On The Possession In Criminal Law

Possession is an important part of criminal law to study property crime.The possession in the criminal law is different from the possession in the civil law,and it is also different from the holding in the criminal law and all the concepts in civil law.Point of view to judge includes factual elements also has to include standard elements,however,academic circles have a concept that dispute mainly depends on the code elements in the possession of different positioning,factual possession and standardization of split on whether the exact meaning and normative of the normative judgment,is crucial for possession.Insist on factual factor is the criminal law plays an indispensable content,in the possession of judgment is the first to consider,and normative elements as the content of the selectivity of possession in criminal law,its action also is only complementary to the factual judgment that point of view,and to the study of property crime in the criminal law judicial guidance function.Judicial guidance function displays in: in terms of confession,is to distinguish between crime and not crime,this crime and those crimes as well as the important basis in the form of crime to stop,because through the study of the change of state of possession,plus change different ways and means,the establishment of the crime of also is not the same;In terms of penalty,the study of possession can make a reasonable explanation for the punishment of different property crimes.This paper is based on the practice of some typical cases were analyzed,and then clear that possess applicable rules of the concept of argument ascription problem of the possession of special circumstances,in order to achieve on the basis of possession to property crime in the judicial cognizance and the purpose of the reasonable explanations of punishment.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is an overview of possession in criminal law.Next,it discusses three kinds of occasions in criminal law,the first is "possession" in the purpose of "illegal possession",which exists as a purpose.The second is the "possession" in the crime of embezzlement,which is different from the static state of possession but emphasizes more on the dynamic control and use of property,which exists as behavior.The third is as static state of "possession",which in fact established control state is mainly used to explain the components of the property crime contains the "possession",which is the main research contents in this paper.It is the possession of legal interests which is infringed in the property crime of criminal law if the possession under the third kind of circumstances is increased to one kind of benefit.Because this paper mainly introduces the truth condition of possession,and the rules to be used for ascertaining the facts state,so is involved in the last part of the painting as an illegal purpose of possession and possession as legal interests.As a state of fact,possession has the characteristics of fact and exclusiveness.Next,through to the possession in criminal law comparing with the hold in criminal law,criminal law has compared with all of the civil law and criminal law and civil law in possession,to more clearly recognize the connotation and features of possession in criminal law.According to different standards,in the end,this paper introduces the possession is divided into different types,this paper introduces in detail according to the different performance of physical control governs facts,to show the different types.The second part,the determination rule of possession in criminal law.Then,the paper discusses several kinds of possession rules in the criminal law.First suggested occupies the rules are facts of cybernetics,advocates of the only rely on facts control,who controls property in a matter of fact,who set up possession of property,but it cannot solve the problem of the cognizance of the joint;Based on the fact that cybernetics disadvantages,some scholars put forward the standardization of concept,argues that the essence of possession is normative,standard is mainly refers to the legal norms,social idea and code of ethics,broadly include certain industry standards.Emphasize a kind of based on the concept of social space dominance relations arising from the concept of taking the normative,judge occupies existence is the core standard of distribution areas,as long as the property in its own space domain to obtain possession,unless at the mercy of others to have a closer relationship.However,the prescriptive occupation ignores the fact control itself,the suspicion has the view of the possession,and confuses the relation between the establishment of possession and the legitimate possession of the two;Also some scholars put forward the cognizance of possession should include factual elements and duality of normative elements of possession,duality occupies a factual control and normative control said improved,but the defect of the concept of duality possession is not clear that what is the nature of possession,the fact factors and regulate who occupies a dominant position,therefore,making it easier for the concept of special switching back and forth between in factual possession and normative,and on the ownership of the problem of sealed material is difficult to justify itself;In duality has said on the basis of development and the ease of facts control,said claims that possession should adhere to the control of the dominant position,only at the time of the facts is difficult to control factors that,as a supplementary function to make sure the factors of standardization.The author agrees with moderate sex fact cybernetics,no dominant facts,no possession,to mitigate the fact that the concept to explain the specific property possess properties,both possess factual,and other objective factors,avoid islanding understanding.The third part is the cognizance of possession in criminal law under special circumstances.Next,the ownership of some controversial specific things in practice is mainly selected to demonstrate and explain,so as to explain the rationality of the existence of mitigating facts cybernetics.In practice that sealed the possession of content ownership and possession deposits belong there are many kinds of theories,controversial,adopt different standards corresponding can draw different conclusions,sealed material possession belonging to major consignor has said,the consignee has said,distinction and correction difference,and deposit has said,the bank also exists mainly customer possess said,such as binary and double possession theory.The writer is trying to explain the fact that there are some mitigating factors in the theory of reality control.Sealed material as an integral whole occupied by the trustee,both on the criminal law of the judgment fact said control dominant position on the basis of the reflection,also conforms to the social public to practice the habit of sealed material belonging.For possession of the deposit belongs to binary said,should be adopted in the deposits of "cash deposit" and under the dual nature of "deposit" creditor’s rights,with the introduction of property certificate and property certificate of the views and opinions of the separability of cash deposit "quasi real right,creditor’s rights that deposit cash held by the bank,the deposit of creditor’s rights is occupied by depositors,to solve the cases in the practice of remittance,errors and withdrawals is of great significance.The fourth part is the judicial function in the criminal law.Then,through the theoretical analysis of the possession in the criminal law,and the typical cases in practice,the judicial practice significance of the possession of the criminal law in the criminal law is proved.Adhere to the criminal law of the standards,whether different ways of possession of the infringement,and analysis of transfer,etc.,in the aspect of conviction explain the crime and property crime is not a crime,this crime and those SINS and the complete form of the accomplished and attempted and punishment for aspect and so on have great significance in guiding.Is it the exercise of the right or constitutes a property crime in the judicial practice when all persons take possession of their belongings? The law that relates to property crime in criminal law is all or possessory.It is the possession of the law and interests that the property crime is considered,which has a good effect on the cognizance of the behavior of the infringement of the legal possession and the illegal possession.Through the analysis of the different ways of possession of the infringement,embezzlement and robbed crimes and to distinguish between crime and destroys SINS,and in insist on control theory,on the basis of judging the accomplished and attempted of the property crime are clear.In the end,the author makes a reasonable explanation for the difference of the punishment between the crimes of property crimes.