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(ISSN
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Published:
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‘
ABSTRACT
The objective side of theft is characterized by three actions: 1) the seizure of someone else's property,
or 2) the circulation of someone else's property in favor of the culprit or other persons, or 3) the
seizure and circulation of someone else's property in favor of these persons.
KEYWORDS
Theft, the way (method) of committing a crime, secretly, property, pickpocketing, the objective side
of the crime, criminal act, consequence, causal link.
INTRODUCTION
Given the widespread occurrence of thefts and
the significant total amount of damage caused
by them, it is advisable to pay special attention
to the criminal-legal characteristics of this
crime.
The object and the subject of theft do not
possess any peculiarities in comparison with
the object and the subject of theft in general.
It is possible to make some distinctions
between the object of theft and the object of
Legal Analysis Of The Theft And Its Objective Side In
Uzbekistan And India: National And Foreign Experience
F.Kh. Khudaykulov
Lecturer, Department Of Criminal Law, Criminology And Anti-Corruption Of Tashkent State
University Law PhD In Law, Uzbekistan
Dr. Divyashree
Asst Professor, School Of Criminology And Behavioural Science Rashtriya Raksha University
Lavad, Dahegam, Gandhinagar, Gujarat, India
Journal
Website:
http://usajournalshub.c
om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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related crimes. Theft basically encroaches only
on property crimes, in contrast to robbery,
robbery, which at the same time can
additionally encroach on the life or health of
the victim. If we consider the crime of
misappropriation or embezzlement, then it
additionally affects the interests of the
organization in which the offender works, that
is, official interests.
Since the object of theft is the property of a
citizen, which can be expressed in monetary
terms, it is necessary to correctly calculate the
amount of damage caused to the victim. In the
case of continued theft by theft, when
property is stolen from one source in several
steps with the intention of the culprit to
commit theft on a large scale as a result, the
value of all stolen property should be summed
up to determine the amount of theft. If one
person committed several thefts from
different sources, when for each criminal act,
the intention of the perpetrator to commit
theft on a large scale was formed, the value of
all the stolen property should be summed up to
determine the amount of theft. When a group
of persons commits a theft by prior conspiracy
or by an organized group, the amount of the
theft is determined by the value of all the
stolen property. If the size of the stolen is large,
then all participants in the theft are liable for
committing the theft on a large scale.
DISCUSSION
The objective side includes an action (unlawful
gratuitous seizure and circulation of someone
else's property in favor of the culprit or other
persons), the consequence (property damage
in the form of loss of property caused to the
owner or other owner of this property), a
causal relationship between them, as well as a
method - theft should be secret.
An obligatory sign of the objective side of theft
is the illegality of the seizure and its
gratuitousness. Unlawfulness means that the
perpetrator is not the owner of the property,
did not have a legal right to seize the property
and turn it in his favor, was not authorized to
do so. In this regard, there is no composition of
theft if the person has legal grounds to receive
the property seized by him, but violated the
procedure for obtaining it. The gratuitousness
of the seizure of property is characterized by
the fact that the owner does not receive the
necessary equivalent in the form of socially
useful labor or reimbursement of the value of
the object of theft for the property retired
from his possession. Partial reimbursement of
the value of the seized property does not
exclude liability for theft.
The objective side of theft is expressed in
actions through which a person secretly steals
someone else's property. The peculiarity of
theft, which makes it possible to distinguish it
from appropriation, waste and other forms of
theft, consists in the way it is committed. When
theft is committed by theft, the perpetrator is
not endowed with any powers in relation to
the property; he illegally and gratuitously
seizes it against the will of the owner. The
seizure of property by a person who does not
have the authority to dispose, manage, deliver
or store this property should be classified as
theft, even if the perpetrator had access to it in
connection with the assigned work.
According to the article 169 Criminal Code of
Uzbekistan theft, that is larceny in secret – shall
be punished with fine up to fifty minimum
monthly wages, or correctional labor up to two
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years, or arrest up to six months, or
imprisonment up to three years.
Theft committed: а) from the clothes, bag, or
other personal belonging, carried by the victim
(pickpocketing); b) in large amount; c) by
previous concert by a group of individuals; d)
with illegal entering a dwelling, depositary or
other premise – shall be punished with fine
from three hundred minimum monthly wages,
or correctional labor from two to three years,
or imprisonment from three to five years.
Theft committed: а) repeatedly or by a
dangerous recidivist; b) with unauthorized
entering a computer system; c) in large amount
– shall be punished with imprisonment from
five to eight years.
