Rethinking Unauthorized Temporary Use of Other’s Property from the Perspective of Anglo-American Property Offences: Taking Share Economy as an Example
Date Issued
2016
Date
2016
Author(s)
Chen, Yen-Ron
Abstract
Property offences are correlated with the concept of “property,” thus might be interpreted differently from time to time. Take “share economy (sharing economy)” as an instance. Some assert that under this type of economic system, modern consumers do not value ownership as much as they used to, since ownership has become less significant as property utilization goes. Does this have an effect on the means of property protection by criminal law? Does it in any way impact one of the primordial crimes of Western culture, larceny——especially Furtum usus (temporary unauthorized use of other’s property)? This is what this thesis strives for. Up till Larceny Act of 1916, United Kingdom has always adopted the concept of “larceny,” however, it was superseded by the concept of “theft,” which was introduced in 1968. According to Theft Act of 1968, “appropriation” element works as a solvent, enabling “theft” to absorb other property offences. Therefore, the first half of this thesis mainly focuses on offences relating to larceny——especially on the elements “appropriation” and “with the intention of permanently depriving the other of it” ——as a reference. After verifying that ownership is the interest protected by larceny, this thesis construes that the essence of Furtum usus is “stealing intangible interest,” since Furtum usus implies unlawful acquisition of other’s intangible interest through unauthorized use of other’s tangible property. Also, because property ownership is a demonstration of free will, criminal law establishes its boundary of intangible interest protection on situations wherein free will is somehow oppressed. Thus, Furtum usus being unpunished remains justifiable even in modern days. Subsequently, this thesis deliberates over the purpose and function of “die Zueignungsabsicht,” an element of larceny in Taiwan, and keeps the spirit of Substanztheori while interpreting larceny. As for share economy in modern capitalist society, it does not alter this conclusion. Share economy is merely a platform which efficiently connects supply and demand in the market, facilitating the process of seeking better and cheaper products and services. “Access” is the key notion, not “sharing” itself. The so-called “share economy” is actually driven by Neoliberalism, which advocates free market with less government regulation, and does not challenge the system of private property. Furthermore, even though some visualize future human society as a truly sharing one——in which the right to access to public resources is the most fundamental property right——contemporary society is not yet in the position of replacing “right to (own) property” with “right to access.” It could be argued that it is time to reconsider criminalizing Furtum usus, but hindering other’s plan of “sharing” is not a justifiable reason to do so. Furtum usus is still, and should remain unpunished.
Subjects
Anglo-American property offences
larceny
theft
temporary unauthorized use of other’s property (Furtum uses)
die Zueignungsabsicht
Substanztheorie
share economy (sharing economy)
SDGs
Type
thesis
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