Nature Of Property In The Criminal Law And Property Control Study

Property Crime is one of the most ancient crimes in our human development history, while its occurrence and development closely relate to the social economic development. Due to increasingly complicated property relations and new endless properties, the traditional criminal law theory is not applicable to meet the demands of real life. Therefore, it is a key and difficult problem to settle property crimes occurring in the new trends subject to Principality of Legality in our national criminal theory and judicial practices. The Author endeavors to study the difficult problems occurring in the property crimes and define the limits, including criminal and non-criminal, this crime and that crime, against the property crimes in the criminal theory in the view of property relations and property controlling relations, which may either give directions for judicial practices or give references for legality so as to promote constant riches and developments of criminal theory researches in our nation.There are five chapters in this Papers, excluding the Introduction hereof.The Author describes the backgrounds for the topics hereof, introduces the status for researches in relation to domestic and overseas property crimes and describes the research methods, creations and research values related to this Papers in the Introduction hereunder. Furthermore, the Author states that the researches for the property natures and property controlling relations in the property crimes shall be awarded with accurate and appropriate understanding rather than confusions between crime and civil in the light of criminal law. However, other material issues, such as quantity of crime, recognition of joint crime and criminal amounts, in the property crimes are not studied and discussed separately.The overview for the property crime is stated and described in Chapter One hereof. The Author defines the concept, categories and scopes for the property crime in our national criminal law on the basis of sufficient statements with respect to the ideas and concept of the property ownership and the property systems, which forms the theory basis for the researches in the Papers. The researches for the property natures and property controlling relations are limited to the property crimes specified in Chapter Five of the Criminal Law, excluding crime of damaging socialism marketing economic orders, stolen-property crime, corruption and bribery crime. The Author also makes detailed researches for criminal and civil relations in the property crime because the concepts of the property right and the property are sourced from relevant provisions of civil law. The Author supports that the property crime in the criminal law is separated from civil law, though relevant concepts of property crimes specified in the criminal law are sourced from civil law theory. The property crime shall be given with independent definition and characteristics in the criminal law rather than subordinated to the civil field. With respect to the dispute between monistic illegality and pluralism illegality (relative), the Author supports the view of relative illegality, namely, the criminal law shall give a separate and detailed comment against the illegality so as to state the social dangers of the said crimes and to distinct these social dangers from the social dangers arising out of other illegalities.The Author exercises researches for safeguarding the legal benefits in the property crime in Chapter Two hereunder. The Author analyzes and summarizes the safeguarding of the legal benefits in the property crimes of German, Japan, UK and USA, and states that "Legal benefits which are safeguarded by civil law shall be safeguarded by criminal law" is recognized in the criminal law theory of each country; however, the Author has different opinions against the safeguarded scopes. The dispute is mainly focused on whether the principal's properties under the possession of others, payments under illegal reasons (bribery, fees for patronizing a prostitute and so on), illegal incomes, contrabands and property interests can become the objects of the property crimes or not. Such dispute in criminal law theory is become the dispute of monistic illegality and pluralism illegality and the dispute of sub-ordinance and separation of criminal law. Along with increasingly complicated social economic relations, the scopes for safeguarding the legal benefits in the property crimes are also being changed accordingly. There are also dispute against the safeguarded legal benefits in the property crimes in our criminal law theory, including Ownership Opinion, Possession Opinion and Rectification Opinion. In the opinion of the Author, the Rectification Opinion is much appropriate; furthermore, the Author limits some views of the Rectification Opinion and states that the obligee can recover its rights under its justification, rights and appropriate way. Otherwise, corresponding property crimes may be formed. Moreover, the Author analyzes the Rectification Opinion in the negative side thereof and considers that the scopes of "Recover the possession through legal process" are basically similar to those of "Exclude the illegal possession beyond the self-remedy and exercise of the rights in the criminal law" . With the goal of understanding the safeguarded legal benefits in the property crimes, the Author carries out respective researches and discussions against the self-remedy and exercises of rights in the criminal law in the Papers.Object of property crime——Property is studied in Chapter Threehereunder. Currently, "Property" and "Belongings" are usually mixed in our criminal law, which may lead to two conclusions: (i) the property benefit can not become the object of the property crime, according to which the acts infringing the property benefits of others through violence, stress and fraudulence can only be punished with the crimes beyond the property crime or can not be treated as crime; (ii) the property benefits are included in the belongings, which makes "Property" and"Belongings" become indistinct and thus affects the qualitative tendency against the crime acts. Therefore, the Author considers that the"Property" in the criminal law shall include the belongings and the property benefits, in which "Property" is grounded concept, while"Belongings and Property Benefits" is a derived concept, and"Property" and "Belongings and Property Benefits" are equal to each other. "Belongings" may become the object of the property crime, while"Property Benefits" can only become objects of some property crimes, such as robbery crime, fraudulent