily, it will cause a "large amount" of loss to the property of others. [9] Therefore, it is necessary to affirm that embezzlement of other people's property is a theft of property interests. The theft of property represented by Professor Zhang Mingkai believes that there is no problem of property possession and transfer of property interests. Those who embezzle other people's property should be directly regarded as theft of property, but only the use value of property is convicted and sentenced. [10]

Theft of property that abides by the constituent elements of theft, and advocates "transfer of possession" as the core to measure cases of theft of property interests. However, this view ignores the distinctive transfer possession attribute in the act of misappropriation. Stealing the car and driving it is actually depriving the owner of the right to use it during the embezzlement period and transferring it under his own control. Even more strictly, in accordance with the principle of possession of movable property, the act completely deprives the owner of ownership during the period of misappropriation and fully establishes his own ownership, but returns it to the owner after the misappropriation is over. It is obviously contrary to logic to think that there is no transfer of possession of property interests in misappropriation. The theft of interest theory characterizes the object of theft as use value, ignoring the source of its value. Use value is ultimately generated by the right to use the car or house. Only if you have the right to use it can you enjoy the value of use.

This paper holds that the use of theft is essentially the theft of the right to use, and, taking into account the fundamental attribute of theft "transfer possession", the use of theft should distinguish between movable property and real estate judgment. For those who embezzle movable property, such as embezzling a car, putting the car under their own possession, the appearance of the right has excluded the possession of the original owner. It should be considered that objectively it has transferred the ownership of the car at the same time, but subjectively it only has the intention of stealing the right to use, and objectively it finally returns the possession of the car, which is less damaging. Therefore, it only constitutes a crime for the loss of the right to use during the embezzlement. This point is consistent with the provisions of the judicial interpretation. The first item of Article 10 of the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft by the Chinese and Chinese Houses in 2013 stipulates that "if a motor vehicle is stolen and the vehicle is lost, it shall be convicted and punished for theft". Its intention is to show that the ownership of the vehicle is actually stolen at the same time when the vehicle is stolen. If it can be returned, it can be determined that the right to be stolen, however, if it cannot be returned in the end, it will be punished as theft for the complete ownership of the vehicle. However, for those who steal real estate, such as those who move into the villa without authorization while the owner is away, they should not be deemed to have stolen the right to use the villa. [11] Since immovable property objectively allows many people to move in, its right to use cannot be transferred, and does not exclude the original owner's possession of the right to use because one person moves in, it should not be punished as theft. If the perpetrator steals real estate, he may claim the return of unjust enrichment in civil law or the crime of illegal invasion of residence in criminal law.

Rights are the freedom given to man or not to a certain act under the legal order, therefore, the existence of rights is premised on the legitimacy of rights, rights that are not recognized by the legal order do not have the prerequisites for existence, and rights have and only when they are legitimate exist the value worthy of criminal law protection. For example, illegal debts such as gambling debts, buying drugs on credit, and paying for prostitution on credit are not legitimate, and the law does not recognize the possibility of their exchange, so they cannot be used as protection objects for crimes against property.

At the same time, the exchange of rights also needs to be legitimate, non-transferable rights can not participate in economic transactions, so they are not valuable. Taking creditor's rights as an example, does it constitute a crime to evade the payment of alimony and alimony between close relatives, which is of concern to criminal law scholars? "If it is considered that the act of escaping after eating or lodging is guilty of theft, if it is considered that the act of escaping after driving a vehicle on the highway is guilty of theft, it means that all acts of non-payment of debts are guilty of theft. Not only that, but if one party should pay child support but evades paying after the divorce of the couple, theft is also established." [12] However, article 545, paragraph 1, of the the People's Republic of China Civil Code provides that, depending on the nature of the claim, part of the claim may not be transferred. As a result, claims that are strongly related to personal relations, such as claims for maintenance and support, cannot be regarded as objects of protection for crimes of infringement of property because they cannot be transferred or exchanged. The act of evading the payment of alimony and alimony is distinguished by its exchangeability and the usual crime of evading the realization of a claim (e. g., evading a ticket after taking a taxi). From this, criminal law scholars often confuse the specific classification within the creditor's rights, and generally think that all claims can be used as the object of the crime of property infringement. However, claims include debts for services in addition to debts for property. For example, in the case of cheating a taxi, Party A and driver B agreed that Party B would drive a taxi. After arriving at the destination, Party A would run away, and Party A would steal the debt of Party B's property. The same again to cheat to pay the car rental example, A prepaid car, by the driver B to carry A to the destination, but B excuse refueling to escape, B whether the establishment of A's labor debt theft? The two seem to be the same, but according to the point of view of this article, the civil law generally believes that the labor debt and personal related, can not be transferred, can not become the object of protection of the crime of property infringement. Therefore, in the latter case, B does not establish theft, only on A's prepaid car money to establish fraud. Claims relating to persons cannot be the object of an offence against property, which is the same as the purport of the Supreme Court's guiding case. "Various 'contracts' and 'agreements' that are not subject to market adjustment, such as gift contracts that are not transactional in nature, and agreements related to identity relations such as marriage, guardianship, adoption, and support, labor contracts that are adjusted by labor law and administrative law, Administrative contracts, etc., should not be regarded as'contracts' in the crime of contract fraud under normal circumstances '." [13]

Similarly, the right of inheritance, because of its personal relevance, also does not have the exchangeability recognized by law, so through fraud, coercion and other means to make a will, infringement of the right of inheritance, before the realization of the right of inheritance does not constitute a crime of infringement of property. However, according to the second paragraph of Article 1,143 of the Civil Code of our country, the will must express the true meaning of the testator, and the will made by fraud or coercion is invalid. At the time of the realization of the right of inheritance, that is, after the death of the heir, the property has been inherited by the heir at this time. If the perpetrator inherits property through the use of fraudulent or coerced will, it is a crime of fraud to defraud the heir's property by fictitious facts.

It is necessary to affirm that property is objectively a tangible and disposable entity that exists before the law, and therefore its exchange is not limited to legal exchanges, as long as the possibility of exchange is normally natural. The exchange of contraband such as drugs is of course illegal in law, but it is undeniable that it has high economic value and can be exchanged for huge amounts of money. Property interests are not the case, the existence of property interests is only a normative fiction, and the possession of its concept can only be stable in legal circumstances, so the exchange of property interests must be based on the legality of property interests themselves.