The Distinction Between Larceny and Embezzlement: With Special Reference to the Concept of Possession

Abstract

The distinction between larceny and embezzlement has long been a contentious issue in judicial practice, with its core lying in the accurate determination of the possession status of property at the time of the act. Centering on the concept of possession, this article systematically reviews major theoretical doctrines in criminal law, including the theory of Factual Control, the theory of Normative Possession, and comprehensive approaches. It reveals the interpretive difficulties these doctrines face when applied to typical disputed scenarios such as mislaid property, sealed containers, and belongings on a deceased person. To unify adjudication standards and enhance practical applicability, this article attempts to construct a comprehensive, step-by-step analytical framework based on ‘the possibility of Factual Control as the foundation, supplemented necessarily by societal normative recognition.’ This framework is then applied to test three types of classic disputed cases: mobile phones forgotten in taxis, couriers extracting contents from parcels, and property appropriation after homicide, yielding consistent conclusions that align with prevailing judicial understanding. The research demonstrates that by establishing a clear, hierarchical method for determining possession—one that integrates factual and normative considerations—a more explanatory and applicable theoretical tool can be provided for distinguishing larceny from embezzlement. This contributes to achieving uniformity and justice in the application of criminal law within complex property relationships.