Theft committed: а) in large amount; b) by a
special dangerous recidivist; c) by an organized
group or in its interests – shall be punished with
imprisonment from eight to fifteen years
Thus, theft should be considered secret in the
following cases:
1)
Property is seized in the absence of the
owner, other owner of the property,
persons obliged to act in their interests (for
example, security guards), and outsiders;
2)
Property is seized, although in the
presence of these persons, but unnoticed
by them (for example, in case of
pickpocketing);
3)
The property is seized, although in the
presence of these persons, but the
perpetrator expects that they do not
understand the nature of his actions. For
example, theft of building materials from
the construction site, if the perpetrator
expects that the workers present will not
pay attention to the loading and removal of
these materials or they will consider these
actions lawful, theft in the presence of a
child who, due to his youth, does not
understand that a theft is taking place;
4)
The property is seized, although in the
presence of these persons, but the
perpetrator mistakenly believes that he is
acting secretly (he did not notice the
persons present or expects that these
persons will not notice his actions or do not
realize the nature of these actions).
When establishing the secrecy of theft, it is
necessary to take into account the nature of
the relationship between the offender and the
persons present at the commission of the
crime.
However, the last provision requires some
clarification:
a)
Theft remains secret even in the case when
not only close relatives, but also other
relatives, in-laws, roommates, grooms,
brides, accomplices, neighbors, friends,
acquaintances, etc. are present during its
commission. Only two conditions are
necessary for the recognition of the
presence of the factor of secrecy: first, due
to any life relationship, this person is not an
outsider for the guilty person; secondly,
the perpetrator expects that, due to these
circumstances, the deed will be kept
secret;
b)
The requirement to stop unlawful actions
does not in itself turn theft into robbery.
For example, such demands from those
close to the perpetrator may be motivated
solely by concern for the personal safety of
the offender. If at the same time, the
criminal expects that the deed will be kept
secret; there are no grounds for qualifying
the theft as open.
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Under certain circumstances, secret theft
(theft) can develop into open theft - robbery or
robbery. Therefore, "if in the course of the
theft the actions of the perpetrator are
discovered by the owner or other owner of the
property or other persons, but the perpetrator,
knowing this, continues to commit illegal
seizure of property or its retention. The deed
should be qualified as robbery and in the case
of the use of violence that is life-threatening or
health, or the threat of using such violence - as
robbery»
If, when committing theft, the act is discovered
and the perpetrator, leaving someone else's
property, simply tries to hide and even uses
violence for this purpose. Theft does not
develop into robbery and robbery, the deed is
qualified as an attempt to steal, and the use of
violence - as a crime against the person or
against order management (depending on
who it is applied to).
If at the time of appropriation the property had
already been removed from the possession of
the victim (for example, it was lost), the deed
cannot be qualified as theft. The current law
does not provide for criminal liability for the
misappropriation of property found or
accidentally found by a person [1, P. 608].
Since theft is a crime with a material
composition, the moment of its end must be
associated with the onset of consequences in
the form of direct damage to the owner or
other owner of the property. Theft is
recognized as a completed crime not at the
moment when the intent to seize someone
else's property is fully realized, but when the
perpetrator has received a real opportunity to
use and dispose of the stolen goods. If the
opportunity to dispose of the stolen property
did not really exist, the deed must be qualified
as an attempted theft [2, P. 10].
The subject of theft can be a sane person who
is guilty of a socially dangerous act and is able
to bear criminal responsibility for it in
accordance with the law. It follows from this
that the subject of a crime must have the
following characteristics: firstly, sanity and,
secondly, reaching the age of criminal
responsibility.
According to the article 17 Criminal Code of
Uzbekistan, individuals aged fourteen years or
above at the moment of commission of a crime
shall be subject to liability for the crimes
envisaged by Paragraph 1 of Article 97, Articles
98,
104 – 106, 118, 119, 137, 164 – 166 and 169.
Paragraphs 2 and 3 of Article 173, Articles 220,
222, 247, 252, 263, 267 and 271, Paragraphs 2
and 3 of Article 277 of this Code.
Basic definition of theft in England
.
1)
A person is guilty of theft if he dishonestly
appropriates
property
belonging
to
another with the intention of permanently
depriving the other of it; and “thief” and
“steal” shall be construed accordingly.
2)
It is immaterial whether the appropriation
is made with a view to gain, or is made for
the thief’s own benefit.
3)
The five following sections of this Act shall
have effect as regards the interpretation
and operation of this section (and, except
as otherwise provided by this Act, shall
apply only for purposes of this section).
Theft
. A person guilty of theft shall on
conviction on indictment be liable to
imprisonment for a term not exceeding seven
years [1].
