On The Judicial Presumption Of The Purpose Of Illegal Possession

As a typical form of intentional crime,the purpose of illegal possession belongs to the subjective element of excess,which is of great significance to correctly distinguish crime from non crime,this crime and that crime.It is necessary to have a deep understanding of the concept of illegal possession to determine whether the perpetrator has the purpose of illegal possession.According to the general view of our country,the purpose of illegal possession includes the intention of exclusion and the intention of using.The meaning of exclusion refers to the intention of excluding the obligee and dominating the property with his own will.The intention of exclusion shows a tendency of moderation,which can constitute a corresponding crime when the obligee’s possession is temporarily excluded,but the possibility of the obligee’s use of property is worth evaluating by criminal law.The intention of use refers to the actor’s intention to make use of the property in accordance with the economic use of the property,which has the function of distinguishing this crime from the other crime.The standard of identification of intention to use is also gradually relaxed.The perpetrator who uses the property in accordance with the reasonable use of the property can be identified as the existence of the intention to use as long as the behavior is used in a way other than destroying the property.There are still two different views on the elements of the purpose of illegal possession in the theoretical circle of our country.However,in the judicial practice,we still take the theory of exclusion and use of will as the main points of judicial judgment.The purpose of illegal possession,as a subjective element,is the subjective element of the actor.Besides the actor’s voluntary confession,there is no other direct evidence to prove it.Therefore,it is difficult to prove in the process of criminal proceedings.The purpose of illegal possession belongs to the result purpose in the crime of intent,which can be determined by the way of judicial presumption,a series of indirect evidence and on the basis of empirical rules by the judge through free evaluation.Judicial presumption consists of three elements:rule of experience,basic facts and presumption facts.The rule of experience is generally accepted by the society,which is different from personal experience;the proof of basic facts should reach the criminal proof standard of excluding reasonable doubt;on the basis of the empirical rules and basic facts,the presumption of facts is automatically established.Different from the general judicial proof which proves the facts of a case smoothly through direct evidence,judicial presumption has the jump and interruption in the process of proof.In the selection of empirical rules and the process of obtaining the presumptive facts through the basic facts,the judge’s subjective factors play a strong role,and there is probability and subjectivity.Therefore,it is necessary to restrict the judicial presumption from the aspects of presumption subject and procedure Fully protect the legitimate rights of the accused.The parties who are adversely affected by judicial presumption should be allowed to rebut the evidence.The evidence of the parties can not only aim at the basic facts,but also directly aim at the presumed facts.When the parties provide evidence against the basic facts,it is the burden of proof.The article is divided into four parts,the first part defines the concept of illegal possession and the purpose of illegal possession;the second part is the identification method of the purpose of illegal possession,discusses the reasons why the purpose of illegal possession needs judicial presumption,demonstrates the legitimacy of the purpose of illegal possession can be identified through judicial presumption and the constituent elements of judicial presumption;the third part discusses the way of judicial presumption The fourth part focuses on the restriction of judicial presumption to fully protect the rights and interests of the parties.