Study On The Nature Of The Act Of Possessing Sealed Property Illegally

There are great controversies in criminal theory and practice circle about how to determine the nature of the action that the client occupies the sealed property illegally, and the focus of the controversies is the occupation and ownership of the sealed things. There are five parts of the thesis including the preface, which are as the followings:In preface, the writer has chosen three typical cases in the practice of judicature,and analysed the judgment of the above cases, which leads to the question that this thesis will talk about, that is how to determine the nature of occupying the sealed things illegally. At present, it involves three charges during the determination of this kind of cases, which are theft, embezzlement, and duty encroachment. And there are three key questions involved, which are the determination of the sealed things, occupation, and taking the advantage of the position of duty encroachment. The writer thinks that if we can make the three questions clear, we will get the right determination of the action of occupying the sealed things illegally.As the basis of the analyses, the first chapter has defined the meanings of the sealed things and the action of occupying the sealed things illegally at the beginning. After the comprehensive analyses of the present conceptions of the sealed things in theory, the writer thinks that the so-called sealed things are the whole properties packed particularly, and sealed by locks or strips of paper to segregate the outside. The action that occupying the sealed things illegally is defined as that the trustees occupy the sealed things they are asked to keep for others for the illegally sake, thereby the client's ownership is violated. The action is of specialization with objects and means. In addition, the action is classified into two kinds, one of which is occupying the whole sealed things illegally and another is occupying the contents of the sealed things illegally. The third section of this chapter introduces the controversy of the determination of occupying the sealed things illegally. There are five main kinds of opinions in theory on this point at present, which are as followings: the possession of trustee,the possession of client,the distinct possession,the amendment of the distinct possession,the size and feasibility of mobile.Through the above analyses of the opinions, we can see that there are different opinions in the ownership of the sealed things, because the scholars have different opinions in ownership in criminal law. So the writer discusses the ownership in criminal law in detail in the second chapter. At first, the writer outlines and evaluates the meaning of possession in criminal law of our country, thus gets the standard of judging ownership in criminal law, that is to say, the ownership in criminal law should be judged both by the meanings of ownership and the fact of ownership. Besides, the thesis has also analysised the difference between criminal law and civil law in ownership from the aspects of the object, subject, subject element and object element.According to the above discussion, the writer puts forward her own opinion on the determination of the nature of occupying the sealed things illegally. The writer thinks that the opinion of the distinct possession should be insisted when determining the ownership of the sealed things, that is to say, the whole sealed things belong to the trustee, while the contents belong to the trustor. So the action that the trustee occupies the contents of the sealed things is determined as the theft, and the trustee occupies the whole is determined as the embezzlement.In the summary, the writer puts forward her own explanation on the query about the point of the distinct possession in theory at present. This thesis holds the opinion that there are no unreasonable elements in the distinct possession. On one hand, it obeys the principle of a legally prescribed punishment for a specified crime strictly to judge as this. On the other hand, if the trustee occupies the whole sealed things, then opens it and takes the contents, the theft will be established.