[case]

What is the crime of picking up the luggage tag, taking away the luggage and depositing the luggage

On October 28, 2006, Li picked up a luggage storage tag near Guilin railway station. Li learned that the tag was the tag of a luggage store next to the railway station, so he tried to take the tag to the store. After seeing the tag, the owner handed a luggage bag to Li. The bag is actually owned by Mr. Jiang. It contains a laptop, a Kuaiyitong and a digital camera, with a total value of more than 12800 yuan. After Jiang reported the case, Li was arrested soon.

[dispute]

There are mainly three opinions on how to determine the nature of the defendant Li's behavior

The first opinion is that if there is no personal mark on the luggage custody card, Li's picking up the card is equivalent to picking up the corresponding goods, and his behavior should constitute the crime of embezzlement.

The second opinion is that Li's use of the luggage custody tag to pick up the bag was carried out without the owner's knowledge, and it was stolen by secret means, which constituted the crime of theft.

The third opinion is that Li used the luggage custody tag to pick up the bag and concealed the fact that he was not the owner of the bag, which belongs to the situation of concealing the truth and making up the facts, and his behavior constitutes the crime of fraud.

Formula [comment and analysis]

The author agrees with the third opinion. The reasons are as follows.

The crime of embezzlement belongs to the crime of infringing property rights, and the crime of embezzlement is the behavior of the actor illegally occupying other people's property. As a voucher for taking bags, the luggage custody card does not have any personal marks. In general, it is to take bags at sight of the card. However, picking up the luggage custody card does not mean getting the property represented by the luggage custody card. Although the luggage custody card has a certain connection with the property, it is actually a voucher for recording the bag, It is not equal to property in itself. If it is to be transformed into property, further actions must be taken, that is, to take out the bag by using the luggage custody tag. Therefore, Li picked up the luggage custody card does not mean that he picked up the property represented by the luggage custody card. It also needs a cashing process to obtain the property, and the premise of the crime of embezzlement is that the actor directly obtained and occupied the property. In addition, in this village, the lost luggage tag outside the railway station is a lost property rather than a forgotten property, so Li's behavior does not constitute a crime of embezzlement.

The "secret stealing" in larceny refers to the method that the perpetrator secretly steals the property by thinking that it will not be discovered by the owner, keeper or handler of the property. In this case, although Li's behavior of picking up the bag by using the luggage custody tag is not known to the owner, that is, relative to the owner Jiang, Li's behavior is secret, but at this time, the bag is not under the control of Jiang, but under the control of the storekeeper of the deposit shop, that is, Li's behavior of picking up the bag is not secret to the storekeeper of the deposit shop. Therefore, Li's behavior does not conform to the characteristics of secret theft in theft, and his behavior does not constitute theft.

In the objective aspect, the crime of fraud shows that the perpetrator uses the method of fabricating or concealing the truth to make the owner and manager of the property have a wrong understanding, believe it as true, and voluntarily hand over the property. There is no personal mark on the luggage storage card. The keeper of the deposit shop is the person who recognizes the card but does not recognize it. He has no obligation to examine the real identity of the Licensee. On the surface, there is no cheating on the keeper when the bag collector is inconsistent with the bag depositor. However, as a kind of voucher for bag storage and retrieval, the baggage storage tag means that the depositor and the reclaimer should be consistent in principle, so as to ensure that the wrong claim and loss will not occur. Therefore, when the bag collector is not the original depositor, the behavior of the bag collector is a kind of false claim. Although the depositor does not have the obligation to examine the real identity of the bag collector, in essence, the false claim behavior of the bag collector cannot be changed. In fact, it is a kind of deceptive behavior to conceal the truth from the depositor. In this case, Mr. Li concealed the fact that he was not the depositor when taking the bag, which made the depositor mistakenly think that Mr. Li holding the luggage custody tag was the owner of the bag and gave it to him. Therefore, with the intention of illegal possession and the method of concealing the truth and making up the facts, Li's act of taking out the bag completely conforms to the characteristics of the crime of fraud, so he should be convicted and punished with the crime of fraud.