Study On Several Problems In Crime Of Unlawful Intrusion Into The Residence Of Another Person

This text that based on the comparison and reference analyze several difficult issues about the crime of unlawful intrusion into the residence of another person in our country. The crime of unlawful intrusion into the residence of another person means the behavior that influences other's well-balanced living and peaceful biding ,unlawfully barge in other's residence or refuse to go out of one's residence although one has been asked to. According to 245 article of criminal law, the one who commits this crime should be given fixed-term imprisonment or detention for few then three years, and the judicial personnel who abuses to use authority to commits this crime should be give a heavier punishment. We can easily know that the crime of unlawful intrusion into the residence of another person is misdemeanor from measuring penalty. In judicial practice, the behavior of unlawful intrusion into the residence of another person is often regarded as instruments of other behaviors that illegally intrude residences. And barristers and scholars ignore the research to this sin in some extent and are lack of the special and systemic researches about it. I think that we have many issues to discuss and investigate in our country about the crime of unlawful intrusion into the residence of another person. For example the issue about how to make sure the range of residence, how to analyze the kinds of the ways of behaviors, the issue of the punishment principle of concurrent crime and the way of investigate etc. This thesis is written on this foundation.First of all, define the scope of residence.This part discussed the compartmentalization of the residence scope in the two legal systems. Almost all the national penal codes have prescribed rules to protect civic residences, but there are too many attitudes about the meaning of civic residences. With regard to the establishment method of residence scope in the offense of burglary under British and American methods of penal code statute and common law, referring to the establishment method of crime of intrusion into the residence under the method of legal system of mainland, integrating the regulations of"residence","household"in Chinese legislation, I conclude the definition of residence and the establishment method. The object of crime of crime of unlawful intrusion into the residence of another person should be a residence or part of it that is stable, used for living and relatively separated from the external world. The definition of residence scope should consider the following conditions together. Firstly, residence should be a place for daily-life living. Secondly, it is separated from the external world. Thirdly, it should maintain relative stability. Fourthly, it should be somebody's residence or a part of it should belong to somebody's residence.Secondly, analyze the behaviors of crime of unlawful intrusion into the residence of another person.The action of illegal residence- invading is the objective behavior of crime of unlawful intrusion into the residence of another person. There are two kinds of this action, one is illegally intruding in the residence, the other is getting in without the opposition of the owner but refusing to back out when asked by the host.To begin with, concerning the definitions of"enter"in the crimes about residence of all countries'lawmaking as well as the judicial practices of Chinese laws, it's concluded that partly enter, part of the body or tools invade in the residence should be adopted as the objectively essentials of the crime, when judging whether an"enter"action (including tool-using or entering of the guiltless agent).Moreover, there is the analysis of the justice of crime of unlawful intrusion into the residence of another person with the constitution item of"refuse to withdraw". It can be seen that this action is one of the impure criminal omission referring to the theories of criminal omission. Based on that, there are two components of the behavior of"refuse to withdraw", first, entering with approval or acquiescence of the owner; second, request to withdraw from the owner and third, the offender refusing to withdraw.Thirdly, determine the crime of unlawful intrusion into the residence of another person.As common as the concurrency of crime of unlawful intrusion into the residence of another person and other intrusion crime, it is necessary to make clear statement of the components of crime of unlawful intrusion into the residence of another person, so as to effectively separate it from other intrusion crime.First, we list five situations that most commonly appear in judicatory practices, emphasizing the significance of relationship between the invader and the resident as well as the definition of"gravity of circumstances". Then the opinion that the steal in the house but not reach full amount of law should be went behind criminal liability as crime of unlawful intrusion into the residence of another person is refuted.Second, the concurrency of crime of unlawful intrusion into the residence of another person and other intrusion crimes in our country is discussed. I think that it should be treated under the punishment principle of implicated offender, which means giving a heavier punishment.Finally, it discusses the state of accomplished offense of the crime of unlawful intrusion into the residence of another person. I think that this crime belongs to offense of act, the crime that noted by the accomplishment of stated criminal actions as the symbol of accomplished offense. The action is done when the behaviors reach certain extent.At last, the investigation way of crime of unlawful intrusion into the residence of another personAccording to the criminal procedure law of china, the way of the investigation of crime of unlawful intrusion into the residence of another person is"a kind of light penal case that people's prosecutor's office doesn't sue and the victim holds evidence". But after analyzing the lawmaking of foreign countries, the judicial state in China along with the legislative value and intent of acceptance at complaint, regarding the notion of people's culture, criminal policy, violation to individual justice, the extent of social harm and the adduce evidence ability of the victim, I think this crime should be ranged in acceptance at complaint only.