The Related Issues Of Possession In Criminal Law

Property Crime which is the one type of the most traditional crimes, the formal constitution of this type crime becomes more and more complex in the modern society where the commodity transaction becomes more and more complex and the property circulation becomes more and more frequent. Theft, snatch, rob are all the crimes that transfer possession of property from one to others. But establishment of misappropriation need not transfer possession of property. There is the same common point of possession in all these crimes. Therefore, the full-scale study of possession theory is helpful to distinguish this crime with that crime, criming with not-criming. The study of possession theory, firstly, is dependent on the study of rechtsgueter,Secondly, we must ensure that possession is a status of controlling property as a matter of fact. Finally, we must analyze the conditions that establishment of possession needs possession's fact and intention. So, the article will analyze the possession theory from the three parts and I hope that these researches are of benefits to properly definite the relationship of possession of property.The first part of the article is introduction. I have mainly introduced the intent of this essay. The second is main part, which contains three charters.The first chapter of the article is mainly introduced the safeguarding rechtsgueter of property crime In this partâ… firstly analyze the development of possession theory in Japan. It contains ownership opinion, possession opinion and middle opinion. Secondly, I analyze the development of possession theory in our country. It contains ownership opinion, mixed opinion and possession opinion. Finally, it is author opinion. The author considers that the safeguarding rechtsgueter of property crime is based on safeguarding the possession to safeguard the ownership and other order benefits. At the same time,author confirms that the criminal law shouldn't protect the possession which is not identified by the social public opinion and deserve to protect When the possession conflicts with the proprietary rightI mainly introduce the concept of the possession in the second chapter. In this chapter I firstly introduce all kinds of possession's concepts in the criminal law's theory of civil law system, and the common opinion of the possession's concept is controlling the property as the matter of fact and law. Secondly, I introduce the possession's concepts in the criminal law's theory of Anglo-American law system. It confirms that the possession's concept is controlling the property as the matter of fact and law and at the same time it thinks that possession should be a kind of right. Finally, I introduce the concept about our country. The theory in our country has not study deeply, and mainly reference from TaiWan to a great extent. Therefore, It confirms that the possession's concept is controlling the property as the matter of fact and law, too.In the third chapter, I analyze the factors of possession's establishment. The first factor is objective factor. It is that people must control the property in fact.How to judge the objective factor can summarize from the next two aspects.on one hand we can judge it from realistic perspective.on the other hand we can infer its establishment by social public opinion. The second factor is subjective factor.It is that people must have the intent on possession. The people who possess the property do not need the clear, continuous intent and they need not have the mental capacity.The third part is epilogue, The author will summarize and generalization article point of view.