Holding Crimes

The crime of possession has been prescribed in the foreign criminal law many years ago. It is accepted that the pioneer legislation which used the word "possession" to prescribe a crime was Criminal Code of France in 1810, almost two hundred years ago. The legislation of this sort of crime is an inevitable choice to meet the requirements of defending society and the development of society as well, It has special social background and utilitarian aim. Although there had been a provision about crime of illegally holding a weapon in Lam Codes of the Tang Dynasty, the prescription of the crime of possession in criminal legislation of People's Republic of China is late. The crime of illegally hiding a firearm or ammunition prescribed in the 163rd item of criminal law of People's republic of China in 1979 is part of the crime of possession, but it didn't arouse people's attention to the crime of possession in academia because it didn't use the word "possession". It was the same instance that the crime of holding a huge amount of property with unidentified source prescribed in the llth item of Supplementary Stipulation on punishing the Crime of Embezzlement and the Crime of Bribery in 1988.lt was the legislation of the crime of illegally holding drugs in 1990 (the 3rd item in the Decision on Prohibition of Narcotics) that led to discusses and study the crime of possession in criminal academia. Because of the late start, studying about the crime of possession looks more superficial and the legislation presents a lagging complexion inevitably. These block the effective punishment and controlling to the crime of possession at a certain extent. So it is our obligation that we cannot shift that to do thorough study on the crime of possession and advance the perfection in legislation.This essay contains six parts, which are expounded as the following approximately 48 thousand words.The first part, briefly, introduces the general situation about the legislation of crime of possession in China and in countries or areas of Anglo-American law system and continental law system.The second part analyzes the meanings of possession. It is believed that possession is a sort of action rather than a state. The crime of possession is a kind of crime that is prescribed by criminal law and the foundation on which we can investigate into the criminal responsibility of them is action controlling or holding legal contraband purposely. Then it is concluded that there are 11 accusations about crime of possession in the current criminal law in China.What the essence of the behavior for a crime of possession is has been a controversial issue all along in the academic circles. There are several branches of theory about the essence, some people think it's an action, some people think it's an inaction, some people think it's an action in some crimes and inaction in another and some people think it's the third kind of behavior beyond action and inaction. The third part of the paper discusses emphatically allthese theories and then points out possession is an action because it violates the prohibitive norm and accords with the essential characters of action.It is generally accepted that the form of subjective fault of crime of possession can only be intention, while how to testify it in judicial practice is a more controversial issue. The fourth part of the essay proposes that besides a few particular crimes of possession with a clear and definite prescription as for the purpose of in legislation must be testified the intention, the most take the strict liability which also be called shifting the burden of proof to exempt the prosecutor's burden of proving the intention. Of course, this exemption of the prosecutor's burden of proving the intention in procedure of crime of possession doesn't mean that the intention isn't the constitutive requirements of this kind of crime in substance.The paper then demonstrates in the fifth part the classification and form of the crime of possession in order to help us understand and master the constitutive...