An Approach to the Crime of Theft and Its Connection with the Civil Theory of Possession

Doinel Dinuică¹, Mioara-Ketty Guiu^{2, *}

¹Faculty of Law and Public Administration, "Spiru Haret" University, Bucharest, Romania

²Faculty of Law and Public Administration, Spiru Haret University, Research Associate of "Acad, Andrei Rădulescu" Legal Research Institute of Romanian Academy, Bucharest, Romania

Abstract

Contrary to appearances, the crime of theft raises many complex and difficult issues, most of which have not yet been settled. Almost all essential aspects related to this crime are controversial: its definition, legal object or protection purpose, the limitation period, its delimitation from other similar crimes (such as the crime of breach of trust) etc. One of the reasons of this failure is the so-called "subjective theory of possession" which continues to dominate the civil doctrine and to have a negative influence on the analysis of the crimes against patrimony, in general, and the crime of theft, in special. It is for this reason that the authors of the present paper have endeavoured, firstly, to develop a different theory of possession, an objective one, according to which possession and detention are not "facts as such" but specific prerogatives of the patrimonial rights which differ between themselves by content (possession implies detention, but its content is much broader). Then, starting from this point, the authors have set as their purpose to offer new answers regarding the controversial issues related to the crime of theft (for example, they consider that the theft ensures protection only to legal detention thus, there is no crime of theft if the good is taken from a thief).

Keywords

Possession, Detention, Appropriation, Use

Received: March 30, 2015
Accepted: April 18, 2015
Published online: July 9, 2015

@ 2015 The Authors. Published by American Institute of Science. This Open Access article is under the CC BY-NC license. http://creativecommons.org/licenses/by-nc/4.0/

1. Introduction

The new Penal Code of Romania has not introduced any essential modification referring to the definition of the crime of theft. At first sight, this could be considered something natural, especially because other legislators did the same (for instance, the new French Penal Code, which came into force in 1994, kept the previous definition of theft unchanged). However, this can no longer be considered natural when it comes to details, noticing that theft raises many complex and difficult issues, that the answers to these issues are extremely varied and that, far from having a unique definition, the theft, the same as many other concepts related to criminal law, has multiple definitions that differ significantly from one period of time to another and from a particular legislation to another. For instance, in France¹, theft is included among the crimes against assets (yet, some authors continue to consider it a crime against property²) and is defined as a fraudulent appropriation of another’s asset³ (art. 311-1 of the French Penal Code), whereas inItaly, theft is considered a crime against heritage and is defined as taking possession of another’s movable asset, appropriated from its owner, for the purpose of gaining profit for oneself or another⁴.

(art. 624 of the Italian Penal Code). All things considered, as long as these differences are maintained, it is possible that an identical deed could be considered a crime (theft) in a certain country and a perfectly legal deed in another. In reply, one may argue that such differences reflect the diversity of the peoples’ legal traditions which should be taken as they are. However, this view can be refuted, having in mind that the law is a science in itself and, in science, using concepts with various significances and thus uncertain is not permitted. Science is a systemic, unitary theoretical construct and these features can be preserved only if every concept has a unique definition, which always and everywhere remains the same. Therefore, the moment the controversies arise, we can no longer speak of science. However useful the controversies may prove to be for the scientific advances, they unfortunately remain as solid evidence for failure. This requires resuming and consolidating the research, in order to find better solutions, which can be unanimously imposed, by the force of the logical deduction brought by the arguments supporting them.

2. The Legal Object

The first, penal doctrines considered that the theft ensured the protection of the ownership right. In the 19th century, a part of the doctrine started to criticize this conception, claiming that the object of protection should not be limited to the ownership right and should also include the lawful possession (Pop, Tr., 1937, p.401; Antolisei, Fr., 1996, p.285).

