The Studies Of The Possession Crime

It has been over two hundred years since the possession crime appearing in the criminal legislation, The legislation of the possession crime has specific social background and utilitarian pursuit, and its special illegitimacy and culpability cause wide public concern in the field of criminal law. Centering on the constitution of the possession crime, I attempt to probe into the legislative intention in the field of criminal policy, and put forward my opinion in the light of the problems in the legislation of the possession crime.This paper consists of four parts, including the introduction and four chapters.The introduction mainly introduces the controversial situation.Part One: The Summary of the Possession CrimeThis part includes three sections.Section One introduces the legislative background and development of the possession crime separately, and points that the possession crime is a remedy for the principle of "no punishment to the preparation" on condition that the judicial office cannot find out the source and intention of the possession crime, and then lists three basis of setting up the crime, namely from the social harmfulness, the unification of subjective and objective, and the social security.Section Two points that the criminal policy functions of the possession crime are safeguarding crime (safeguarding relevant crime and principal crime) and intercepting crime (intercepting the criminals from escaping the net of justice). Thereinto intercepting crime is the main function of the possession crime.Section Three points that the legislature should be careful to set up the possession crime connecting with its function of interception, and demonstrates the necessity from the objective of the criminal policy, the protection of legal interest and the safeguard of human rights, and the relationship of just and efficiency.Part Two: Studies of Constitutive Elements of the Possession CrimeThis part consists five sections, and the former four sections mainly analyze the constitutions of the possession crime—the main body, the object, the aspect of subjective and the aspect of objective.In the first section, the author considers that the unit should be listed as the main body of the possession crime except the natural person.Section Two lists four targets of the possession crime: control objects, drug, specific property(such as the illegal receipts of the civil servant),and some other special property(such as counterfeit money, obscene objects, instrument of crime).Section Three analyzes the legal nature and legal ascription of "possession".Section Four analyzes the cognition factor and the will factor of the possession: whether the possessor is cognizant of the specific objects and the illegality in the cognition factor; and the will factor mainly analyzes which one is the element of the possession crime, direct intention or indirect intention.Section Five analyzes the two legislative purpose of setting up the constitution of the possession crime. The first one is to be the independent constitution of the substantive preparatory crime characterized as possessing instrument of crime and dangerous weapons. The second one is to be the common constitution characterized that possessing specific objects probably conceals important criminal act, or the legislator merely sets up a few possession crime aimed at the civil servant with special legal obligation.Part Three: Legislative Defects and Legislative Perfection of the Possession CrimeCombining the foregoing analysis, the paper points that many distinct defects exist in our criminal legislation, such as omitting the subject of crime, designing crimes irregular, setting up legal penalty unreasonably, and omitting important crimes.