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Systematic Study On Crime Of Possession

Posted on:2006-04-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y N LiuFull Text:PDF
GTID:1116360155454586Subject:Criminal Law
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Crime of possession research in the criminal law educational world has already formed one kind of not too big nor too small academic sound . According to myself preliminary statistics, altogether appeared 30 journal articles from 1994 to 2004, two works. These academic achievements separately have carried on more thorough inquiring into some angle and in the direction to crime of possession related question with the elaboration, but is not difficult to discover, this kind of research depth and dynamics or exist in a big way limited.Concrete said has such several prominent problems, one obviously is weak to crime of possession longitudinal historical research; Two, bases on the domestic criminal law, mentions in other country criminal law having few and shallow crime research condition, lacks the crosswise comparison mentality; Three, that is passive to the judicial practice attention, limits to the charge indictment confirmation, but unusually to this kind of crime reconsidering research. so the research basically is restricted in the annotation legal science, therefore caused this item to study the present to have the condition which relatively tranquil even bogged down, it is not too easy to have a bigger breakthrough. But the question is, the correlation which initiates theoretically to be chaotic and the change still does not have clearly straighten out, the science which has turns over to the position question still unresolved. under this kind of specific academic background, I decided to continue to study crime of possession, looks in facilitates reasonably and finally located in this inevitable historical tendency to be able to have an achievement. In addition, author therefore completed the paper after master, certain published journal articles, definitely makes to order this paper also to have following several considerations: First, the research of having crime academic environment is maturer. Any humanities domain research all inevitably is following the argument and the confrontation, any takes shape the theory development and the consummation all is not from for, it is doomed to have in intense, the full conflict and the discussion can be clear day after day, finally forms the science to turn over to the position.The achievement with the aid of the academic circles performs reasonably to promote the conformity, by thought the conclusion "has" in the criminal law behavior theory free state, coordinates it with the achievement, not the achievement relations, remoulded the harm behavior theory system already to be just round the corner; Next, the reconsidering having crime judicial material is more substantial. 97 criminal law promulgating, has already implemented seven or eight years, already provided could sufficiently to have the legislation to carry on the examination the time deadline, which had the judicial practice to the legislature feedback information opportunity condition. Inevitably needs to practice to an entity legislation reasonable or not value judgement through the judicature completes, crime of possession legislation rationality may carry on the logic analysis in the rational stratification plane, simultaneously also cannot leave the practice stratification plane reality analysis, incidence rate of cases, putting on record rate, investigation rate, verdict rate and so on digital target also naturally should become the correlation legislation reconsidering basis,that decides the question to crime of possession scope frame also to be supposed; Finally, along with myself to crime of possession research in the breadth and depth some breakthroughs, the earnestly hope may systematize unfolds. Publishes for the first time since 1999, continuously closely pays attention to this kind of crime, 6 years time thinking with accumulates, chews to variousviewpoint and buys in, in addition the strength was planning the profound excavation, the thorough consideration as well as widely sought the information, the author had basically achieved to crime of possession research degree completed the doctoral dissertation the request. Therefore shed this topic, deeply in a big way, names for "Having Crime System Research". Compares with the existing achievement, the author originates the following core viewpoint: First, the establishment of the behavior, causes in the criminal law to expanse the concept of harm behave. As one kind of new harm behavior form, with the achievement which has, had not taken compares, generally says it: As and did not take is a pair located under the bodily condition the concept, the inspection is behavior and the criminal law behavior standard type ---prohibition standard and the order standard match, focuses is the behavior person body sound of something astir behavior; But has is focuses to the fact condition concept,It recognizes by the behavior person to the specific condition to maintain took the construction crime basis, the criminal law must punish is in the specific person and the specific between fact either the legal control or control condition itself, namely has violates is the criminal law stipulation situation standard, forms the matter state property harm behavior, with does not juxtapose as and the achievement on position concept ----behavior harm behavior, the common lower position harms under behavior this concept in the criminal law.To this, in the criminal law standard type including the behavior standard and the situation standard, violates the behavior standard to be allowed because the standard concrete type different separately establishes as doing crime with not doing crime; Violates the situation standard establishment is crime of possession; Second, crime of possession appearance broke through the traditional criminal law causal relation pattern. In the criminal law causal relation generally refers in particular to between the harm behavior and the harm result relations, according to the philosophy in the causal relation general theory, inthe criminal law causal relation also is following first because of the consequence general rule. Crime of possession appearance actually broke through this traditional pattern, has molded one kind of causes and effects synchronization new form. In crime of