Systematic Study On Crime Of Possession Under Criminal Regulation

Possession crime is a type of crime that contains specific items as content.The current society has entered the era of risky society.With the tremendous development of productivity,the means of crime and the degree of harm have become more diverse and serious.People's desire and need for safety are stronger and more urgent than at any time in the past.At the same time,national governance,especially public policy,should promptly shift to the position of social stability and public safety.National criminal legislation is the most stringent means of adjustment and regulation.Under such a background,it is of course necessary to shoulder its due responsibilities.Possession crimes strictly restrict or even deprive the possession of items that are likely to cause huge social harm and severely endanger social stability,and block the realistic possibility of harming the society through related items,thus ensuring social stability and citizens' personal property.The safety aspect is of great significance.However,this role is essentially at the cost of restricting and depriving citizens of their freedom and rights.Although freedom is relative,the opposite of the expansion of the limits of rights must be the reduction of the scope of citizens' private rights.Therefore,this method of restricting private rights must be restrained,and efforts must be made to find a balance between the restriction of citizens' rights and the protection of social stability.As a tool of criminal law to realize social adjustment,possession crimes also have the function of punishing crimes,protecting citizens' rights and restricting public power.The first chapter of this article is "Concept and Investigation of Possession Crime",firstly analyzing the meaning of possession from the viewpoint of semantics and criminal law,and providing a basis for the study of the concept of Possession Crime.At the same time,based on sorting out and analyzing many viewpoints on the concept of possession crime in the current criminal law circle,the normative intent of studying the concept of possession crime is determined as the normative source of the legal concept,including three elements:legislative value,purpose and function.Among them,the legislative purpose is to constitute the direct source of the normative legal concept,the normative of the legal concept reflects the normative goal that the legislator wants to achieve;the legal value endows the value load function of the legal concept,and the expectation of the value load of the legal concept is the fundamental goal of the choice of legal concept features;Legislative function is the attribute that satisfies the value orientation and social needs of a specific group(usually the ruling class)under the theory of social structure.Therefore,the concept of law is not a natural extension of philosophical concepts in the field of law,but rather reflects the normative intent of the legislator.The standardization of legal concepts not only carries the value choices of legislators,but also reflects the requirements for legislative function determined by the social structure under specific historical conditions.According to the normative root intent of the legal concept,the reinterpretation of the concept of possession crime includes at least two kinds of factors: 1)legislative purpose,legal value and legal function;2)description of fact.The former emphasizes the legislative intent,value orientation and functional needs carried by the legal concept.The concept of possession crime must be conveyed from the criminal law system to ensure the stability of social order and public safety through the regulation of specific items and control behaviors.The latter is to build a bridge between social life and legal life,selecting out some behaviors from social life to the field of legal life according to certain standards.The factual description in the concept of possession crime cannot be separated from the subjective investigation of the perpetrators,and the determination of the objects of possession and the nature of possession also shouldn't be ignored.Through the above analysis,we can redefine the possession crime as follows: a type of crime aims to regulate these behaviors that violating the provisions of the criminal law,deliberately dominating and controlling specific items,which triggers a negative evaluation of the criminal law,and should be punished in accordance with the law.In terms of the scope of possession crimes,although the illegality of possessing huge amount of property with unknown source in the crime of possessing huge amount of property with unknown source is based on legal presumptions,the object of its criminalization is still the act of possessing property with unknown source,so it should be a crime of possession rather than a crime of inaction;the crime of illegally carrying guns,ammunition,controlled knives,dangerous goods endangering public safety and the crime of illegally carrying weapons,controlled knives,explosives to participate in assemblies,parades,and demonstrations are not crimes of possession,because the two crimes not only require possessing the specific objects,but also require that the behavior of possessing specific objects be combined with the behavior of pitting,getting on the bus,participating in rallies,parades,and demonstrations.Possession crime has three typical characteristics: 