That is why the majority of legislations gave up the term "crimes against property", replacing it with other less restrictive ones, such as those of "crimes against heritage" or "crimes against assets". At present, the governing doctrine considers that the crime of theft ensures the protection of possession or detention of movable assets (Rassat, M. L., 2006, p.100; Dongoroz, V., 1971, p.458; Pascu, I., 2013, p.300), namely to a simple state of fact, with no interest whatsoever to whether this state of fact is legal or illegal. In other words, this doctrine considers that, in case of theft, the protected value resides in the "physical affiliation of a movable asset to a certain heritage" (Filipaș, A., 1997, p.286).

Two well-known theses were derived from this doctrine, namely the theses according to which the owner can commit the crime of theft and the one who steals from a thief is himself/herself a thief. Nevertheless, these theses are frequently criticized. Some authors dispute the possibility of a "theft of a personal possesion" – furtum rei propriae. They consider that one cannot possibly conceive a theft committed by an owner to the detriment of a non-owner. We will further discuss this matter, when we analyse the condition that the asset should belong to another. Other authors dispute the possibility of protecting a simple "state of fact", even if it is against the law (bad faith possession or illegal detention). Although some legislations (Italian, Romanian, etc) have long sanctioned this possibility, many authors advocate that the protected object of the theft has to be limited to the "legal grounds" corresponding to real rights (ownership, use, etc) or to claim rights (Fiandaca, G., Musco, E., 1996, pp.50-53). In Italy, this opinion has gained more and more support and, apparently the only reason why the law has not yet been modified resides in the common fear that, by limiting the protection to the "legal grounds" (good-faith possession or legal detention), one could no longer conceive a furtum rei propriae, which means that the appropriation of an asset would remain unpunished. However, in our opinion, the above-mentioned fear is not justified. Contrary to appearances, a furtum rei propriae can be conceived even in the circumstances when the incrimination would ensure the exclusive protection of the "legal grounds" (good-faith possession or legal detention). The opposite conclusion was drawn from the fact that civil law defines possession and detention as simple "states of fact".

As it is known, in the conception of the civil doctrine, possession, the same as detention, represents a "state of fact, consisting in owning the asset" (Stătescu, C., Bârsan, C., 1980, p.235; Braudo, S., 2015) and the difference between possession and detention is limited to a different intentional element: the subjective element of possession consists in animus domini, namely the intention to detain/own for oneself, whereas the subjective element of detention consists in animus detinendi, namely the intention to detain/own for another – which would result in turning possession into a precarious detention. As we have already seen (Guiu, K., Voicu, A., 2010, pp. 179-181), this theory, also known as "the subjective theory of possession" is totally wrong. In fact, it has already been subjected to severe criticism. It is also a well-known fact that, in order to refute this theory, Rudolf von Ihering formulated "the objective theory of possession", pointing out that the distinction between possession and detention arises from the law and not from a different subjective element, since the agent’s personal will cannot have such an arbitrary power. Nevertheless, Ihering’s explanations have not apparently been convincing enough, since the so called "subjective theory of possession" is still maintained today. This is why, in order to invalidate this theory, we will direct our criticism to another direction, namely against defining possession and detention as "states of fact, consisting in owning the asset". We will begin by keeping in mind that the civil law classifies the causes of legal reports, depending on their nature, into two categories: events (natural facts) and human actions (Pop, A., Beleiu, Gh., 1980, p.176). Or, examined from the perspective of this classification, such a definition may imply that possession and detention may be included in the category of events (natural facts), which is obviously false. An elementary logic shows that possession and detention are human actions and not natural facts or "states of fact". In addition, the same logic points out that, since we speak of human actions, we cannot speak of possession and detention in an indifferent way; on the contrary, it is necessary that we should make a clear distinction between legal (licit) acts of possession or detention and the illegal (illicit) ones, paying attention exclusively to the former (licit acts). Consequently, a legislative intervention would be more than necessary, to put an end to the protection that the crime of theft ensures for illicit acts of possession and detention. We can bring more arguments to support this legislative necessity. For instance, it can be argued that an illicit action cannot be considered a "social value" which should be worth protecting; an illicit action remains a social non-value and therefore, it cannot become the "legal object" of any crime. Or, it may also be invoked the fact that theft is included in the crimes against heritage, while the deed of the one who steals from another thief is not detrimental to the heritage of the first thief (no right can arise from an illicit fact); the deed of the second thief could be surpassingly punished, as a crime against enforcing the law (for example, concealment).

