The first chapter first defines the concept and characteristics of the act of impersonating the right holder to embezzle property. In short, the act of impersonating a right holder to misappropriate property for the purposes of this chapter refers to the act of impersonating a right holder and disposing of another person's property to a third party in the capacity of a right holder in order to obtain equivalent property from a third party. This behavior is characterized by both objective and subjective aspects:
Objectively, the perpetrator has shown that he or she has the right to dispose of a certain property; As a result, the property interests of the right holder move to the third party, and the property interests of the third party move to the behavior. SubjectivelyThe perpetrator not only has the intention of illegally taking possession of the property of a third party, but also has the intention of transferring the property of the right holder to the possession of a third party.
This kind of misappropriation of property can easily lead to the application of the right appearance system set up in civil law to protect bona fide third parties, so that the handling of criminal cases and the application of civil law are intertwined, and a series of disputes arise therefrom. In order to correctly resolve the relevant disputes, it is necessary to have an in-depth understanding of the specific systems and rules for the appearance of rights in civil lawThereforeChapter 1 then discusses what kind of civil rules should be applied to the actor to deceive a third party in different impersonation names, as well as the connotation, purpose and specific system of rights and appearance liability in civil law
Keywords] impersonating the right holder to embezzle property; appearance of rights; Steal; Swindle.
"Misappropriation of property by impersonating a rights holder" refers to the actor pretending to be a subject who has the right to dispose of a certain property and negotiating with an unwitting third party about the property of others, and the third party delivers his own property to the actor in order to obtain the property rights or extinguish the debt. At the same time, the perpetrator will transfer the property rights of the impersonating subject to a third party. In short, this type of behavior refers to the actor impersonating the right holder and transferring the property of another person to a third party in the capacity of the right holder in order to obtain equivalent property from the third party
This type of case involves three parties, i.e., the respondentImpersonate the subject (i.e., the real owner of the property transferred by the actor).PerpetratorsA third party who has been deceived into delivering property to the perpetrator。The peculiarity of this type of case lies in the fact that the actor not only obtains property from a third party through fraudulent acts, but also has the intention of infringing on the property of the right holder, and is objectively able to transfer the property of the right holder to a third party, resulting in an improper flow of property interests between the right holder, the actor and the third party. Such cases often trigger the application of the rules on the appearance of rights in civil law, so that the third party retains the property rights and interests that belong to the right holder, so that its property as a whole is not damaged. At this time,The property damage in criminal law is questionable, which gives rise to qualitative disputes.
It is necessary to make it clear that the perpetrator only pretends to be the right holder who has the right to dispose of a certain property for the purpose of defrauding a third party's property, but in fact, he does not intend to infringe on the right holder's property, and objectively cannot transfer the right holder's property to a third party to all the fraud, which only constitutes the crime of fraud against a third party. Since this act will not infringe on the property of the right holder, thereforeThere will be no dispute over whether it is against the right holder or a third party for embezzlement, so it does not belong to the act of impersonating the right holder to embezzle property discussed in this article
(1) Objective aspects
This type of case occurs because a third party erroneously believes that the actor with whom it has a transaction has the right to dispose of a certain property, so it pays consideration to the actor to obtain the property interest under the right holder. Therefore,This type of property misappropriation is characterized by the appearance that the perpetrator has the right to dispose of a certain property, which may resultIt has led to the application of the appearance of rights system set up in civil law to protect bona fide third parties, thus giving rise to disputes in criminal law over who is the victim of the case
The perpetrator may be mistaken by the outside as the owner of the movable property or the immovable property is registered in his name; or by forging identity documents, power of attorney, etc., to pretend that they are the owner of something or the person entrusted by them who has the right to dispose of the thing. The former is called the appearance of the thing; The latter is called the appearance of a person. In the former, the perpetrator may directly deceive a third party in his own name; In the latter, the perpetrator is required to negotiate with a third party in the name of the impersonatorAlthough the apparent basis of the rights of the two is different, they both show the false impression that the perpetrator has the right to dispose of a certain property.
This type of case is manifested in the actor and a third party conducting a paid transaction on the property of the right holder, the property obtained by the actor from the third party is the transaction consideration paid by the third party, and the actor transfers the property of the right holder to the third party as the so-called considerationAs a result, the property interests of the right holder move to the third party, and the property interests of the third party move to the act. In practice, this paid transaction is usually a sale and purchase of ownership transfer.
2) Subjective aspect.
Subjectively, the perpetrator not only has the intention of illegally taking possession of the property of a third party as his own, but also has the intention of transferring the property of the right holder to the possession of a third party. However, the perpetrator transfers the property of the right holder to a third partyThe subjective purpose is to obtain consideration paid by a third party for the transaction
Areas of PracticeMs. Chen Dandan's main areas of practice are civil and commercial dispute resolution (contract disputes, labor and personnel disputes, marriage and family disputes, etc.), corporate perennial legal counsel, criminal defense and other businesses.
Mr. Chen graduated from Southwest University of Political Science and Law and East China University of Political Science and Law with a master's degree in law.
Since practicing law, Mr. Chen has focused on the field of civil and commercial dispute resolution, and has accumulated rich litigation experience, specializing in handling contracts, labor and personnel disputes, marriage and family disputes, etc. Mr. Chen's style of handling cases is meticulous, and he is able to grasp the overall situation of the case, pay attention to the details of the case and seek breakthroughs, so as to strive for the best interests of the client to the greatest extent.
Mr. Chen also has rich experience in the company's perennial legal counsel business, providing contract review and drafting, daily legal advice and advice, issuing lawyer's letters and legal opinions, corporate governance, transaction negotiation and other services for many enterprises.