On The Legislation Of The Crime Of Illegal Possession

After the constitution of the Penal Code of France in 1810, the crime of illegal possession has been taken into people's consideration because of its difference with traditional crimes. In order to inflict punishment on criminal and tighten the surveillance of the law, the crime of illegal possession was proposed. But at the same time, owing to its particularities and subjectivity, the crime of illegal possession is also full of disputation. With the help of the logical argumentation, the thesis at first gives a brief introduction of the history and background of the crime of illegal possession. After that, the author gives a detailed study of the position of the crime of illegal possession in China's jurisprudence. Then, beginning with the introduction of the problems existing in juridical practice, the thesis gave an all-sided analysis about the objectivity and subjectivity of the crime of illegal possession, in which the form of the crime, strict liability and onus probandi are also discussed. Last but not the least, under the analysis of the preceding chapters, the author put forward some suggestions on dealing with the crime of illegal possession.The thesis is mainly consisted of five chapters:The first chapter firstly gives a brief introduction of the history of the crime of illegal possession at home and abroad. Then the author summarizes the significance of the formulation of the crime of illegal possession and the problems existing in the legislation and juridical practice.In the Chapter two, the author discussed the different definitions of possession: the author considered the possession as more dynamic than static which is supported by jurists in American and France. Therefore, the possession is one of the special forms of conduct should fall under the category of conduct. As the topic full of disputations in jurisprudence, different jurists have the different views about it, such as feasance, non-feasance, and third model of conduct. The thesis criticized respectively the feasance and non-feasance, either of which could give a reasonable explanation of possession. Possession should be considered as the third model of conduct.The third chapter analysizes the subjectivity of the crime of illegal possession, which in fact is the limit on the rights of the government and individuals exerted by the penal law. With the characteristics of the age, the crime of illegal possession is utilitarian and could improve the efficiency of the justice, save the judicial resources and promote the speed of the lawsuit. At the basis of the analysis of strict liability, legislation and judicial practice of possession crime, the author suggests that strict liability can be used to compensate for the drawbacks and loopholes of possession crime in its practical application, which also can provide rational arguments for the possession crime.The Chapter four gave a discussion about some problems related to the crime of illegal possession. According to the penal law of China, only some charges of the crime should certify to its subjectivity while most of them has not been clearly defined in the penal law. But it is not rational to exclude the subjectivity out of the constitution of the crime and onus probandi. The judgment of the crime should also follow the conformity of subjectivity and objectivity. Besides, the author also introduced the strict liability, the form of the crime and so on. This thesis argues that under a relatively strict liability, the complaint authority only need to prove the objective facts, which also does not rule out the innocent defendant to defend subjectively.Because of its specificity and difficult to identify the subjective nature of crime, the possession crime should take into the object of criminal conduct. It also would be reasonable to introduce the relative placement of strict liability, whose application will be exercised at the basis of relatively strict liability of proof, into the area. In addition this chapter also demonstrates the shape of possession crime problems.In the Chapter five, the author gave some advices about the legislation and jurisprudence of China. The legislation about the crime of illegal possession is far from perfect and also the names of the charges also need be rectified. The differences between the crime of illegal possession and the relevant crimes are also more vague than clear. As for the juridical practice, the crime of illegal possession also is not considered as the charge which could prevent the appearance of the further crimes. In the end, the author put forward some suggestions on solving the problems in juridical practice in order to compensate for the innate defects of the penal law.