However, it is almost sure that the legislator will not decide to exclude from the sphere of criminal protection the illicit acts of possession or detention, as long as, because of the confusions prevailing upon the content of the legal notions of possession and detention, it is very difficult or even impossible to clearly draw the line which separates the licit acts from the illicit ones.

Therefore, it is necessary to bring some clarifications in regard to this matter. From the very beginning, one can notice that the notions of "possession" and "detention" are used both as common words and as legal terms. In common language, the two notions have the same meaning (they are synonyms) and they designate the possession or the power exerted by a person upon a thing, with no interest whatsoever whether this possession is legal or not, or whether the thing possessed has any value or not. In the legal jargon, the two notions have suffered many alterations, both in terms of the object they refer to, as well as of their sphere and content. For instance, with regard to their object, one can notice that the juridical possession and detention no longer refer to any kind of things, but to those that are traded, have an economic value and which, for all these reasons, are qualified as "goods". Regarding their sphere, one can notice that the juridical possession and detention can no longer be put into practice randomly, but be enforced under the conditions stipulated by law. In other words, legally speaking, the prerogatives of a possessor or detainer are no longer limitless, but accurately established by law. As far as content is concerned, two aspects are to be noted. Firstly, one should notice that there are only three categories of juridical acts which can be attributed to the content of possession and, respectively, detention, as follows: conservation acts (meant to prevent the loss of goods), administrative acts (using, exploiting or capitalizing the good) and acts of disposal (to remise the good or encumber it) (Pop, A., Beleiu, Gh., 1980, p.196).

In other words, the juridical content of possession or detention is reduced to acts which play a certain role in protecting the goods or the heritage. Another thing worth mentioning is that in legal jargon, the notion of "detention" has become a hyponym, whereas the notion of "possession" is the hypernym, a superordinate notion which includes the notion of "detention" but is not limited to it, which ultimately means that one can conceive the idea of a detainer without any possession but one cannot think of a possessor lacking the detained good. Yet, before pointing out the difference in terms of content between possession and detention, we should first notice that both possession and detention have an essential content (obligatory and fixed), as well as an unessential content (facultative and variable). The essential (obligatory) content of detention consists in the prerogative to receive and detain the good. With regard to the unessential (facultative) content of detention, it consists in the prerogative to ensure conservation acts, transportation included. The essential (obligatory) content of possession consists in the prerogative to use, dispose of or exploit the good - which implies the prerogative of detaining the good (the possessor can use the good only if he/she detains it). As concerns the unessential (facultative) content of possession, one should notice that it is different from a certain real property law to another and this is why it was necessary to make a clear distinction between property and its subdivisions (superficies, usufruct, use, habitation, easement). As it may become obvious at a closer look, in case of the right of habitation and easement, the content of possession is limited to its essential content (obligatory), namely to the prerogative to use the good, whereas, in case of the rights of use, usufruct and superficies, an unessential (facultative and variable) content appears and it consists, for example, in the prerogative to pick up the fruit or to remise the right or the good. As regards the property right, possession has the largest content - since the owner has the right to do bothconservation and administrative acts, as well as any acts of disposal.

In conclusion, synthesizing, we can keep in mind the fact that while detention represents a prerogative which is common to all heritage rights (serving as a criterion of classifying subjective rights into heritage and non-heritage rights), possession represents a specific prerogative of real rights. The simple detention confers the titular only a claim right and not a real right, as one may deduce from some theoretical explanations (for example, the transporter of the good has only a claim right, because, by general rule, he/she does not have the right to use the good). Thus, we have to underline that the existence of a real right is excluded, as long as the detainer does not have the prerogative to use the good (for example, the pledgee does not have the right to use the good, therefore, article 916, paragraph 2 from the new Romanian Civil Code wrongfully defines the pledge and the other real property guarantees as "real rights".

