The Criminal Law Evaluation On Improper Exercise Of Property Rights

In theory,improper exercise of property rights is referred to as exercise of rights,which means that the actor obtains the property to realize the legal property rights through theft,fraud and other illegal means.In practice,the phenomenon of "different judgments for the same case" is prominent,which seriously affects the fairness and justice of criminal law.In theory,there are many differences in the conclusion and the specific discussion of the criminal law evaluation on such acts,which is difficult to provide a unified theoretical guidance for judicial practice.It is still urgent and necessary to study the criminal law evaluation on improper exercise of property rights.The mainstream view adopts a unified path to judge the criminal illegality of improper exercise of property rights,that is,through judging purpose of illegal possession or property damage or cause of illegal obstruction beyond laws and regulations.Regardless of the disputes on purpose of illegal possession,property damage and cause of illegal obstruction beyond laws and regulations,the mainstream view,based on the unified understanding of the legal interests in property crimes,makes a unified interpretation on subjective purpose and damage result of property crimes,and ignores the differences of specific property crime,the content of legal interests of property and the different types of improper exercise of property rights.This paper understands the content of legal interests in property crimes from the relationship between property types and property interests,advocates the individualized interpretation of the legal interests in property crimes,combining the characteristics of property rights and means of behavior in various kinds of behaviors,and based on the specific definition of the objective behavior,property damage,illegal purpose and other elements of the constitutive elements of property crimes,to make the criminal law evaluation on improper exercise of property rights.This paper is divided into five chapters to discuss the criminal law evaluation on improper exercise of property rights.The first chapter is an overview of criminal law evaluation on improper exercise of property rights.This chapter mainly defines the concept and type of improper exercise of property rights and the scope of the property crimes involved,which provides the necessary theoretical premise for the discussion.First of all,improper exercise of property rights is the behavior that the actor obtains property by means of property crimes to realize property rights.This kind of behavior is characterized by the objective compliance with the formal elements of some property crimes and the subjective realization of the legitimate property rights.Judging the objective characteristics of this behavior must be based on the proper interpretation of the objective behavior of property crimes,and analyzing its subjective characteristics must start from the nature and content of property rights.Secondly,the different property right attribute or content of property rights may affect the criminal law evaluation on improper exercise of property rights,the types of this kind of behavior can be divided from these two aspects.According to the attributes of property rights,it can be divided into improper exercise of property rights to achieve the objective existence of property rights and improper exercise of property rights to achieve the realization of property rights based on reasonable facts but not existing in reality.According to the content of property rights,it can be divided into two types,which is improper exercise of the right of control and improper exercise of the right of claim.The former is the right to obtain property interests directly through control specific property,the latter is the right to require the opposite party to indirectly obtain property interests for certain behaviors.Finally,from the objective behavior and object of property crime,the scope of property crime involved in improper exercise of property rights is defined.Improper exercise of property rights is an illegal act of obtaining property,which may involve the crime of obtaining property.According to whether the transfer of property reflects the meaning of the victim,it can be divided into the crime of seizing without the meaning of the victim and the crime of delivering with the meaning flaw of the victim.The object of property crimes is property,including property and property interests.But the object of specific property crime must be combined with its behavior characteristics.Among the property crimes involved in improper exercise of property rights,only larceny can’t take all property interests as object because there is no meaning of victim.The second chapter is the dispute of the criminal law evaluation on improper exercise of property rights.This chapter mainly analyzes the criminal law evaluation disputes on improper exercise of property rights,and clarifies the essence of the disputes.There are two opinions about the criminal law evaluation on improper exercise of property rights: the theory of restraining the conformity of constitutive requirements and the theory of illegal obstruction.The former thinks that the "right nature" of improper exercise of property rights may affect the content of the constitutive elements of property crimes,and the behavior may not be established as a property crime because it does not conform to the constitutive elements of property crimes,so it is enough to evaluate the criminal illegality of means behavior.The latter thinks that the behavior of exercising rights accords with the constitutive requirements of property crimes in principle.Only in the judgment of illegality,the "right" of improper exercise of property rights is considered,which may be acquitted due to lack of substantive illegality.According to the different opinions on how to exclude improper exercise of property rights from property crimes and the conclusion on the infringement of legal interests of property and criminal illegality,there are two controversial issues.One is how to explain the property legal interests to judge whether the behavior has the infringement of legal interests of property.The other one is to judge the criminal illegality of the act from the judgment position of illegality.Fundamentally speaking,the interpretation of legal interests of property crimes is always related to the understanding of the relationship between civil property rights,and the judgment