On The Deposit Possession Of Property Crimes

Nowadays,in the property-embezzling crimes referring to deposit.Whether the practical operation in practice or the doctrinal dispute in theory,it all based on the individual cases,not forming an unified and systematic judgment model.Such phenomenon,not only involving the situation that practical staffs or scholars drawing different conclusions from different angles,but also a same practical staff or scholar coming to diverse inferences even contradictory ones within the homogeneous cases on account of different views or objectives.Due to the argument about the property-embezzling crimes referring to deposit always fierce and everlasting and this type of cases are not worthy and multiple,we urgently need a rounded system to affirm such crimes above in order to maintain the systematic harmony and logical consistency.Practical problems promote the discussion about the possession of deposit in our theoretical cycle.Withal,German and Japanese criminal law theories have certain significance to us.The discussions about the possession of deposit in Japanese criminal law result from a jurisprudence.And then generate some doctrines like “The Theory of Deposit or possesses the deposit” and “The Theory of Bank possesses the deposit” and “The Eclecticism”.Some domestic scholars quote these theories directly,but restricted to the provisions of Japanese criminal law,the discussions about the possession of deposit in Japanese criminal law academia can't directly copy to using in our country.It can only be used to be a guidance and reference.German criminal law haven't take the possession of deposit as a research direction to discuss,though providing a thought in the property-embezzling crimes referring to deposit,within the questions about getting bankbook or bank card or other certificate for credit right stand the behaviors of getting properties and their relevancies.The concept of Possession in criminal law is learnt from the concept of Possession in civil law.Because of the different purpose,they are getting the different connotations.But the concept of Possession in criminal law serves as an important distinguishing label in property-embezzling crimes.And precisely because this,if we can define the possession of deposit,we'd distinguish this crime or that crime in the property-embezzling crimes referring to deposit clearly.As a kind of Possession,Possession of Deposit must conform to the general rule of Possession.The concept of Possession in criminal law showing a trend of conceptualization increasingly after going through the development and evolution.That getting the judgment about Possession is no longer decided by physical space or distances or ascendant solely,it is decided by a comprehensive consideration from norms and facts,which is the side of facts and the side of norms of Possession.As the object of the Possession of Deposit,“Deposit” is generally discussed under the circumstance that Deposit is directly linked to the cash.But the essence of “Deposit” is a right of obligatory claim based on the agreement between depositor and bank.This right of claim is interknit but independent with the cash,so the concept of “Deposit” should be divided into the “Cash on Deposit” and the “Deposit Claims”.The “Cash on Deposit” refers to the cash in the bank,and the “Deposit Claims” refers to the basic rights that can request to the bank.According to the general pattern of Possession,the side of facts and the side of norms of “Deposit Possession” is just corresponding to the concept of the “Cash on Deposit” and the “Deposit Claims”.That is,from the view of facts,the “Cash on Deposit” is possessed by bank who is the direct controller of the cash,from the view of norms,the “Deposit Claims” is possessed by depositor who is the obligee of the right of obligatory claim.And on this occasion,the “Deposit Claims” is a kind of “Interests of Property” that can be used as the object of Possession.Involved in the property-embezzling crimes referring to deposit,“The Theory of Separation” is worth referring to.Occupying the credit certificate is not equivalent to occupying the creditor's rights under the certification.The behaviors of getting passbooks or bank cards or other debt obligations should be respectively judge from the behaviors of withdrawing and other acts.This is the logic of application of “Deposit Possession”.Based on the foregoing,for this kind of crimes,we can start from the view of “Deposit Possession” to determine which rights and interests that the violators infringe.And finally decided whether the perpetrator committed a crime and how responsible for an offence to get an unity of applicable standard and logic,in case of the contradictions within the system when meeting this kind of crimes.