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Section 322(1) of the Criminal Code provides
the general definition for theft in Canada:
322
.
(1) Every one commits theft who fraudulently
and without colour of right takes, or
fraudulently and without colour of right
converts to his/her use or to the use of another
person, anything, whether animate or
inanimate, with intent
(a)
To deprive, temporarily or absolutely, the
owner of it, or a person who has a special
property or interest in it, of the thing or of
his property or interest in it;
(b)
To pledge it or deposit it as security;
(c)
To part with it under a condition with
respect to its return that the person who
parts with it may be unable to perform; or
(d)
To deal with it in such a manner that it
cannot be restored in the condition in
which it was at the time it was taken or
converted [2].
Article 2 of the Theft Ordinance provides the
general definition of theft in
Hong Kong
: (1) A
person commits theft if he dishonestly
appropriates property belonging to another
with the intention of permanently depriving
the other of it; and thief and steal shall be
construed accordingly. (2) It is immaterial
whether the appropriation is made with a view
to gain, or is made for the thief’s own benefit
[3].
Theft is a criminal activity in India with
punishments which may lead to jail term.
Below are excerpts of laws of
INDIAN PENAL
CODE
which state definitions and punishments
for theft.
•
Section 378 –
Theft
.
Whoever intending to take dishonestly any
movable property out of the possession of any
person without that person’s consent, moves
that property in order to such taking is said to
commit theft. Explanation 1.—A thing so long
as it is attached to the earth, not being
movable property, is not the subject of theft;
but it becomes capable of being the subject of
theft as soon as it is severed from the earth.
Explanation 2.—A moving effected by the
same act which effects the severance may be a
theft. Explanation 3.—A person is said to cause
a thing to move by removing an obstacle which
prevented it from moving or by separating it
from any other thing, as well as by actually
moving it. Explanation 4.—A person, who by
any means causes an animal to move, is said to
move that animal, and to move everything
which, in consequence of the motion so
caused, is moved by that animal. Explanation
5.—The consent mentioned in the definition
may be express or implied, and may be given
either by the person in possession, or by any
person having for that purpose authority either
express or implied [4].
Section 379 – Punishment for theft. Whoever
commits theft shall be punished with
imprisonment of either description for a term
which may extend to three years, or with fine,
or with both [5].
Section 380 – Theft in dwelling house, etc.
Whoever commits theft in any building, tent or
vessel, which building, tent or vessel is used as
a human dwelling, or used for the custody of
property, shall be punished with imprisonment
of either description for a term which may
extend to seven years, and shall also be liable
to fine [6].
Section 381 - Theft by clerk or servant of
property in possession of master.
Whoever, being a clerk or servant, or being
employed in the capacity of a clerk or servant,
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commits theft in respect of any property in the
possession of his master or employer, shall be
punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to fine [7].
Section 382 – Theft after preparation made for
causing death, hurt or restraint in order to the
committing of the theft.
Whoever commits theft, having made
preparation for causing death or hurt, or
restraint, or fear of death, or of hurt, or of
restraint, to any person, in order to the
committing of such theft, or in order to the
effecting of his escape after the committing of
such theft, or in order to the retaining of
property taken by such theft. shall be punished
with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable
to fine [8].
Establishing a lowered age of criminal
responsibility in relation to persons committing
thefts, the legislator, I believe, proceeded,
first, from the fact that the social danger of
these acts is quite understandable for
adolescents and there are minors among those
committing crimes against property rights.
However, criminal legislation and law
enforcement practice strive, first, to reeducate
minors, even those who have violated the law.
Criminal punishment is applied to them only
when a dangerous crime is committed, when it
can be concluded from the adolescent's past
behavior that he can really be corrected and re-
educated only through criminal punishment. In
less dangerous cases, educational measures
are widely used.
In addition to legal signs, social, moral, ethical
and professional characteristics are of great
importance in assessing the personality of the
culprit, which make it possible to see in the
offender not only an abstract “subject of a
crime”, but also a living person in all the
complexity of his mental properties. It is the
analysis of these characteristics of the
individual as a whole that makes it possible to
correctly resolve the issue of individualization
of responsibility and punishment, deeply and
comprehensively understand the reasons and
conditions that gave rise to this crime, and
outline the actual preventive measures.
Under the criminological characteristics of a
person, it is customary to understand the
totality of data on the criminal law, socio-
demographic and moral-psychological qualities
of a person who has committed a crime.
The application of criminal law measures to
persons who have committed a crime involves
not only establishing the characteristics of the
subject of a crime, but also taking into account
certain personality traits. These data are widely
used in constructing qualified corpus delicti
and in sentencing.
