On The Theory Of Property Crimes

Property crimes are most frequently committed, and also most involved with hard cases and theoretical disputes. Apart from the fact that disagreements have always existed in traditional issues such as the legal interest, occupancy, infringement and purpose of the property crime, theories of property crimes are yet being challenged by the growing importance of property interests in society, which is instantiated by the pan-securitization and electronization of property. Moreover, though property amount of crime has become a feature of our property crimes law under the"nature & amount"legislative approach, it still remains incompatible with our mainstream crime theories of Western origin without some theoretical innovations. Taking all above into consideration, this treatise elects to make a study of property crimes, in which the author will try to answer the traditional and contemporary hard issues of property crimes theory in a Chinese perspective and according to the Constitutional framework of property protection, while also making an effort to cast a light on the future tendency of property crimes, so as to provide an approach both suiting the practical principles and helpful in perfecting the system of our property crimes law.This treatise, out of reasons mentioned above, contains four chapters plus preface and conclusion.The preface part, apart from defining the Chinese background of the discussion this treatise embarks on, explains what impact has the new development of property crimes made on according studies and what efforts this treatise tries to make.The first chapter is Legal Interest of Property Crimes Law. This chapter, after a brief summary of related opinions, points out that the legal interest of property should be specific, that is, be connected with four factors: property interests, infringement, criminal law and the victim. After deeper research into these four factors, this treatise adopts the"property domination theory"to sum up the legal interests of property in the criminal law sense: the legal interests of property is the factual domination or the realization possibility of rights which the victim cannot exercise his personal means to sufficiently protect from certain injurious acts. The study of legal interest of property is ultimately to define what property crimes refer to. In this respect, the current hot points of controversy are the incriminability of exercise of rights in a criminal law prohibiting way, the infringement on contraband, giving of matters with an illegal cause or gambling funds. For this purpose, this chapter, according to the analysis of the interest structure between the actor and the victim with subject property as axis, puts the"property domination theory"into use and tries to give answers to the above questions.The second chapter is Constitution of the Property Crime. This chapter discusses in such respects as objective holding and control, infringement and damage, as well as subjective intention and purpose. In objective respect, studies about subject matters have been largely satisfactory, so this treatise mainly focuses on control, infringement and damage relating to subject matters. In subjective respect, the main issues are: first, does the amount factor of property crimes need to be realized; second, how to do with a mistake about property amount; third, how to differentiate the illegal purpose of possession and of utilization. To the first two issues, this treatise, with the assistance of the normative constitution of the property crime, creatively points out that the amount in property crimes includes amount of act, which is of contents of cognizance, and amount of result, which is not. So, on the issue of cognitive mistake on amount of act, this treatise supports the approach"when what in his act is more apprehensible than what in his mind, what in his mind counts; when what in his act is less apprehensible than what in his mind, what in his act counts". On the latter issue, this treatise adopts a type theory in legal methodology to resolve.The third chapter is The Amount Factor in Property Crimes. This chapter mainly deals with four questions, i.e. determination, aggravation, accumulation and repetition. In the section Determination of Amount, the treatise argues that the criterion should be the objective value of the victim's loss in property. In the section Aggravation for Amount, the treatise, on the basis of the loss theory in determination of accomplishment and the analysis of how to do with the unaccomplished offender, centers on the solution for partly accomplishment and partly unaccomplishment in aggravation for amount. In the section Accumulation of Amount, the treatise discusses the possible aggravation of punishment under the judicial technique of amount accumulation, but also admits the rationality of amount accumulation within the same crime requirements, and then bring up the specific rules of amount accumulation. In the section Repetition, the treatise holds that the incrimination of repetitive minor thefts cannot be justified and should be abolished, and then surveys the question of repetitive aggravation of punishment on the basis of repetitive robbery, and points out that repetitive aggravation has insufficient justification and should be limited in application.The fourth chapter is The System of Property Crimes. This chapter first compares various property crimes systems in and aboard and then points out that the feature of our criminal code's system is: 1) the creative provision of two crimes, misappropriation and sabotage of production or operation; 2) the transfer of graft into the chapter Graft and Bribery; 3) the transfer of stolen goods crimes into the chapter Crimes of Disrupting the Order of Social Administration; 4) the transfer of economic frauds into the chapter Sabotage of Socialist Market Economic Order; 5) ignorance of immovable and property interests; 6) emphasis of the differentiation between public and private property, and mixture of equal and different protections. The first four features involves whether the setting of property crimes system is reasonable, and the treatise, after specific surveys, answers yes. The last two features, on the other hand, involve how to perfect the system. With the tendency of the development of property crimes system fully studied, the treatise argues that three principles as follows must be upheld in perfecting the system: 1) both property and property interests must be sufficiently protected; 2) public and private property should be equally protected; 3) the protection should be specifically designed featuring the belonging and use of property this treatise set a goal to solve the critical problems in the property crimes law of our country,...