1)the illegality of possession.Among the nine crimes of possession crimes in my country,the crimes of possessing counterfeit invoices,possessing counterfeit currency,and the crime of possessing a large amount of property with unknown sources,as well as possessing the counterfeit credit cards or counterfeit blank credit cards in the crimes of disturbing the order of credit card management,do not exist qualifier term "illegal" to the possession behavior.The five other crimes including illegal possession of drugs and the illegal possession of another persons' credit cards in the crime of disturbing the order of credit card management all have attributive restrictions on "illegal" possession.The reason is that,the objects of the three crimes without the "illegal" qualifier except for the crime of possessing a huge amount of property with unknown sources are forged invoices,counterfeit currency,forged credit cards or blank credit cards,these items are all prohibited items by law.Their existence is illegal,so the possession of illegally existing items is naturally illegal.There is no need to add the "illegal" qualifier to emphasize the illegality of the behavior.Possession with "illegal" qualifier is intended to distinguish it from the situation of possession permitted by law,such as illegal possession of drugs and permitted possession of narcotic drugs;2)the legality of the objects of possession.Except for the crime of possessing huge amounts of property with unknown sources,most of the objects of possession crimes are contrabands.Prohibited items refer to items that are not allowed to be manufactured,purchased,used,possessed,stored,transported,or imported and exported by law.The purpose of establishing a contraband management system is to maintain socialist construction and the safety of people's lives and property.Therefore,when determining the scope of prohibited items,it is necessary for the statutory agency to accurately assess the social hazards of the relevant items,and to adjust the list of prohibited items in accordance with legal procedures.In this sense,the scope of most possession criminal objects must also be determined in conjunction with the degree of danger of the relevant items,and the legal organs must follow legal procedures in accordance with the law,so this kind of crimes has distinct statutory characteristics;3)the unity of behavior and status.Possession is a state of dominance and control over an object under a certain behavior,so behavior and status are the most unique characteristics of possessing.The status attribute cannot cover the complete connotation of possession,and the behavioral judgment of possession cannot complete the task of defining the connotation.Although there is a difference between the status and behavior of possession,the combination of the two constitutes constructs the attributes basis of the criminal law evaluation on the possession.Chapter Two,whose title is "Theoretical Justification of the Criminalization of Possession and Its Justification Basis",discusses the theory of the criminalization of possession and its legitimacy.No action means no crime.On the criminalization of possession,the first thing to be solved is the nature of the possession behavior.The current criminal law of our country is based on the theory of harmful behavior,and the unity of behavior and status makes it unable to be contained in the dual behavior system of act and omission.Although the third pattern of behavior is supported by some scholars,it also has certain flaws.When a new thing cannot be contained by the existing classification,it is usually feasible to create a new classification,but the premise is that the new thing and the existing classification belong to the same category,otherwise this method cannot be established logically.The status attribute of possession is the fundamental feature different from action and inaction.Because possession cannot be included in the classification of actions and inactions,it is regarded as a new way of behavior.This conclusion is true only when the fundamental premise that possession is one kind of behavior is true.If possessing can't be regarded as an act at all,such a logic method cannot be established.The behavior theory,status theory and the third behavior mode theory all have defects and cannot complete the task of defining the possession' nature of criminal law.The theory of Anglo-American law countries substituting "state of affairs" for behavior is not universal in our country and cannot be copied.Using the theory of legal fiction to falsify possession as an act in the sense of criminal law can more appropriately solve the problem of behavioral theory obstacles faced by the criminalization of possession.The unity of the status and behavior of possession determines that possessing is not a typical behavior in the sense of criminal law,which provides a prerequisite for the legal fiction of possessing;possessing is similar to behavior,including the subjective aspects of the actor Consistency,violation of criminal law norms and harmfulness to society,etc.,the behavioral characteristic provides the basis for legal fiction;based on the concept of no action is no crime,China's criminal law regards behavior as a criminal regulation Objects,and possessing in the context of "status" cannot be integrated into the regulatory system of China's Criminal Code.This is the fundamental reason that legal fiction is