The subjective side of theft involves a direct
intent to seize someone else's property. The
direction of intent in theft is determined by
selfish motives and goals.
Today, the full protection of the rights and
freedoms of citizens is everyone is one of the
most important tasks of the state [9].
Every country measures to ensure the security
and inviolability of its borders have the right to
see [10.]
As for the selfish motive, its essence consists in
the desire of the guilty to satisfy his material
needs at someone else's expense by seizing
property to which he has no right. A selfish goal
takes place both in cases of turning someone
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else's property in favor of the guilty person,
and in cases of transferring it to other persons,
in whose financial situation the guilty party is
interested.
It goes without saying that such cases are a
crime is a sign that further increases the level
of social risk [11].
The requirement of a selfish goal does not
apply to accomplices who may act due to other
motives (family or friendship ties, under the
influence of threats or violence, or due to
service dependence). It is only important that
these persons know the nature of the act
committed by the performer.
The subjective side of theft involves the
establishment of two mandatory features: 1)
intentional guilt in the form of direct intent; 2)
a selfish goal.
Direct intent when committing theft lies in the
fact that the perpetrator realizes. The public
danger of his secret actions for the unlawful
and gratuitous seizure and conversion of
another's property in his favor or the benefit of
other persons. foresees the possibility or
inevitability of consequences in the form of
direct damage to the owner or other owner of
the stolen property and wants them to come.
The importance of the objective aspect of the
crime can be expressed in the following: social
danger, which indicates how the committed
crime was committed, is the appearance of the
act [12].
A selfish goal, that is, the desire of the
perpetrator to obtain material benefits by
illegal means. It is expressed in the desire to
have the actual opportunity to illegally own,
use and dispose of someone else's property as
his own, that is, personally consume or use it in
another way, sell, donate, lend to other
persons, as payment for debt or services
rendered. Secret illegal seizure and circulation
of someone else's property in one's own favor
or for the benefit of other persons, carried out
without a selfish purpose, cannot be qualified
as theft, but can entail criminal liability for the
destruction or damage of someone else's
property, arbitrariness, theft of vehicles.
CONCLUSION
The conducted research on the topic "Criminal
and legal characteristics of theft" allows us to
draw the following conclusions:
1.
Theft is one of the most widespread
and frequent forms of theft.
2.
According to the law, theft is a secret
theft of someone else's property.
Secrecy should be understood as:
seizure of property in the absence of its
owner and other persons. They are:
seizure of property in the presence of
the owner, but unnoticed by him;
seizure of property in the presence of
the owner or other persons, when the
perpetrator incorrectly believes that he
is acting in secret; seizure in the
presence of persons, when the
perpetrator expects that they do not
understand the nature of his actions.
The secrecy of the crime should be
decided based on a subjective criterion,
which is, based on the assessment of
the situation by the perpetrator
himself.
3.
By design, the composition of theft is
material, since the objective side of the
crime has a mandatory feature - the
onset
of
socially
dangerous
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consequences as material harm. Theft
is considered completed from the
moment the offender gets a real
opportunity to dispose of the property
of others seized by him at his own
discretion, regardless of whether he
was able to realize it.
4.
The subjective side of theft is
characterized by the presence of guilt
in the form of direct intent and selfish
motive.
Penetration is illegal if a culprit who has no
right to do so carries it out. Intrusion should be
understood as secret or open intrusion into a
room or other storehouse with the aim of
committing theft of someone else's property.
In any case, penetration must be carried out
with the purpose of theft. In this case, it is
necessary that this target was before
penetration. If a person was in a room or other
storage facility lawfully, without criminal
intent, but then committed theft, it cannot be
qualified as committed with penetration.
Premises "mean buildings and structures,
regardless of the form of ownership, intended
for the temporary location of people or the
placement of material assets for production or
other official purposes."
In addition, the storage facility is recognized as
"utility rooms, isolated from residential
buildings, areas of the territory, main pipelines,
and other structures, regardless of the form of
ownership, which are equipped with a fence or
technical means or provided with other
security and are intended for permanent or
temporary storage of material values."
REFERENCES
1.
https://www.legislation.gov.uk/ukpga/
1968/60
2.
Criminal Code, RSC 1985, c c-45, s 322
(https://laws-
lois.justice.gc.ca/eng/acts/C-46/page-
154.html#h-95).
3.
"Cap.
210
THEFT
ORDINANCE".
legislation.gov.hk.
4.
"Definition of theft - Section 378 in
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23 March 2020.
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