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Study on the Overlapping Issue of Unjust Enrichment and Offense of Misappropriation

Author: WangJun
Tutor: ChenHang
School: Lanzhou University
Course: Legal
Keywords: unjust enrichment offense of misappropriation the relationship between civil law and criminal law handling mechanism
CLC: D924.3
Type: Master's thesis
Year: 2009
Downloads: 325
Quote: 1
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Abstract

Unjust enrichment of Civil Law is the fact there is no legal reason for gains and for resulting in the loss of others. According to China’s Criminal Law, offense of misappropriation is a crime that actor takes possession of property, misplaced property or hidden property in the custody of him and refuses to return or hand it over for the purpose of holding the possession. Compared with other criminals, its main characteristics is that before the adoption of crime the actor has been holding the victim’s property through some legal relation, which means that he sets others’ property occupied by him as a target of crime. Can an unjust enrichment is to induce an offense of misappropriation coinciding with its definition? That is a controversial issue in judicial practice. This thesis held an opinion that the overlappig of the criminal and the civil ,which is the inevitable result of the division of labour among Sector Act and the overlapping between civil law and criminal law and overlappig among legal obligations, is an objective phenomenon in judicial practice. We should discard this false concept that the criminal and the civil are independent and re-examine this overlapping issue between unjust enrichment and offense of misappropriation from the point of view of the criminal’ and the civil’s coincidence. The paper adopted case analysis and comparative method to study. Starting with the controversial focus in the judicial practice, firstly, it identified unjust enrichment and offense of misappropriation, reasonably defined them. Then it studied the essence of the overlapping of unjust enrichment and offense of misappropriation. Based on the privious study, it probed into the concrete forms of those to the types of unjust enrichment as the starting point. Finally, from the perspective of procedural law, it raised a coping mechanism when claims of unjust enrichment civil liability coexist with criminal liability of misappropriation.The text is divided into the following five parts:Part one outlined the overlapping issue of unjust enrichment and offense of misappropriation. This section indicated the essence of difference that the possibility of unjust enrichment constitutes a misappropriation of the possession in its essence on those problems reflected in some representative cases of the judicial practice. The author believed that the overlapping phenomenon of unjust enrichment and misappropriation is an objective existence. A legal fact would be both unjust enrichment and offense of misappropriation on condition that this fact is not only in line with the elements of unjust enrichment but also that of misappropriation. This part also briefly introduced the current situation of the issue and the path of research of the article. Part two identified unjust enrichment and offense of misappropriation. It explored those definitions and components of unjust enrichment and offense of misappropriation and types of unjust enrichment. In particular, it analysed the significance of subjective aspects to overlapping between unjust enrichment and offense of misappropriation. The subjective factors of the malicious unjust enrichment, because of their impact on offense of misappropriation caused offense of misappropriation involvement in the composition. Part three presented the essence of overlapping between unjust enrichment as a lawful fact and offense of misappropriation. This part studied this overlapping problem of unjust enrichment and offense of misappropriation from its nature. The overlapping between civil law and criminal law, which is an inevitable result of coincidence among Sector Act, is an objective existence. The essence of overlapping between unjust enrichment as a lawful fact and offense of misappropriation is the overlapping between civil law and criminal law and the coincidence of legal obligations. Part four disscussed the concrete forms of overlapping between unjust enrichment and offense of misappropriation. With different types of unjust enrichment as the starting point, this secotion studied the forms of overlapping between unjust enrichment and offense of misappropriation. It included the paid unjust enrichment and offense of misappropriation, the unjust enrichment without payment and offense of misappropriation, special unjust enrichment and offense of misappropriation. Part five put forward a coping mechanism when claims of unjust enrichment civil liability coexist with criminal liability of offense of misappropriation, taking law and regulation of our country as the starting point.

Study on the Overlapping Issue of Unjust Enrichment and Offense of Misappropriation

Abstract

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