Research On The Possession In Criminal Law

The possession in criminal law is the core element of identifying property crime.Whether its object,judgment standard and protection scope are clear or not is directly related to whether the property crime can be correctly identified.However,in the current criminal law,the object of application,the standard of judgment and the scope of protection of the possession are not clear.It is difficult to provide unified and reasonable standard guidance for the identification of property crimes,which seriously affects the unity and justice of criminal justice.In view of this,on the basis of examining the issue of the possession in criminal law,on the basis of the principle of law order unification,the principle of clarity of criminal law and the concept of modesty and restraint of criminal law,this paper will clarify the object and judgment standard of the possession and the scope of protection of the possession,in order to construct the theory of the possession which is suitable for the legislative practice and judicial status of property crime in China,so as to promote the effective governance of property crime,ensure judicial justice and enhance judicial credibility.In addition to the introduction,the paper is divided into five chapters:Chapter1“Clarifying the concept of the possession in criminal law”,this paper studies the origin,definition,relationship and types of the concept of the possession in criminal law.Among them,through the study of the origin and definition of the concept,it can be seen that the possession in criminal law originated from the possession habit in the early society,which is a description of the fact that people control and dominate the property.In essence,it has the attribute of fact and should be defined as fact possession,while the so-called concept possession belongs to the pronoun of rights in essence,which is different from the possession in nature and function,and cannot be classified as the possession,otherwise it will violate the logic;By examining the relationship between the possession in criminal law and related concepts,we can see that there is no difference between the possession in criminal law and the possession in civil law,but there is essential difference between the possession and ownership and quasi possession.Therefore,in the study of the possession in criminal law,we can neither take the difference between the possession in criminal law and that in civil law as the logical starting point of argument,nor can we confuse it with ownership and quasi possession;Through the investigation of the concept type of the possession in criminal law,it can be seen that there are three three kinds of the possession in criminal law,namely,the possession used to explain the acquisition behavior such as theft and fraud,the possession in the purpose of illegal possession in the subjective level and the possession regarded as the object of property crime in the object level.As far as the three kinds of the possession are concerned,they are consistent with each other.However,the current general view that there is no corresponding relationship between the possession at the subjective level and the possession at the objective level ignores the content that the purpose of illegal possession belongs to criminal intent,which is worth discussing.Chapter2 “Problems in possession in criminal law and inspection”,this chapter mainly analyzes the existing problems of the possession in criminal law and the causes of the problems.Among them,through the investigation,we can see that there are some problems in the possession in criminal law: first,the applicable object is not clear,that is,whether the property interests can be interpreted as the object of the possession can not be accurately grasped;second,the judgment standard is not clear,that is,the criminal law circle has not formed a clear understanding of whether to judge the possession according to whether the property has the actual control power or the space field in which the property is located,or the ownership or the intention of possession;Thirdly,the scope of protection is not clear,that is,whether the possession can be identified as the object of property crime,the criminal law circle has not formed a comprehensive and rational understanding,which leads to the difficulty in understanding and identifying property crime.It can be seen from the analysis of the problem of the possession in criminal law that,intuitively,the ambiguity of the possession object and judgment standard is mainly related to the connotation of arbitrary interpretation of the possession,and the ambiguity of protection scope of the possession is mainly related to the failure to accurately grasp the limit of criminal law’s involvement in the protection of property rights.Fundamentally speaking,it’s the emphasis on the independent status of criminal law relative to civil law,that is,in the understanding of the possession in criminal law,the academic circle mostly put the legislation and theoretical accumulation of civil law aside,only from the internal perspective of criminal law to examine,so that the understanding of the concept,judgment standard,object and protection scope of the possession lost its basic basis,thus falling into “self talk”.Chapter3“The theoretical basis of solving the problem of the possession in criminal law”,this chapter is mainly to consolidate the theoretical basis of the possession in criminal law from three aspects of the principle of unification of legal order,the principle of definiteness of criminal law and the concept