A Research On The Issue Concerning Determining The Nature Of The Behavior To Obtain Booty

In the crimes that actors carry out the invasion on property rights prescribed in the criminal laws in this country, no particular explanation has been made for the category of properties, and there is no unified cognition in both the theoretical circles and practical circles for that booty is recognized as general property or as special property as well as the behavior to carry out the invasion on booty should be recognized according to the invasion on general property or should be applicable to special provisions, and there are also few special discussions. Although the nature of booty is also a kind of property, after all booty is different from general property, then whether the behaviors to obtain booty carried out by actors constitute crime or not, why dose it constitute a crime? Through discussing the behaviors to obtain booty carried out by the third party, heroic person and victim and looking through the superficial meaning of legal provision, the substance prescribed by the law is pursued in the paper. Based on studying the theories for a long time and combining the experiences of judicial practice accumulated in the work, a comprehensive analysis for how to determine the nature of the behavior to obtain booty will be made by the author by using the method of value analysis.Firstly, the behavior to obtain booty is defined. Because before analyzing any kinds of behavior, first of all, the meaning of the behavior should be understood and the connotation and extension of the meaning of the behavior should be defined. The behavior object, behavior mode and the main body of the behavior are mainly defined in the paper. Firstly, the behavior object is booty. Booty is a kind of factual status and it has no differences from general property, however there are the properties of special legal status, that is, the booty is in the status of right recovery through criminal procedure or the gap of right status among the statuses established again by the rights through civil procedure. Secondly, the behavior mode is the behaviors carried out by the actors actively and on their own initiative which violate the criminal legal provisions and change the legal status of booty. Thirdly, the main body of the behavior can be divided into three kinds for different subjective consciousness, that is, the third parties who are for individual interests, the heroic persons who stand for justice and victims who are for safeguarding the legitimate interests of one's own. The main purpose to define the behavior to obtain booty is to make clear the discussion direction and the problems need to be discussed in the paper, it is also the premise and foundation to carry out discussion in the paper.Secondly, several theories and reasons for recognizing the behavior to obtain booty as crime and not as crime are discussed. As long as the behaviors carried out by the actors who are fully aware that it is booty and obtained through no matter what kinds of methods should be recognized as crime, it is almost commonly held in both theoretical circles and practical circles. However, there are great dispute when discussing why the behaviors of actors constitute crime. The theories that determine the behaviors to obtain booty constitute crime are separately the theory of violating proprietorship, the theory of violation and possession, the theory of violating legal interests and the theory of violating order. Although each theory has the theoretical foundation to determine that the behavior to obtain booty is a kind of criminal behavior, at the same time, there are defects on this aspect or that aspect. The reasons for determining that the behaviors to obtain booty don't constitute crime are because of the behaviors are carried out by different main bodies, so there are different reasons. The author considers that the reason for cognitional unification can't be achieved for determining the nature of the behavior to obtain booty is mainly because of the main bodies of evaluation have different identifications for the values implied in legal provisions. For instance, the theory of violating proprietorship and the theory of violating legal interests emphasize on protecting the freedom of victims, the theory of violation and possession and the theory of violating order emphasize on maintaining social order, while the theory of innocence emphasizes on considering the individual freedom and social justice. The discussions on the theories of determining the nature of the behavior to obtain booty and reasons are to introduce the current development situation of theory and the existing problems, at the same time, it also lays the foundation for researching on the value analysis in the paper.Thirdly, how should the nature of the behavior to obtain booty be determined from the view of value analysis? There are many kinds of values, however, now there are three fundamental values in law basically affirmed by theoretical circles and practical circles: freedom, order and justice. Other values reflected by law are basically descendent from the three core values, and all their shadows can be found from them. The behavior to obtain booty that is carried out by the third party, heroic person and victim is qualitatively analyzed from the view of three fundamental values in the paper. With the integration of the above analyses, the author draws following conclusions setting foot from the social circumstance at the present stage, no matter it is analyzed on the basis of whichever among the three of freedom, order and justice, it also can be concluded that the behavior to obtain booty carried out by the third party should be recognized as committing crime and be given relevant criminal liabilities. Although the behavior to obtain booty carried out by victim will be given relevant criminal liabilities to a certain degree under the condition of strictly acting in accordance with the law, the behavior also should be worthy of being affirmed and sympathized from the view of legal values and social moralities, the victim should not be given liabilities because of one's self-saving behavior to the limits of necessity. The behavior to obtain booty carried out by heroic person is comparatively complex, the behavior can't be simply determined to be legal or illegal, but it should be synthetically analyzed according to the concrete behavior carried out by heroic person and with the consideration of the local political, social factors as well as other aspects of factors, so that the legal nature of the behavior can be determined. If the government is a corrupt and incompetent one, the society is turbulent and unsafe, the behavior of heroic person should be worthy of being encouraged and praised.However, when the government is disinterested and effective, the society is safe and in order, heroic person should consciously withdraw the social stage of that time. Finally, through pointing against the analyses of how to determine the nature of the behavior to obtain booty, the author finds that the determination of the nature of the behavior to obtain booty will be drawn different conclusions by law because of the different main bodies of behavior and the different main bodies who give evaluations. This is because that people have different degrees of identification for the understanding of determining the law and the application of legal values. Different legal values have different statuses in law; they have different roles in law at the same time. The key to evaluate the law is which kind of the law has a leading position and plays the role of dominating the legal provision in connection with one legal provision. Although the status and role of legal values are determined in advance by legislator when making the law, and so, when legal provisions are applied to concrete social problems, different main bodies of evaluation still draw qualitative conclusions which are different with legislator's because of different views of value analyses.