of criminal illegality is always faced with the problem of how to coordinate with the judgment of civil illegality.Therefore,the essence of the criminal law evaluation dispute over improper exercise of property rights should be attributed to various views based on different views of the relationship between criminal law and civil law.In the view of the relationship between criminal law and civil law,there are obvious defects in the theory of criminal independence and the theory of criminal subordination.Although the conclusions of the two relative theories on the specific problems are often the same,the concepts behind the two theories are different,there are differences in interpreting the legal interests of property crimes and judging the criminal illegality,and there are also differences in the criminal law evaluation on improper exercise of property rights.The third chapter is the criminal law evaluation position of improper exercise of property rights.This chapter establishes that the relative subordination of criminal law is the criminal law evaluation position of improper exercise of property rights,and clearly explains the specific content of the legal interests of property crimes and the judgment of criminal illegality under this position.The reasonable basis of the theory of relative subordination of criminal law lies in the implementation of unified legal order,the agreement with the principle of modesty and restraint of criminal law,and the coordination with the current situation of legislation and justice in China.Law is the mean to achieve the goal,the scope of relative subordination of criminal law should be determined by the standard of "normative protection purpose".When the normative protection purpose is the same,criminal law is subordinate to civil law,reflecting the modesty of criminal law,and preventing the conflict of value judgment between criminal law and civil law.In the aspect of property protection,when criminal law and civil law both aim at prohibiting the behavior of destroying property order and protecting property and the specific content of property order is mainly regulated by civil law,the finality of criminal law determines that it can only play the function of protecting property in the property order created by civil law.However,under the principle of legality,how to give play to the function of criminal law to protect property should be considered from the criminal law.The theory of relative subordination of criminal law requires to pay attention to the relationship between criminal law and other laws in the unity of legal order,and systematically explain the legal interests of property crimes,specifically to achieve the unity with constitution,not independent of civil law,and to coordinate within the whole of criminal law.The interpretation of the legal interests of property crimes is not independent of civil law,it is not required to judge the legal interests of property crimes completely from the ownership of property rights in civil law,but to judge whether a property interest has the necessity of criminal law protection in the civil property right relationship.When explaining the content of the legal interests of property protected by the specific property crime,we must combine the property type protected by the criminal law to explain individually,that is,protect the victim’s legitimate dominant interest in the specific property in the property crimes of the property,and protect the victim’s legal overall property status in the property crimes of the property interests.The theory of relative subordination of criminal law supports the mitigated violation of law,which recognizes the relativity of criminal illegality under the unity of legal order,and considers that the punishable illegality is the criminal illegality,and the civil illegality is not necessarily the criminal illegality,but the non-illegality in civil law within the same scope of normative protection purpose is not the criminal illegality.In the judgment method of criminal illegality,the judgment structure of "general illegality + punishable illegality = criminal illegality" is adopted.Among them,general illegality is based on the constitution,which is the upper concept of criminal illegality and civil illegality.When criminal illegality and other illegality belong to the content of a certain "general illegality",there is a conflict of legal evaluation between them within the scope of general illegality,which breaks the requirement for the unity of legal order.Therefore,in consideration of the modesty of criminal law,when one act is not generally illegal through other laws,even if the act conforms to the constitutive requirements of a crime,it should not be established as a crime due to lack of punishable illegality.In order to maintain the stereotype of the constitutive elements,we should judge the punishable illegality only in the judgment of illegality.From the basic position of legal interest protection,we can determine whether the behavior that conforms to the constitutive elements has substantive illegality by comprehensively considering the degree of infringement of the legal interests and whether there is more worthy of the legal interests.The fourth chapter is the criminal law evaluation path of improper exercise of property rights.This chapter analyzes the significance and limitations of various paths in eliminating improper exercise of property rights to establish property crimes,and makes clear the feasible scope of each path.Although the conclusion that improper exercise of property rights does not establish property crimes can be drawn through the path of taking property,the path of property damage,the path of purpose of illegal possession,and the path of cause of illegal obstruction beyond laws and regulations,these paths have limitations.Firstly,when improper exercise of property rights does not conform to the prohibition of property crimes,the behavior has nothing to do with property crimes,but in the case of compliance,there is the possibility of excluding the behavior from property crimes by other ways.Secondly,improper exercise of property rights does not lead to property damage,does not have purpose of illegal possession and does not establish property crime.However,the contents of property damage and purpose of illegal possession are not the same in different property crimes.Based on a unified understanding of property damage and purpose of illegal possession,the evaluation of criminal law on improper exercise of property rights is not