Zhang, a female college student in Hefei, Anhui Province, recently lost her mobile phone while dining out, and with the help of **, she got in touch with the man who found the mobile phone, Geng, and did not think that the other party proposed that Zhang must pay 2000 yuan to "buy" in order to return the mobile phone, otherwise it will be brushed. The two sides reached a stalemate, and the matter caused heated discussions in the society. Many people condemned Geng's actions, but some people believed that Zhang should give Geng a certain amount of compensation. In daily life, it happens that other people's belongings are lost or found from time to time, and some people will contact the owner to return them, and some people will have the idea of taking them for themselves, asking for a high amount of money, or asking for compensation without malicious damage. So, can you keep the lost property yourself?What are the legal consequences of refusing to return it?
Question 1: Can I keep something I have when I pick it up?
For this topic, first of all, it is necessary to explain and define the lost property. 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 another person, it is ownerless and the picker will take ownership by "preemption";Thirdly, the loss of possession of the object by the original owner or possessor means that the original possessor 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 China's 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 China's legislation has established that the lost property should be returned to the right holder, and the lost property does not apply to the doctrine of ownership, which is in line with the moral spirit of "finding gold without ignorance" and "leaving no road behind" advocated by China's traditional culture 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 the plan provided by Geng asked "Zhang to spend 2,000 yuan to buy a mobile phone", which is nonsense.
Question 2: What are the legal consequences of refusing to return it?
The owner wants to return the lost property, but the finder refuses to return it, what kind of legal consequences will the finder face?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.
Question 3: How can the owner get the lost property back?
As mentioned above, 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 to 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 understand it from the cases in practice. In February this year, Li lost a mobile phone when handling business, and found that the mobile phone was found by Liu after calling 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.
Question 4: 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 for 2,000 yuan to return Zhang's mobile phone has no legal basis and even seems absurd. 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.
Question 5: Does the garbage can always go to the person who picked it up?
Garbage is a misplaced resource", what has lost its value to the original owner may be something that is needed by others, and picking up waste can effectively play the role of the object to a certain extent, but it is also necessary to beware of legal disputes.
Unlike lost property, abandoned property is movable property that the original owner has abandoned by its act or appearance with the intention of relinquishing ownership. Abandonment is a unilateral civil juristic act that does not require the counterparty to receive it, and it is established once it is made, whether it is expressed or implied. With the act of abandonment, the original owner loses ownership of the object, and the abandoned object becomes ownerless. In short, if the discarded thing is found, it is something that no one else wants, and according to the current civil law theory, everyone can acquire the ownership of the unclaimed property by preemption.
Abandoned and lost items lead to very different legal effects. The key to picking up a "windfall" is to know whether it is a lost item or a discarded item. For the definition of discarded objects, the following conditions shall be met: first, the perpetrator of abandonment enjoys the ownership of the discarded objects in accordance with the law;Second, because it involves the disposition of real rights, the actor needs to have the corresponding civil capacity;The third is that the expression of the intention to abandon needs to be true. The above conditions are the prerequisites for the extinction of property rights.
In real life, it is also necessary to reflect whether the person has the intention of real abandonment. Due to the complexity of the actual situation, the following factors can be combined to assist in judgment: First, the place where the item is found, such as the contents of the garbage bin, is usually actively discarded;Second, the economic value of the item, such as discarded plastic bottles and waste cartons, can be presumed to be discarded due to their low value and large quantity, and the larger value may be thrown or lost by mistake;Third, the exclusivity of the item, such as the engraved jewelry, has the exclusivity of a specific owner. Because it is difficult to exhaust all circumstances, it is necessary to consider comprehensively and make an objective determination. For example, if A picks up a diamond ring on a shelf in the gym, the ring is lost and A cannot prevaricate by "thinking it's a discarded object that no one wants".In addition, if A finds a diamond ring in the trash can, and B asks for it to be returned with the proof of purchase, A should return it, and the ring is also a lost item.
In short, "collecting gold" is not only a traditional virtue, but also a legal rigid form to affirm it. If we find more valuable items in **, we need to pick them up carefully to avoid disputes. When it is difficult to distinguish between lost and discarded items, it is generally more reasonable to presume that they are lost. Treating items accidentally lost by others as a windfall from heaven and taking them for oneself is a temptation on the verge of breaking the law and committing crimes, and will only be morally condemned and severely punished by law.
This article was originally published in the 14th edition of Beijing** on December 13, 2023.
Contributed by: Fengtai Court.
Editor: Hu Haojie Guo Jin.
Review: Wang Fang.