need on possessing.Moreover,legal fiction also has the advantages of enhancing the universality of criminal law and promoting the better adaptation of criminal law to social development.At the same time,legal fiction has its own rules.The legitimacy of the fictional purpose,the relevance of the fictional objects,and the limitation of fiction within the original legal framework can ensure the standardization of legal fiction and will not cause the risk of criminal abuse.In terms of the legal basis for the criminalization of possession,it mainly includes four aspects: 1)the public policy in a risky society provides the basis for criminal policy.Potential threats and dangers in a risky society have reached an unprecedented level,aggravating the anxiety and tension among members of the society.Correspondingly,national governance and public policies should be adjusted in a timely manner,focusing more on risk prevention and management.Criminal legal norms,as the concretization of public policies in the field of social behavior norms,should also adapt to this change,change the postregulation model of traditional criminal law theory based on results,and try to meet people's new requirements for safety in the context of risky society.The advent of a risky society and the adjustment of public policies provide a criminal policy basis for possessing crime legislation as a means of realizing advance protection of legal interests.2)the abstract dangerous offense theory under the theory of legal interest protection provides a basis for punishment.Legal interest protection theory believes that the essence of crime is the infringement of legal interests.When the risk of infringement of legal interests reaches a certain level,this level of risk is evaluated as "the result of infringement of legal interests",so that crimes that do not take the result of actual harm as a constituent element in the criminal law obtain a substantial basis for punishment.The danger crime theory provides an explanation path for preventing the unpredictable risks from turning into actual harm in advance.Different from specific dangerous criminals who regard the actual damage to the criminal object as a constitutive element of the crime,the danger in abstract dangerous criminal points to the legislator's first judgment of the existence or possible risk of harming the society.The possession criminal legislation does not stipulate the restrictions and requirements of dangerous caused by possession,so it conforms to the characteristics of abstract dangerous criminals.Possession crime may be the result state of the predicate crime or the preparatory state of the downstream crime,or it may be a behavior that has a major risk of infringement of legal interests on the possession of specific items.Preventing more serious crimes or avoiding the indulgence of crimes committed,and controlling the transformation of the risk of infringement of legal interests into actual harm,are the main tasks of the criminal law system for possession crimes.Therefore,the abstract dangerous crime theory provides a punitive basis for possession crimes.3)an effective way to prevent relatively serious crimes.Generally speaking,if crime preparation is clearly indicated and prohibited,there will be more opportunities to prevent serious crimes.Possession crimes are often regarded as secondary crimes of major crimes,or the state of preparation for serious crimes,restrictions on possession are bound to effectively reduce the occurrence of major crimes or more serious crimes,and can play an important role in preventing more serious crimes.4)rebuttable legislative presumptions and legislative techniques based on the need to intercept crimes.The setting of possession crimes takes the purpose of intercepting other crimes into account and has the nature of complementary punishment norms.It is to change the higher standard proving items of source or destiny crimes which have heavy statutory penalty,to possession crimes which have lower proving requirements to the Proving items with relatively light statutory sentences.At the same time,possession crime has the attribute of legislative presumption.The criminal law of our country regards "unable to specify the source or destination" as a constituent element of a possession crime.When the perpetrator cannot explain the reasonable source or destination of the object he possesses,based on the fact that the perpetrator knows the nature of the object but still possesses it,the source or destination of the specific items he possesses is presumed to be illegal.However,this presumption allows the perpetrator to refute the defense.The legislative value of possession crimes lies in the fact that it is beneficial to plug legal loopholes,tighten the criminal law network,and prevent criminals from evading criminal punishment;procedurally,it is beneficial to improve the efficiency of litigation,reduce judicial costs,and realize legal economy.Chapter Three is "Constitutional Elements of Possession Crimes",using the theory of four elements of criminal constitution as a tool to discuss the elements of possession crimes.In terms of the object elements of possession crimes,the possession object is an important factor in determining the criminalization of possession,and it is also the specific bearer of legal interests protected by criminal law.According to the nature of the criminal object,the legal interests of possession crimes