appropriate.Thirdly,the path of cause of illegal obstruction beyond laws and regulations must be based on the premise that improper exercise of property rights conforms to the constitutive requirements of property crimes,and the self-relief action as cause of illegal obstruction beyond laws and regulations has strict conditions,the applicable space is very small.The fifth chapter is the practice of criminal law evaluation on improper exercise of property rights.This chapter corrects the two criminal law evaluation errors on improper exercise of property rights,puts forward the specific rules of criminal law evaluation of such behaviors,and tries to evaluate the typical cases of improper exercise of the right of control and improper exercise of the right of claim in practice.In the criminal law evaluation on improper exercise of property rights,the concept of "no punishment for the exercise of rights" and the practice of confirming the establishment of property crime by illegality of means cannot fully evaluate the infringement of legal interests of such acts.According to the claim of this paper,the criminal law evaluation on improper exercise of property rights should be carried out according to the following steps.Firstly,from the subjective and objective aspects to determine whether a certain behavior belongs to improper exercise of property rights discussed in criminal law.The behavior of taking property does not constitute the property crimes,improper exercise of property rights does not belong to the property crime;the actor lacks the proper purpose of realizing the property rights,there is no dispute to deal with it according to the corresponding property crime.Secondly,through property damage,purpose of illegal possession,and cause of illegal obstruction beyond laws and regulations,we can judge whether improper exercise of property rights has a punishable infringement of legal interests of property.In improper exercise of the right of control,when the perpetrator illegally obtains the property with the right of control illegally,there is no property damage and no property crime is established;when the perpetrator illegally obtains the property with the right of control legally,property damage occurs,but the perpetrator does not know that there are other people’s legal property rights,and there is no subjective purpose of illegal possession.It is also necessary to judge whether the behavior can be set up as a self-relief action to exclude the punishment.In improper exercise of claim,when the perpetrator illegally obtains the property in line with the content of the right,there is no property damage,and no property crime is established;when the perpetrator illegally obtains other property,property damage occurs,and there is the purpose of illegal possession,continue to judge whether the act may be justified due to the compliance with self-relief action.Although it is theoretically believed that it is possible to prevent improper exercise of the rights from criminal illegality through self-relief action,the establishment conditions of self-relief action are strict,and the applicable scope in reality is extremely narrow.Thirdly,it is necessary to consider whether there are other criminal illegalities of the act.The behavior of taking back the property illegally is a typical behavior of improper exercise of the right of control,which has different types according to the nature and subject of possession.Among them,how to evaluate the owner’s illegal withdrawal of property from the legal possessor is the most controversial,which can be divided into two types.One is the owner’s illegal withdrawal of the public authority’s seizure;another one is the owner’s illegal withdrawal of the legitimate possession of others.This paper holds that property damage objectively occurs in the behavior of the owner illegally taking back the property seized by the public authority,but the actor has no illegal purpose of replacing the original owner to control the property,does not establish property crime,but may constitute other crimes.The owner’s act of taking back the property legally owned by others objectively infringes on the legitimate property rights and interests of others.If the actor does not know that there are legitimate property rights of others on the property,he does not have purpose of illegally obtaining the property control interests,and does not establish the property crime.In principle,this kind of act establishes the property crime,and only a few cases establish self-relief action to exclude the criminal illegality.In practice,improper exercise of the right of claim is mainly the self-realization of the creditor’s rights.The behavior of self-realization of legal debt and natural debt is in line with the "right" requirement of improper exercise of property rights.The behavior of self-realization of illegal debt has no legitimacy.Only when the actor mistakenly recognizes the existence of legal debt based on objective facts,it is possible to affirm the legitimacy of subjective purpose.There are many controversies on the criminal law evaluation on behavior of realizing legal creditor’s rights by oneself in theory and practice.This paper holds that the third paragraph of article 238 of the criminal law is the provision of attention that the act of illegal seizure,illegal detention or other illegal means to realize the creditor’s rights may not be established as a property crime,because the debtor has no substantial property damage,and the criminal illegality of the act of means can be evaluated separately.In the behavior of extorting compensation by means of coercion and threatening state organs with petitions for money due to economic disputes,although the legality of the coercion cannot be the reason to exclude the coercion,but when there is a real fact of safeguarding rights,the creditor’s pressure on the debtor by legal means for compensation does not reach the coercion enough to suppress the other party’s freedom of will,so blackmail is not established the crime of extortion.To determine the subjective purpose of illegal possession of the actor,we need to consider the objective facts of rights,the claims of the actor and other specific facts.When the content of the creditor’s right is clear,it is illegal for the actor to take money beyond the scope of the creditor’s right.When the content of the creditor’s right is not clear,as long as the claim does not violate the prohibitive provisions of the law,it is certain that the actor has no purpose of illegal possession.