The crime of "占有離脱物横領罪" (embezzlement by taking away an abandoned object) and the crime of "窃盗罪" (theft) both involve taking another person's property as one's own, but they have significant differences in their elements and penalties. In this article, we will use the case of a police sergeant losing his uniform and a man taking it home, resulting in an arrest for embezzlement, to explain the differences between these two crimes.
First, "占有離脱物横領罪" refers to a crime where one takes possession of an object that has been abandoned by its owner. It is defined under Article 254 of the Penal Code and carries a punishment of up to one year of imprisonment, a fine of up to 100,000 yen, or a combination of both. For instance, if someone picks up a wallet they found on the street or keeps excess change mistakenly given at a store's checkout, it could qualify as this offense. This crime is characterized by the absence of a consignment or trust relationship with the owner. A consignment or trust relationship refers to situations where an owner temporarily entrusts possession to someone else, such as when depositing luggage or lending items.
On the other hand, "窃盗罪" is the crime of taking another person's property that is currently under their possession. It is defined under Article 235 of the Penal Code and carries a punishment of up to ten years of imprisonment, a fine of up to 500,000 yen, or a combination of both. For example, stealing a bicycle or a wallet directly from the owner falls under this offense. What distinguishes theft is the intent to exclude the owner's possession. This means having the intention to take control of the object in a way that the owner is practically unable to exercise control over it.
From this, it can be concluded that "窃盗罪" is a more serious offense compared to "占有離脱物横領罪". However, in practice, the distinction between the two can be quite subtle, as seen in real cases. For instance, in the case of the police sergeant losing his uniform, the uniform isn't the sergeant's personal property. The uniform is provided to the sergeant as a public servant according to Article 19, Paragraph 1 of the National Public Service Act, and there is an obligation to return it under Article 19, Paragraph 2. In this situation, the uniform is temporarily in the possession of the police sergeant and can be considered to involve a consignment or trust relationship with the state. As a result, the man who took the uniform home was arrested for "占有離脱物横領罪".
However, what if the uniform was the sergeant's personal property? In that case, the uniform would be under the sergeant's continuous possession, and if the man took it with the intention to exclude the sergeant's possession, it could potentially constitute theft ("窃盗罪"). Thus, the distinction between embezzlement and theft can vary based on factors such as the relationship between the owner and possessor of the object and their intentions.
"占有離脱物横領罪" and "窃盗罪" are crimes that can occur in everyday life. Understanding their differences is important for protecting your own belongings. Moreover, acquiring someone else's property dishonestly is not only against the law but also morally unacceptable. Taking responsibility for one's actions and making ethical decisions are crucial.