Holding Crimes

Currently, there is no common understanding approached to what constitutes possession and the crime of illegal possession. This thesis holds the opinion that possession should be an act rather than a state in criminal law. Possession, in criminal law, should be integral from subjective requirements and should never be negligent. It also holds the opinion that possession should not only be de facto masterdom and control of contraband, but also be masterdom and control of contraband in law. Thus the crimes of illegal possession refer to those seriously harmful activities in which actors violate laws and regulations, and intentionally master or control the contrand. There are also many opinions towards the characters of action of possession, among which the two major doctrines are "independence" and "attachment". The doctrine of "attachment" holds the opinion that the action of possession should be defined within feasance and nonfeasance. While the doctrine of "independence" holds that possession should be defined as a third model of conduct. This thesis agrees with the opinion of nonfeasance. In criminal law nonfeasance is based on the precondition that actor has obligation of certain feasance, the essential being he should have done but fails to do. The crime of illegal possession can only be constituted as long as the act of possessing the contraband is combined with violating the related laws and regulations. The act of possession can only reflect the criminality as connected with specific obligation.Social protection and human right protection have been commonly accepted by most countries as two major functions of criminal law. As a manifestation of fuzziness of constitute of crime, the illegal possession actually expresses its function of social protection. The prosecuting party bears the responsibility of proving the defendant's guilty, while the responsibility of the defendant is to prove the insufficiency of the certain elements that constitute the crime, thus the crime of illegal possession is in conformity with the principal of "No one shall be forced to prove himself guilty". The reasonable allocation of onus probandi has lowered the social cost of criminal litigation.The study to legislation of illegal possession is not long in China, and no systematic or deep study has been made, thus the legislation in this respect is not mature in our country. While UK, USA, other Anglo-American law system countries, France, Italy as well as other Continental law system countries all have deep research in this field. Their theories and practices should be helpful to us. Hence, the thesis presents the following suggestions:1. To add unit as the subject on crimes of illegal possession;2. To improve the concept on crime of illegal possession of false money;3. To improve the concept on crime of illegal possession and taking of drugs-making plant seeds and seedlings;4. To reasonably add new crimes of illegal possession of nuclear materials, illegal possession of rare wild animals, illegal possession of products of rare wildanimals, illegal possession of forged financial vouchers as well as bonds and securities, etc.Regarding to the judicial operation of the illegal possession, this thesis has analyzed the following:1. Regarding to the quantity of crimes, it holds the opinion that these crimes cannot be considered as the tool nor the consequence of the implicated offenses, i.e., if there is enough evidence to prove the act of illegal possession to enforce other crimes, or the illegal possession is just the result of the previous crimes, it can only constitute the preparatory state of intention of crimes- -one crime, or the non-punishable state of other crimes.2. The major difference between the illegal possession and crime of concealing the stolen goods and contrabands lies in different objectives and subjective requirements of the crime.3. To define the illegal possession of drugs, it holds if actor possesses small quantity of drugs only for his own consumption, it is not crime; while if the actor possesses large quantities of drugs beyond the law regulates, even for his own consumption only, it should constitute crime. The difference of illegal possession of drugs and crimes of transporting drugs should be studied according to specific conditions of each case, and we also need to make clear the sources and uses of those drugs.