How To Determine The Nature Of The Third Party's Action Of Taking Property From The Dead Yet Contributing Nothing To The Death

How to determine the nature of the action of those who don't contribute to the death but take the property from the dead? This is an issue worth studying in criminal law theory. However, the related theoretical research in depth concerning this issue is still in shortage in China. In recent years, with the increasing frequency of disputes over this kind of cases, the issue has attracted the criminal law circle's attention accordingly. Research on this, as a result, can help solve the difficult problems in judicial practice and further enrich and develop the criminal law theory system.This paper begins with a dispute, caused by the judgment of a case, which gives rise to the issue whether the dead can possess property. The paper elaborates on the definition and characteristics of possession in terms of Criminal Law, according to which, the property's subject can only be a natural person. Thus the point that the dead can possess property is negated. Then it proceeds to analyze the two controversial views of the crime of theft and misappropriation, establishing the standard to determine the nature of this kind of cases and makes suggestions for penal legislation. The paper generally falls into 5 parts:The first part mainly elaborates about the case. There is a traffic accident on the motorway and two people are killed. The traffic police have 5 parking workers clean up the accident scene after their examination of the spot. The 5 workers then take away the property from the bodies. Later, the court convicts the workers of theft. In the trial process, one issue arises, namely, how to determine the nature of the worker's action of taking away property from the dead? Then there comes the following parts.The second part deals with the focus of the case and what possession is in terms of criminal law. It first points out the key to this case is to determine the nature of the property that is found on the dead. Based on the Criminal Law theory about possession, the conclusion that only natural person can possess property is reached, which naturally negates the possibility for the dead to possess property. Finally, it moves back to analyze the nature of the property on the dead.The third part is an exhaustive interpretation of the two controversial judgments; crime of theft and crime of misappropriation. Considering the legal interest and the object of crime within the framework of crime of theft, the case can be seen as a crime of theft accordingly while the case can not be regarded as a crime of misappropriation in view of the object of crime and the accusatory system in terms of crime of misappropriation. Finally, the standard to determine the cases of this kind is established.The fourth part offers legislative suggestion on property that belongs to no one. It highlights the necessity of legislation on property that belongs to no one. Then, it designs the specific provisions by referring to the related existing laws of other countries and regions and detailed explanation is also provided.The last part is the theoretical conclusion. It is not until when there is the theoretical basis to account for the fact whether the dead could possess any property that the property right can be protected in both legislation and juridical practice as well. This paper aims to solve the difficult problems in the court's juridical practice so that the civil property right is protected. The paper is developed in this pattern: approaching a case, finding out a problem, looking into the problem, making suggestions to solve the problem. However, with the author's limited knowledge, some suggestions may sound not mature, yet the author still hopes which can contribute to improve and develop the Criminal Law in China.