can be divided into four categories: public security,social and economic order,political security and social management order,and the state's incorruptible government system.The following is to demonstrates the two ways to realize the legal interests of possession crimes by means of act and omission.Punishing behaviors that violate the prohibitive norms of the criminal law is the reproduction of legal interests of possession crimes as act attributes;punishing behaviors that do not comply with the imperative norms of the criminal law is the achievement of legal interests under the attributes of inactions of possession crimes.The possession criminal object has a significant impact on the criminalization of the possession behavior.It directly determines whether the possession behavior violates the criminal law and constitutes a crime.The criminal object,as the basis of legal interest,has a guiding and limiting role in the identification of the possession criminal objects.The current judicial practice in our country directly invokes the gun standards in the sense of administrative law,which leads to the low threshold of crimes involving guns,which makes the boundary between the security management of guns and ammunition and the criminal regulation blurry,unclear guidelines,and uncoordinated crimes and punishments.According to the legal interests protected by gun-related crimes,a limited interpretation of guns in gun-related crimes should be made,and the criteria for identifying guns in the criminal law should be appropriately increased,and the guns in the sense of administrative law should be distinguished.The boundaries between the administrative management and the regulations of criminal laws about gun should be clarified,which provides an objective basis and space for the role of two different management functions.In terms of the objective elements of possession crimes,it mainly discusses the harmful behavior,the harmful result,the causal relationship between the behavior and the result,and the additional conditions specific to the possession crime.Provisions such as "cannot explain the source or whereabouts" are substantive elements in the constitutive elements of a possession crime,which appear as objects to be proven in the procedural law,rather than establishing the inversion rule of the burden of proof on the burden of proof.In terms of the subject elements of the possession crime,the establishment of the unit's qualifications as the subject of the possession crime has a corresponding theoretical basis,which is also conducive to the reasonable control of the scope of conviction and the realization of a balance between crime and punishment,which has positive practical significance.At present,the legislation that a unit can constitute the subject of a possession crime has appeared in the criminal law of our country.For example,Article 260 has stipulated that a unit can commit the crime of possessing forged invoices.The current criminal legislation should be revised to give the unit the qualifications to be a criminal subject.Referring to the subjective elements of possession crimes,the standpoint of unity of subjective and objective should be maintained.The principle of strict liability has a specific historical background and applicable conditions.At present,our country does not achieve an objective basis for implementing strict liability in possession crimes.It is clear that subjective mentality of possession crimes should be limited to intention,meanwhile not necessary to penalize the behavior of negligent possession.In terms of subjective intention,there are two manifestations: direct intention and indirect intention.The distinct difference between them lies in their different psychological attitudes towards the occurrence of harmful results.However,there are exceptions.The crime of a huge amount of property with unknown sources can only be constituted directly and intentionally.At the cognitive level,the actor must know that the property or expenditure he owns obviously exceeds the reasonable income and that the property is not obtained through legal means;at the volition level,the actor is required to continue to possess these huge amounts of property.Knowing is an essential element of possession crime."Knowing is unnecessary" is not in line with my country's national conditions and cannot be used in possession crimes.In some possession crimes,the knowing stipulated in the law should be interpreted with caution.That is,in possession crimes that do not stipulate knowing,the perpetrator is also required to have subjective knowledge.There are two kinds of Knowing: the knowing in the concept of intentional crime in the general provisions of the criminal law and knowing in specific crimes in the sub-rules of criminal law(mostly knowing about the object).Knowing in the concept of intentional crime in the general provisions of the criminal law directly relates to the definition of crime,and has a guiding and limiting role for knowing in specific crimes in the criminal law.The traditional criminal law theory regards the harm to society as the knowing content in the concept of intentional crime in the general principles of the criminal law,and the theory of illegality knowing advocates replacing the social harm with illegality as the knowing factor in the investigation of intentional crime.The criminal law of our country,especially the possession criminal legislation,has