Anyway, coming back to the issue of the legal object of the crime of theft, we can notice that since detention is a prerogative common to all heritage rights and since it also represents an obligatory minimal requirement (a sine qua non condition) of possession, the Romanian legislator could stop referring to possession and detention alternatively and could limit the protection object of the theft to detention, the same as the Italian legislator did (the Italian text only claims that the good should be "in the detention of another"). However, taking into account all the above-mentioned considerations, the legislator should explicitly stipulate that it is necessary that the good should be in the legitimate detention of another, thus ceasing to grant protection to illicit acts of detention.

3. The Objective Element and the Essential Conditions

In the Penal Code of Romania, the objective element of the crime of theft is described as the appropriation of a movable good.

The term "appropriation" designates an action of changing the place of or displacing the movable good (the good is taken, displaced, etc.)In principle, the action of appropriation can be carried out by any means: by physical force, by means of some mechanical devices or by the help of a trained animal. Yet, theft cannot be committed by physical or psychological violence (threat), because, otherwise, the deed committed will be considered a robbery. According to the definition registered in art. 228, Penal Code, the above mentioned deed becomes a crime of theft, if four essential conditions are met, as follows: the good has to belong to someone else; the good has to be in the victim’s possession or detention; the good has to be taken without the possessor’s or detainer’s consent; the good has to be taken for the purpose of illegitimate appropriation⁵.

The first essential condition is that the good has to belong to someone else. Regarding this condition, we have already pointed out the existing controversy. A part of the doctrine considers that the good belongs to someone else when it is the property of another (Chaveau, A., Hélie, F., 1865, pp.251-252).

In this conception, the possibility of stealing one’s own good is ruled out and thus, the owner cannot be held responsible for the theft – rei nostrae furtum facere non possumus. Yet, some authors admit an exception to this rule, namely the case when the owner steals the good from a co-owner or co-heir. Another part of the doctrine considers that if the good belongs to someone else, then it is in the legitimate possession or detention of another (Pop, Tr., 1937, p. 411).

In this view, on the other hand, the possibility of stealing one’s own good (furtum rei propriae) is admitted – for instance, the owner can be held responsible for the theft, if he/she steals the pledged good from the creditor; or if the good previously represented a usufruct or use in favour of the victim; or, if the victim is a co-owner. Starting from 1937 the Romanian legislation has consecrated this last conception, which we consider to be justified. The second essential condition is that, at the moment of the crime, the movable good should be in the possession or detention of the victim (Antoniu, G., 2001, p.126). Regarding this condition, two clarifications need to be made. First of all, from this second condition, one should not understand that the victim should always keep the good at hand/close to him/her (for instance in the handbag) or in a place where he/she can exert his/her ownership right (property, habitation etc).

By law, it is not important the place where the good is, only the fact that the victim can exert upon the good the prerogatives specific to possession or detention (he/she can keep the good and take care of it, use it or gain profit by using it)⁶.

Moreover, jurisprudence has admitted that sometimes, one can exert detention rights even without knowing – for instance, it was decided that the person who steals the fish from another person’s fishing net is held responsible for theft, even if the owner of the fishing net had no idea about the fish caught.⁷.

