Introspection On The Complaint Ways In Crime Of Encroachment

In the ancient legislation of our country, it had a long history to regard the encroachment action as a crime to punish, but this crime was not embodied in the criminal legislation after new China was founded until the criminal law was revised in 1997. The penal code in 1979 didn't make stipulations on the crime of encroachment because of the planned economy of that time, when there were seldom property relations such as custodian service, entrust, and mortgage between natural person and natural person, natural person and units, so it was rare of the separating phenomenon between the ownership and legal right of possession, which made the existence of encroachment action compressed in a tiny space, let alone the regulation on crime of encroachment accordingly. However, along with the promotion of the reform and opening-up and the rapid development of the commodity economy and market economy, the existing and turning forms of property are getting more and more complicated and diversified, with one manifestation that the ownership and legal right of possession are often in separated state, and the more active the commodity economy is, the more often they separate between each other, the more frequently the encroachment action will happen. As the physical quality of national life is unceasingly rich, the awareness to protect rights is getting much stronger, and people need the criminal law to provide a more direct and effective protection for their property more urgently; at the same time, it is more necessary for the crime of encroachment to exist as a single crime in order to maintain the stabilization of the economic order, ensure the ordered and honest operation of property relation, and give a sufficient and comprehensive protection for the public and private property right. As a new crime, the research on crime of encroachment in our country is very weak with a lot of deficiencies, which need to think about further. For that reason, this paper makes pointed references to the complaint ways of this crime, proposes some suggestions on improving the legislation aiming at the deficiencies and the top issues in judicial practice by learning from the legislation of crime of encroachment at abroad. This thesis is divided into three sections: preface, text and conclusion, among which the text is divided into three parts.Part-1 is an introduction about acceptance at complaint only in crime of encroachment. This part is divided into two issues. The first issue is to introduce briefly the concept of acceptance at complaint only, and point out several characteristics of it: Firstly, compared with other crimes, the crime of acceptance at complaint only causes a less social harm. Secondly, the crime of acceptance at complaint only often happens between relatives and friends who have certain social relations. Thirdly, the crime of acceptance at complaint only is propitious to realize the rational distribution of judicial resources. Fourthly, the crime of acceptance at complaint only exerts certain pressure to the tortfeasor. Analyzing out the legal nature of acceptance at complaint only through its characteristics, the writer believes that, according to the regulations in Article 15 of Criminal Law of this country, the legal nature of the acceptance at complaint only shall include prosection condition and theory of criminal responsibility perishing. The second issue is the law-making stipulations and the reasons on acceptance at complaint only in crime of encroachment. Encroachment action mainly refers to the violation of the property right of specific persons, and it will cause a less social harm compared with those crimes in connection with nonspecific property right such as larceny and crime of fraud; in addition, for the victim, the tortfeasor is relatively definite in a general way, with no need of the intervention of public security organ and procuratorial organ. Therefore, we bring the crime of encroachment into the crime of acceptance at complaint only. However, the regulations in the criminal law on crime of encroachment are too simple and brief, and it causes lots of inextricable problems in jucicial practice to take the crime of encroachment as a genuine crime of acceptance at complaint only. The regulations on the crime of encroachment in the enactment of criminal law of other countries are scientific from the structure to technical words, clear and rigorous, and the jucicial practice is easy to operate, with a clear division of different crimes of encroachment according to a certain criterion, which can reflect the characteristics of different encroachment actions, and then formulate the punishment to different extent.Part-2 is a content analysis on acceptance at complaint only in crime of encroachment, among which the main part is to analyze the complaint subject, complaint object on acceptance at complaint only in crime of encroachment, also the question whether a public prosecution way exists in crime of encroachment. The writer believes that, the objects of crime of encroachment include public property, and the someone else in crime of encroachment not only includes individuals, but also legal person and other social organizations, which is in favor of protecting public property in this way. As a pure crime of acceptance at complaint only, when the encroachment object belongs to public property, the crime of encroachment is unable to relieve through the existing laws. Firstly, the victim is the nation, but there is no body to exercise the complaint right on behalf of the country; Secondly, when a crime of encroachment belongs to crime of acceptance at complaint only, the public security organ has no power to exercise the power of investigation with respect to the cases of this type, and as the exercising subject, the procuratorial organ can not prosecute a lawsuit without legal authorization. Who shall the victim of crime of encroachment complaint to? The writer believes that, under the current legislation conditions, the criminal responsibility of a tortfeasor can be investigated only when the victim perform complaint to people's court in crime of encroachment only. If the victim complaint to the public security organ, according to the regulations in Article 270 of Criminal Law, crime of encroachment is a kind of pure crime of acceptance at complaint only, a crime of encroachment usually cannot be putted on record by public security organ, in this case, it is incapable of starting the judicial practice to investigate the criminal responsibility of a tortfeasor, so the legitimate interest is unable to get legal protection. The criminal law in our country regulates the crime of encroachment as the acceptance at complaint only, belonging to cases of private prosecution. Therefore, there are dispute between criminal theoretic fields and judicial practicing departments on the question whether there is the public prosecution ways of crime of encroachment: there are some main points of view as followings, 1. There is no public prosecution way of crime of encroachment. 2. There is public prosecution way of crime of encroachment. The writer believes that, there is no public prosecution way of crime of encroachment in current laws. Because the people's procuratorate is not the complaint subject of crime of encroachment, for: Our criminal laws has regulated five crimes of acceptance at complaint only including the violence interference to the freedom of marriage, crime of insult, crime of defamation, crime of abuse and crime of encroachment. There are regulations in exceptional cases on the other four crimes of the acceptance at complaint only except the crime of encroachment, and there obviously are public prosecutions in the exceptional cases. Since it is public prosecution, the procuratorial organ is the complaint subject naturally, so the procuratorial organ is unquestionable to be the complaint subject of the violence interference to the freedom of marriage, crime of insult, crime of defamation, and crime of abuse. However, there are no exceptional regulations in the legislation of our country on the crime of encroachment as a crime of acceptance at complaint only. Some scholars take the content of Article 98 in the Criminal Law as the basis to support the people's procuratorate to be the complaint subject of crime of encroachment. The writer believes that if the content of Article 98 in the Criminal Law as the basis to support the people's procuratorate to be the complaint subject of crime of encroachment, there is no need of the exceptional legislation stipulations on those four crimes of acceptance at complaint only.Part-3 is about the defect and completion on acceptance at complaint only in crime of encroachment. The writer believes that, acceptance at complaint only in crime of encroachment is imperfect in its design, and there are deficiencies in jucicial practice as followings: 1. It is unfavorable to exercise the right of private procecution. 2. It goes against the protection for the national interest and public interest. 3. It is unsuitable for the reflection of legislative intent. 4. It is unsuitable for the administration over the cases about crime of encroachment. Against to the several defects on complaint ways in crime of encroachment, the author raises the suggestion for completion: 1. Reconstruct the crime system of crime of encroachment. 2. Add exceptions to the acceptance at complaint only. 3. Add the cohabitant to the person with complaint right. 4. Establish a national relief system for the cases of private prosecution. 5. Bring about criminal conciliation system.