entered an era of legal offenses.Criminal violations are separated from moral condemnation,and some crimes no longer have moral evaluation factors.In this context,it is of positive significance to promote the awareness of illegality.The "law" in the understanding of illegality should be understood as criminal legal norms,because criminal illegality is one of the basic characteristics of the concept of crime in our country,and criminal intention is the perpetrator's psychological reflection of the basic characteristics of the concept of crime.Recognizing that the content of knowing as criminal intention is logically coherent,and it helps to distinguish criminal intention from civil violation intention and administrative violation intention.It also contains positive value orientation of protection of civil rights and freedoms,restriction of state power especially the right of prosecution.There is a distinction between the factual level and the legal level in the knowing of possession crime under the illegal epistemology.The knowing content of the possession crime at the factual level,including the behavior of the possession and the status and result of the possession,the object of possession,and the amount of possessing objects,etc.;at the legal level,the content of knowing is the possibility of awareness of illegality.Only when the perpetrator does not have the possibility of knowing the illegality of his behavior,and the responsibility for this wrong understanding of the illegality cannot be attributed to the perpetrator,can he be exempted from criminal law.The criminal law never constrains persons to do things beyond their ability.However,every citizen has the obligation to study and abide by the law.Misunderstanding of illegality caused by objective reasons cannot provide a subjective basis for criminal law censure,and penalties cannot be imposed on this basis.Chapter 4 is "The Criminal Patterns of Possession Crimes",discussing the criminal patterns of possession.On the suspended state of possession crimes,it is clear that the scope of punishment for unfinished forms of possession crimes is limited to direct and intentional crimes.Negligence crime constitutes a crime only when it causes actual damage.The situation of suspended act before the harmful result appears does not constitute a crime,and there is no existence of stopping form.In an indirect intentional crime,the holder takes a laissez-faire attitude towards the result of the crime,indicating that the foreseeable harm result does not violate his psychology,on the basis of the principle of unity of subjective and objective,the behavior can only be manifested when the harm result of the laissezfaire occurs.Indirect intentional crimes exist only when people's indirect intentions can be perceived.If there is no harmful result,the existence of indirect intentions cannot be discovered and confirmed.Regarding the determination of the forms of possession crime cessation,according to the different levels of possessing theory,possessing can be divided into three levels: quasi-possessing,unstable possessing,and stable possessing.Based on this theoretical basis,the possession crime cessation pattern is constructed.Whether a stable possession is formed is an important criterion for distinguishing and judging the cessation pattern of possession crimes.In the judgment of stable possessing,it is necessary to adhere to the combination of the physical stable possessing judgment and the psychological stable possessing judgment.Before the stable possessing state is reached,there may be forms of suspension,attempt,preparation,etc.There is no form of criminal preparation in possession crimes.The reason is that the comprehensive punishment on prepared criminals is not universal.The possession crime itself is a product of legislative presumption.Objectively,it is extremely difficult to judge the prepared behavior of possessing,subjectively there is also the problem of not being able to verify the "preparatory behavior for the purpose of carrying out the possession".Therefore,the preparatory behavior of the possession does not meet the conditions for the establishment of a criminal preparation form.The danger of possession has been punished ahead,so preparatory behaviors should no longer be forced into the scope of criminal laws regulations.The determination of the attempted form of possession crime must focus on the constitutional elements of the crime,especially the core factors such as crime,behavior and social harm.According to the stable possessing standard,when the perpetrator has already embarked on the relevant behavior of possessing,before the stable possessing of the specific item is achieved,the unsuccessful due to reasons other than the actor's will are the attempted offenders of the possessing crimes.In the case of the misunderstanding of the object,the perpetrator has satisfied the core elements of the constitutive elements of the crime-guilt and behavior.The absence of specific results does not affect the determination of the constitution of the crime,this situation is usually named as an attempted possession crime that cannot be committed because of its criminal object.Possession crime has crime suspension form.The criterion for the completion of a possession crime is to achieve a stable possession of a specific object.Before the staple status formed,there are possibly attempted or suspended forms.Occurred at the stage