possession, the harm behavior is has, the harm result also is has, has the behavior the implementation and has the result between the appearance, also does not have in the time the separation spot, also does not have in spatial the minute point, in other words the two already combined into one in the phenomenon shape.Certainly, investigates its essence, appears this kind of causes and effects synchronization the reason to lie in the criminal law to suppose the crime artificial, the criminal law considered stemming from the protection society's criminal policy, some kind of relatively static condition itself behavior (refers to generalized harm behavior) and the crime, expedites settling condition crime ----crime of possession this kind of new criminality form; Third, to compare with finish crime , condition crime, continuous crime and so on , crime of possession has formed new crime category ---situation crime. Namely becomes to violate the performance to complete the behavior and the condition after the crime also ends, the condition violates the performance to complete the illegal condition after the crime alone to continue, continues to violate the performance to complete the behavior and the condition after the crime also continues, but crime of possession by the behavior person and the specific between control and the control relatively static situation took own unique style, the concrete manifestation gathers a nature for the behavior and the illegal condition while the phenomenon shape, and the synchronism, with the category which has not been all same, only can become a kind in addition, the author thought may call it situation crime; Fourth, Comparing with the crime done crime shape type , crime of possession established one kind of new done crime type ----to have .crime The result violates to the result appears took done crime the standard, the danger violates by the critical condition forms took done crime the standard,the behavior violates to the behavior completes took done crime the standard, the action violates take begins the behavior as done crime the standard, but crime of possession actually forms take the possessor and the specific between control and the control situation namely as done crime.Obviously, several kind of done crime shapes types all are take of the identification sign result of by the behavior as well as the behavior, but crime of possession behavior performance is one kind of situation sex act, takes the judgement done crime only standard by the specific situation formation, the manner no matter by any type way, including on own initiative facilitates or passively maintains and so on immediately each reason way, so long as the behavior person is in the situation which has, the crime namely reaches done crime.And this kind of situation itself concurrently is having the behavior and the result dual role, done crime the form all incompletely tallies with other any shapes, only can create one kind of brand-new done crime shape type in addition, the author thought may call it "has crime", with finally violates, dangerous crime, behavior crime, the action violates compoundly, with is located a done crime shape type under the concept; Has not completed in the shape in the crime, crime of possession also established newly stopped the shape type.It only has the crime preparation and the crime implements two stages, that may form the crime in the preparation stage to stop the shape and the crime preparation shape; After enters the implementation stage, usually only can establish done crime shape, has not established the crime to stop the shape the space, but the crime attempted shape formation reason only is restricted in under the understanding mistake not to be able to violate the situation, cannot violate including the object with the situation cannot violate; Fifth, crime of possession took one kind of supplement crime, only has constitutes other reason when the judicial organ incapable proof behavior person or the following related charge, only then may alone to this determine guilt, an establishment having crime model crime. Namely the pawnshop manner has something only is implements when its crime must pass throughthe stage or the inevitable result, loses to had the rationality which the situation alone appraises, alone determines guilt, but establishes its crime the preparation shape or afterwards cannot punish the condition, does not construct the round number crime.Also from this had decided crime of possession only establishes under the extremely special situation implicates crime, absorbs crime: Crime of possession cannot become implicates violates to implicate the crime, but may take this crime joins other method crimes and the result crime and the establishment implicates crime; After had the situation already to surpass other reason following crime demands reasonably to last the time boundary, then established the absorption to violate crime of by the absorption. Only has the situation when does not have any host objective on with its crime the relation, only establish crime of possession and its crime standard crime; Sixth, crime of possession proof responsibility undertakes the way is a challenging new question. Facing between the person and the thing static control condition, directly had been established crime of possession, or must prove the existence of the behavior person subjective crime which can determine guilt. Former fell into the strict responsibility to determine guilt , that did not take for us; If needs the existence of the certificate subjective crime, who should undertake this kind of more difficult proof responsibility become a stern question.In order to seek in this kind of crime the judicial organ with to have between the suspect to prove the responsibility undertakes on best balance point, it should establish the special possessor "specially to defend" the system, namely in persisted controls the side to present evidence under the major premise, entrusts with has a behavior person special procedure, enable it to have the opportunity in to have under the condition completely innocent point of view on oneself to make the innocent defense. Namely in the lawsuit practice concrete operation procedure should be: First undertakes by the complaint institution proved the accused person has the specific fact as well as the correlation type constitution important document, whether there...
Keywords/Search Tags:Systematic
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