Then, we have to add that, by this condition, theft is different from other crimes which have a similar content. For example, by virtue of this condition, we can distinguish between the crime of theft and the crime of breach of trust (art. 238, Penal Code), the latter requiring, on the contrary, that the movable good should be in the legal detention of the perpetrator at the moment of the crime (in order for the crime of breach of trust to exist, it is required that the good should be detained by the perpetrator, on the basis of a title or legal relation). Consequently, it can be understood that there will be a crime of theft if the perpetrator illegally takes over the detention of the movable good; on the other hand, if the perpetrator legally detains the good and unlawfully converts the simple detention into a veritable possession, then there will be a crime of breach of trust. Unfortunately, the jurisprudence continues to encounter difficulties in delimitating these two crimes and the cause of this situation resides in the fact that, following the example of the French doctrine, our penal doctrine admits that there could exist an "entirely material detention" (a simple "material contact" with the good), conceived as a tertium genus, a particular situation, when the perpetrator’s detention is neither legal nor illegal. According to a French author (Conte, Ph., 2003, pp.320-321) such a "detention" would correspond to the situations in which, even if "the good is entrusted" – which means that the victim wilfully remitted the good to the perpetrator – still, we couldn’t speak of a veritable contract established between the parties, which could thus justify the perpetrator’s liability for breach of trust. As a result, according to this conception, the person liable for theft and not for breach of trust is the one who, in a public place (railway station, restaurant etc.) appropriates the good which had been temporarily entrusted to him/her for watch by the victim⁸.

or the client who steals the item of clothing which the shop-assistant had entrusted to him/her so as to examine it or to try it on; or the employee who steals the materials which had been entrusted to him/her by the employer so as to use them in the process of work. Against the concept of "entirely material detention" ("material contact"), the same author righteously noticed that it was by no means necessary. Since the remittance of the good was "accepted" by the victim, under the conditions established by the Civil Code, this means that the remittance took place on the basis of a legal relation between the victim and the perpetrator; and, as such, it can easily be asserted the existence of the crime of breach of trust in all these situations, in which "the classical jurisprudence considers to be either theft, or breach of trust, according to criteria which are not exactly clear." (Conte, Ph., 2003, p. 321; Delmas-Marty, M, Giudicelli-Delage, G., 2000, p.271).

As far as we are concerned, in total agreement to this opinion, we would also add two observations. The first observation is that, logically speaking, detention can be either only licit or illicit and, therefore, there is only this alternative: the good has either illegally come into the detention of the perpetrator and, as such, we speak of the crime of theft; or the good has legally come into the detention of the perpetrator and, as such, we speak of the crime of breach of trust; a third possibility is not possible (tertium non datur). The second observation is that, in order for a legal relation to exist, the parties need not sign a written agreement or, in general, act with the manifested intention of creating binding agreements (Djuvara, M., 1995, p. 166).

Such binding agreements are created automatically, by virtue of the law, whenever a social relation (between people) is created and this is because there is no social relation which may escape without legal consideration. As it has already been noticed a possible manifestation of the parties’ will do nothing but strengthen the legislator’s will, conferring a double volitional character to the legal relation (Pop, A., Beleiu, Gh., 1980, pp.97-98).

The third essential condition is that the movable good should be taken without the consent of the possessor or detainer. It is not necessary to have a special formulated consent. A tacit consent is also considered valid, which results from convincing acts – for instance, there is a tacit consent if the victim, who is present, did not express in any way the disagreement regarding the taking of the possession by the defendant⁹.

The act is considered theft both when the consent lacks entirely from the possessor or detainer, or when it does not meet the legal requirements to be considered valid.

The act is considered theft when having the consent of a person that lacks capacity (minor, person that lacks responsibility) – for instance, it has been decided that it is hold responsible for theft the person who takes the good, having the consent of a child, because the child does not have the capacity to consent to the taking of the good (Pop, Tr., 1937, p.417).

The act is considered theft when the consent does not refer to the good taken by the agent. A consent given for other goods does not rule out the existence of the crime (Pop, Tr., 1937, p.414).

The act is considered theft when the consent does not come from the owner or detainer. The consent given by the owner does not rule out the existence of the crime, if, at the moment of the commission of the act the good was in the legal possession of a third party (in such a case, the owner can be held responsible, for instigation or moral complicity to theft).

