拾得遗失物与盗窃罪界限研究

Research on the Demarcation Line between Picking up the Lost Articles and Larceny

在司法实践中拾得遗失物与盗窃罪的界限容易模糊,行为人非法窃取有保管义务人的遗失物应认定盗窃 罪,拾得真正遗失物拒不返还应构成侵占罪。拾得支票、存折等证券进一步支取行为应具体分析,当银行对支票、存 折没有实质审查义务时,应构成盗窃罪,当银行对支票、存折有实质审查义务时,应构成诈骗罪及盗窃罪的想象竞合 犯,从一重罪处断。

In the legal practice,the demarcation line between picking up the lost articles and larceny is easy to blur.the person who illegally steals the custodian's lost articles is to be accused of larceny;the person who return to returen the lost articles commits disseizin.In the case of picking up checks or passbooks and thereafter withdrawing money from them,we should make a concrete analysis of concrete conditions.When the bank is not obliged to examine the checks or passbooks,the act constitutes larceny;when the bank does be obliged,the act is supposed lo have commited both larceny and frauding,and the penalty is to be imposed by reference to the more serious crime of the two.