of modesty of criminal law.Among them,the principle of unification of legal order requires that the identification of the possession in criminal law be consistent with that in civil law.However,to advocate the principle of the unification of legal order doesn’t mean that the understanding of the value judgment of whether the possession can be regarded as the object of property crime should be absolutely consistent with the civil law,otherwise the boundary between criminal law and civil law will disappear and the self consistency of criminal law will be weakened;The principle of definiteness of criminal law requires that the definition of the criterion and object of the possession should be specific and clear.Only in this way can the general public easily understand what kind of behavior is prohibited by criminal law,such as theft,fraud and so on.However,to advocate the principle of definiteness of criminal law doesn’t mean that we should make a purely physical judgment on the possession,otherwise it will limit the scope of establishment of the possession;The concept of modesty of criminal law requires avoiding the improper expansion of the protection scope of the possession,that is,the suppression control can’t be carried out at the expense of civil liberties in order to maintain the property order.But to advocate the concept of modesty of criminal law doesn’t mean that we can break through the principle of legality and decriminalize all acts that infringe upon the possession of others,otherwise it will cause loopholes in punishment.What should be noted is that the “law” in the principle of legality refers to our country’s criminal law legislation itself,so the definition of the protection scope of the possession should be based on our country’s criminal law legislation,neither taking judicial interpretation as the starting point of argument,nor ignoring the differences between Chinese and Japanese criminal law legislation to copy the Japanese criminal law theory.Chapter4“The solution to the problem of the possession in criminal law”,on the basis of carrying out the principle of unification of legal order,the principle of definiteness of criminal law and the concept of modesty of criminal law,this chapter defines the object,judgment standard and protection scope of the possession in criminal law.Among them,in the definition of object,based on he principle of unification legal order and the principle of definiteness,the object of the possession should be limited to property.At present,from the perspective of legislation and interpretation,the viewpoint that the property interest belongs to the object of the possession has either made the mistake of putting the cart before the horse in the method of argument,or neglected the difference in the way of stealing and refusing to pay labor remuneration,or violated the principle of criminal law,which is not advisable;As for the definition of judgment standard,it should also be based on the principle of unification legal order and the principle of definiteness,mainly based on the space field where the property is located,not on the basis of the right to dispose of the property,nor on the meaning of possession as an independent element of the judgment of possession;In terms of the definition of the scope of protection,based on the principle of unification legal order and the concept of modesty,combined with the actual investigation of criminal legislation and judicature in China,it can be seen that the scope of protection of the possession should be limited to the possession with own right.If the possession is identified as the object of property crime,it will bring about systematic dislocation and impact on the “qualitative+quantitative” legislative model in China,improper expansion of the punishment scope of property crime and so on.Chapter5“the identification of the special possession in criminal law”,this chapter mainly makes the identification of the possession of the deposit,the sealed object and the property of the deceased,which are controversial in judicial practice.Among them,in the identification of deposit possession,on the one hand,on the basis of making clear that the deposit cash will be transferred to the bank after it is deposited in the bank,the bank is not the “safe box” of the depositor,the depositor’s withdrawal is subject to the bank’s substantial examination,we should deny the viewpoints that the depositor owns the possession of deposit cash in law,and that the depositor owns the possession of deposit cash together with the bank in law.In the determination of the possession of the sealed object,we should affirm the possession of the sealed object by the client on the basis that the trustee actually controls the sealed object,but the “sealed” state itself means that the client retains the right to control the sealed space and the property in the space;In the identification of the possession of the property of the deceased,it should be clear that the formation of the possession is based on the control in fact,and once the victim dies,he will no longer enjoy the control and domination of the property,so he can neither confirm the continuation of the possession of the property of the deceased nor the possession of the property of the deceased.Similarly,when the heir doesn’t actually control the property,it is difficult to confirm the heir’s possession,otherwise it will lead to the hollowness of the possession.In this regard,according to the space domain standard of the possession,we should judge the ownership of property possession according to the space of the property.