However, we consider that the statement "without consent" used by the Romanian law is inadequate. The lack of consent cannot represent an essential requirement for the crime of theft as long as the law allows, in certain circumstances, to take a good  under constraint, without the consent of the owner or detainer (for example in the case of confiscation or requisition). In our opinion, the statement "without consent" should be replaced with "in a clandestine way". The latter statement would underline the fact that, for the crime of theft it is necessary that the good should be taken illegally and stealthily so that the author may not be detected or, at least, that author may escape (as, for example, when the thief steals the good under the eyes of the owner).

The fourth essential condition is that the good should have been taken for the purpose of wrongful appropriation.

The act is considered theft only when the perpetrator acted with the aim of obtaining an unjust material profit. If this aim lacks, the act is not a crime. To this extent, in the Romanian jurisprudence, it has been decided that there is no theft if the defendant stole the good in order to determine the injured party to give back to him a wrongfully detained good¹⁰; or, if the defendant took more objects from the man who was caught to commit adultery with his wife, in order to use them as evidence in the divorce case¹¹.

To the same extent, in the Western jurisprudence, it has been decided that the constitutive elements of the crime of theft are not met if the agent stole a quantity of goods which the shop-assistant, out of revenge, did not want to sell, leaving him instead the corresponding sum of money for the goods taken; or, if, in need of some change, the tenant took more metal coins from the owner’s house, leaving instead a note of the same financial value with the coins (Krey, V., 1995, pp.20-21).

4. The Forms of the Crime

According to art, 232 Penal Code, the attempted theft is punishable. Yet, if we start from the premise that theft is an instantaneous crime, then, we have to conclude that the attempted theft is not possible (having no iter crimis, cannot be attempted). Unfortunately, there is an old controversy regarding the consummative moment of the crime of theft. Some courts decided that there is attempted theft and not the consummative crime of theft, if the defendants had been caught on the field of the injured party, while they were loading in a wagon the cabbage harvested and deposited in piles¹².

or, if the thief was caught in the middle of a herd, holding a lamb in his/her arms¹³.

Other courts decided, on the other hand, that there is consummated crime of theft and not attempted theft even if the defendants, who had stolen a radio cassette recorder and the boxes from a car, were caught immediately by the injured party and, as a result, the latter suffered no damage¹⁴; or, if the defendants extracted oil products from the pipe-line and filled more barrels, which they abandoned and ran away the moment they were caught red-handed¹⁵.

Nowadays, the dominant jurisprudence is to this last extent, which represents, in our view, a tacit confirmation of the thesis that we affirm, namely that theft is a momentary, instantaneous crime or one of prompt execution. However, what would be preferable is an explicit acknowledgement of this thesis, taking into consideration that, starting from here, one can provide more convincing solutions to other legal matters related to other issues of attempt (for instance, very often the attempt to illegally enter a private space is punished as attempt to theft even if it could not be proven that the defendant was intending to take a good – mainly because the law does not punish the attempt to burglary).

5. Conclusions

From the above mentioned considerations one can reach some conclusions such as:

•  As legal notions, possession and detention represent specific prerogatives to patrimony rights. Detention is a common prerogative to all patrimony rights, regardless of the fact that they are real rights or claim rights, while possession is a specific prerogative only to real rights;

•  As real actions, possession and detention may be legal or illegal, but the law has to protect only the legal possession or detention. Therefore, it is wrong to state that there is theft if a person (even the owner) takes the good from a thief (if the case, such an act may be punished as a crime against justice – for instance concealment);

•  For the existence of the crime of theft it is necessary that, at the moment of the crime the good should be in the legal possession of the victim. If, at the moment of the crime the good is in the legal possession of the defendant, there will be another crime (breach of trust, fraud management etc.);

•  For the existence of the crime of theft it is also necessary that the defendant should take the good in a clandestine way and with the purpose of having an unjust material profit;

•  The crime of theft is an instantaneous crime where attempt is not possible.

All things considered, it is our opinion that the Romanian legislator should give up to punish the attempt related to the crime of theft and bring some corrections to the definition of theft as follows: Clandestinely appropriating a movable good from the legitimate detention of another, for the purpose of gaining an unjust material profit for oneself or for another.

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