between the start and the realization of stable possession,the perpetrator automatically stopping the crime,can constitute a suspension form of possession crime.In terms of the number of crimes of possession crime,possession crime belongs to substantive crimes,not statutory and sanctioned crimes,and the interceptive special legislative purpose and functional design make it impossible that use absorption theory and joint crimes theory to judge the number of crimes.The number of crimes of possessing several specific items at the same time should be judged according to the types of objects possessed;The fact of possessing the same specific items multiple times means multiple violations of obligations,and the violations of obligations are homogenous,so the number of crimes should be regarded as one crime,the number of times of possessions is considered as the sentencing circumstance;In the situation of possessing the same specific item but there is an interruption of possession,the possession before and after the interruption should still be regarded as a possessing behavior and only one crime is convicted;in the situation that some or all of the specific items in possession are used in other crimes,If the items possessed first,and then used to commit another crime,multiple crimes should be convicted.When the order of occurrence of possession crimes and other crimes cannot be identified,the possession behavior should be regarded as the part of other crimes based on the principle of benefiting the defendant.When part of the possession of different kinds of objects is used in other crimes,and the possession of other kind of objects has no relationship with other crimes,it shall be deemed to be a simultaneous possessing crime and other crimes,multiple crimes shall be punished.If the possession of some specific objects is verified to be the result of other crimes,it should be verified the part of the first criminal act,no longer recognized as a possession crime based on the principle of non-punishable afterwards.If other possessions are not the proceeds of other crimes or cannot be verified,they shall be deemed as possession crimes,and both will be punished.In judging the form of accomplices in possession crimes,three factors need to be focused on: 1)the actors who meet the legal requirements,2)the joint possessing intentions,and 3)the joint implementation of possessing behaviors.In the case of the transfer of possession by the legal holder,once the legal holder transfers the specific object legally held to a person who is not qualified to possess it,there is no doubt that the transferee possesses the illegal possession.But the original legal holders will also lose their legal qualifications due to illegal transfer of possessions.Currently,it still has legal control over the possessions,while the transferee has the factual control.The two constitute a joint possession relationship,and a joint crime of possession should be established.In the case of illegally renting or lending firearms,because the criminal law provides for the crime of illegally lending firearms,the act of illegally lending firearms is no longer recognized as an accomplice in the crime of illegally possessing firearms.This is a special provision of the Criminal Law for the act of renting and lending guns,and it is not a denial of the above assertion.In the case where the employer and the employee possess due to the employment relationship,the employer knows the nature of the item held by the employee,or the employee's possessing of specific items is based on the employer's instruction,and the two constitute a joint crime of possessing crime;for other based on the possession of the employment relationship,in the case of unit crime provisions,it is more appropriate to convict and punish as unit crimes,and should not be determined as a crime of joint ownership by employers and employees.In the case of possession by a family member,if the known family member has not actively assisted,abetted,etc.,it is not appropriate to be treated as an accomplice.In the case of possessing objects in the same confined space,only if there is the possibility of exercising exclusive control over the space,or changing the possessing conditions to make it more conducive to the realization and maintenance of possessions,can it be recognized as joint possession crimes.The fact that a certain space is jointly occupied cannot be regarded as joint possession crimes.Chapter Five,whose title is "Review and Improvement of Legislation on Possession Crimes",reviews and analyzes the current legislative status of Possession Crimes,and proposes targeted countermeasures.The current possession crime legislation has prominent problems mainly as follows: First,the crimes are not standardized.For example,in many possession crimes,the possession is substituted or juxtaposed by lots of specific possessing behaviors,which leading to the misunderstanding and confusion of the same concept.Second,the accusation of possession crimes is unscientific,including duplication of behavioral legal evaluation factors in the accusations,redundant elements,and unreasonable contents of the accusations between different accusations.Third,the statutory penalty is not coordinated.The statutory penalty for some crimes fails to reflect the social harm made by the possession of different criminal objects is different,and the statutory penalty between some crimes and related...