crime and blackmail crime, etc.Either "Belongings" or "Property Benefits" shall be managed possibly with economic values. Based on the foregoing, the Author analyzes whether the real estates and the virtual properties can become"Belongings" in the criminal law in any respect, and states that the property nature plays a key role in property crime and conviction and sentencing thereof by analyzing typical cases. The property controlling relations are discussed in Chapter Four hereunder. The Author defines the relations between possession and holding, possession and ownership on the basis of categorizing the property controlling relations in the criminal law. With respect to the researches for the possessions in the property crimes, the Author exercises respective researches against the possessions in civil law and criminal law. Based on the foregoing, the Author states the discrepancy between the possessions in civil law and criminal law. The Author considers that the possession in criminal law is a kind of fact rather than right and the possession in criminal law is focused on the fact; in addition, there are different requirements for the subjective factors, subjects and acts of the possession in civil law and criminal law. Therefore, it is necessary to recognize the difference between the conceptof the possession in civil law and criminal law and not to confront the same by extending such discrepancy widely.The factors for possession in criminal law are defined in the Papers, which are (i) intentional possession (subjective factors); (ii) facts of possession (objective factors). Intentional possession refers to the intent of controlling the belongings in fact, while possession is not limited to the specific and special controlling against the specific belongings. In general, the general and abstract controlling intent against the belongings in its premises is enough. The intent of possession is considered to support the recognition of the possession; however, the interim controlling rather than possession shall not be treated as possession.In addition, the relation between the intent of possession and the premises is further studied in the Papers. The Author states that the requirements are different for possession in different premises. In public premises, the intent of possession can be recognized only provided that a person has active and express intent of possession; in a separate place in which a person has "Appropriate controlling in fact" , the intent of possession can be recognized if such person has general and abstract intent of possession subjectively; in a separate place in which a person has "Absolute controlling in fact" , the intent of possession can be recognized if such person fails to waive the intent of possessing the property.With respect to the recognition of possession in fact, the Author exercises researches in the light of controlling methods and the place where the property locates. Without prejudice to the foregoing, the recognition of possession shall be judged subject to general social observation and social overview. The Author discusses a person who controls the belongings in fact if such belongings relate to more than one person, which mainly include the following three conditions: (i) with respect to the recognition of the possession between a person and its commander, the Author considers that such person shall be treated as a support to its commander if such person is supervised by its commander, and such person shall be treated to possess articles if such person is authorized to dispose such articles due to its physical possession of such articles; (ii) if the belongings are under joint possession of more than one person, the joint possessors shall be treated to form the theft crime if they take away such belongings; (iii) the possession of the packages can be recognized through the following two conditions: (a) if the vessel is fixed on the building, the key-holder shall be the possessor of such vessel; (b) if the vessel can be carried or can be moved easily, the controller of such vessel shall be the possessor.The Author discusses two key issues in Chapter Five hereunder. Firstly, effects of property controlling relation to qualitative crime: the Author describes the recognition limits based on analysis of typical cases. Especially, the Author states that the limits of the theft crime and defraud crime, theft crime and embezzlement crime which are disputed in judicial practices, shall be varied in the light of the property controlling relations. In the light of the property controlling relations, both theft crime and defraud crime infringe the possession of property of others. However, the illegal possession in theft crime can be reached through the secret theft of the thief, while the illegal possession in defraud crime can be reached by the "co-operation" of the victim, namely, the illegal possession of the belongings can be reached based on the disposal of the property of the victim. Therefore, a person obtaining actively the belongings shall be recognized to commit the theft crime rather the defraud crime if such belongings are controlled by the victim. With respect to the recognition for the limits of theft crime and embezzlement crime, the Author materially discusses the limits of possessing the lost property and thieving the lost property. The Author states the recognition standards for the double-controlling relation of the lost property in different premises.Secondly, effects of property controlling relations to recognition of property crime morphology. The Author considers that the property crime can be formed if a person makes it or a third party obtain the controlling and supervision right of the belongings due to its acts and its acts make the original possessor not control and supervise such belongings any more or make the original possessor lost with the controlling and supervision right thereof or at least make the original possessor materially hindered to exercise its controlling and supervision right. The controlling levels for possessors to control the belongings are different in judicial practices. Due to different controlling possession levels, different property natures, weights, volumes, shapes, premises and economic usages for the belongings, the controlling methods against the belongings shall be different accordingly. Therefore, the Author discusses the recognitions of occurred property crime and attempted property crime under the single property controlling method and the complicated property controlling method respectively. In the end, the Author discusses the effects of the property nature to the recognition of patterns of crime.