Possession In The Crime Against Property

On the issue of the protection of the Rechtsgueter of the crime against property, there are theoretical differences between the theory on the infringement of the real right and the theory on the infringement of the possession right. The theory on the infringement of the real right argues that the right that the crime against property infringes is not the actual possession right but the property right or the obligation right behind it. The theory on the infringement of the possession right argues that the possession of the property itself has independent status and value so it is the Rechtsgueter that should be protected by law. The net theory on the infringement of the real right only protects legal possession and excludes all kinds of illegal possession and thus is a loophole for criminal regulation. The theory on the infringement of the possession right has the disadvantage of expanding the scope of protection by putting all kinds of possessions as the Rechtsgueter that should be protected by the crime against property. Owing to their respective disadvantages, the two kinds of theories should all make some kinds of revisions so as to reasonably clarify its scope of protection. The word "possession", though as a basic function of property right, has gradually had its own status and value with the social and economic development. On the occasion of snatching others property, property offence infringes possession itself. Not all the occasions that infringe the possession right can be defined as the crime against property, so the theory on the infringement of the possession right should set some limits on the scope of protection of the crime against property. The Germany and Japan-led civil law system adopts the theory of three basic elements for the constitution of a crime and takes the pure theory on the infringement of the possession right as their basic standard of judgment and keeps a general characteristic on the judgment of the constitution of a crime. China takes a substantial standard on the constitution of a crime and takes a revisionist viewpoint on the judgment of the infringement of the Rechtsgueter on the crime against property. China's Criminal Law on the crime against property protects the reasonable theory on the infringement of the possession right against the real right.Embezzlement crime refers to taking others possession as one's own after possessing others'possession. Whereas capture crime refers to snatching and possessing others'property as his own, so the possession of others property is a basic component of this crime. The possession of others property in capture crime means one actually possesses others property and it is different from the possession as a kind of Rechtsgueter that should be protected as well as the possession in the crime of embezzlement. Capture crime means that on the precondition of taking possession of others property illegally, excluding others possession, and establishing one's or others own possession are the necessary contents of illegal possession. In terms of the means of property transfer, capture crime can be divided into two kinds, one is larceny crime in which the conductor transfers the possession, the other is delivery crime in which the victim transfers the possession. In the means of larceny, it should contain the element of secrecy. The capture crime includes peaceful means and a certain degree of violence that is not enough to suppress other's resistance. In the crime of delivery, fraud crime includes the transfer of property by the victim objectively as well as the willing intention of delivering the property.The possession of the crime against property includes the actual objective possession and the subjective intention of possession. The intention of possession has many kinds of features such as potentiality which means it need not be expressed, inclusiveness which means it need not be certain or specific. The actual objective possession can be expressed by the way of independent controlling ability and this kind of ability is exclusive. The fact of possession has many types including the actual possession of the property or the property is overseen by the possessor, the property is safeguarded by the possessor's mechanical instruments, as well as the property is within the possessor's domicile. The exclusive controlling ability includes both the actual objective and the more important social conceptual control of property. The possession of lost property in public places is not absolutely owned by the keeper. In some exclusive places, the possession of property can be transferred to others. The meanings of the word possession are mostly the same in the criminal law and the civil law in which both recognize that possession should include the combination of intention and fact and emphasize the maintenance of property order. There are also some differences between them in terms of nature and degree of possession. So, the explanation of criminal law should follow its own characteristics rather than the characteristics of civil law.The identification of the property crime exists only in certain occasions whereas in normal occasions it has no disputes. The possession of property includes the stages of acquirement, maintenance and forfeit. Different stages have their distinctive criteria. On the occasion that some persons with upper and lower relationship own the property jointly, the property can be owned either by the superior alone or them together. On the occasion that some persons with equal status own the property jointly, the property can be owned simply or general by them together. The deposit in the bank belongs to the kind of double possessions where the depositor enjoys legal possession, the bank enjoys actual possession. The dead can not be the legal entity of possession. It consists of the crime of robbery in which any person takes away other's property with the intention of injuring him and kills him finally. It consists of the crime of the object of invasion in which any person kills somebody and takes away other's property with the intention of taking away. It consists of the crime of the object of invasion or theft crime in which the third party takes away the demised person's property with the intention of taking away. The commissioned packaging kept by the commissioned person includes the internal content and the external packaging. The internal content belongs to the commissioner and the external packaging belongs to the commissioned. The commissioned consists of theft crime if he infringes part or whole of the packaging.Possession in the crime against property enjoys multiple functions of explanation. It not only has the function of distinguishing whether it is a crime or not, but also what specific kind of crime it is. The possession-based control theory defines the scope of an accomplished or attempted capture crime as well as an important instrument of explanation to distinguish specific property crimes.