The Study Of Illegal Possession In Criminal Law

Possession is not only a fundamental concept in civil law, it isalso a fundamental concept in criminal law, particularly in the categoryof property tort. In legal practice, we constantly come across tentativedifficult case regarding to “illegal possession”, therefore, researchon this concept should deserve a high attention from academics.By April2012, this paper searched in database of CNKI with the keyword“illegal possession”, and278papers on criminal law come out. Althoughthe number is not small, most of these papers are either studying“purposes of illegal possession”, or discussing a single crimeregarding illegal possession. It is not common to find article on how todefine and identify illegal possession in criminal law. After simplesorting of extant research literature, this paper finds that criminal lawtheory for now does not give a definite conception of illegal possession,and there is no further research on topics as the state and belonging ofpossession, as well as conditions of illegal possession, which gives riseto ambiguity in confirming illegal possession in practice. Therefore,this paper is trying to address this issue, and investigate what it shouldbe as illegal possession in criminal law.As possession theory in criminal law is built up on that of civil law,researchers in civil law have a thorough investigation of possession and its system. Thus in chapter one, this paper traces the birth anddevelopment of possession system in civil law, and argues that possessionin civil law is essentially not a right, but a fact.In the second chapter, this paper, by drawing upon comparativeanalytical methods, investigates the meaning of possession in Chinesecivil law, and makes a comparison between possession in civil law andcriminal law. As development of criminal law in China is heavilyinfluenced by foreign criminal law, by sorting and comparing possessiontheories among continental legal system, system of Britain, the US andFrance, as well as Chinese legal system, we can see that similar tocontinental legal system, possession in Chinese criminal law requires theessential control of the objects, with no necessity of physical contacts.It is confirmed as long as it could be considered as control accordingto general conventions, and subjectively, there should be implication ofcontrol generally and abstractly. Then this paper makes a comparison onpossession between civil law and criminal law from objective perspective,subjective perspective and possession objects, and finds that theconception of possession is very close between these two laws. Therefore,there should not be overemphasis on the differences between the two, incase there could be confusions of the concepts and contradictions on theapplication of law.Based on the clear defining of possession in criminal law, in chapterthree, this paper turns to illegal possession in criminal law, andinvestigates the elements of illegal possession from objective andsubjective aspects. That whether there is breaking of original possessionand setup new possession is a criterion in determining snatching crime,occupying crime and cassation crime, thus there should be definite andobjective elements, in other words, state of possession. Due to variousdifferences in categories, attributions and sizes of property, it is difficult to give a clear-cut criterion. This paper will divide allpossible cases into nine categories, albeit inexhaustive, but attemptingto cover as much as possible. The confirmation of illegal possessionrequires implication of illegal possession, but with no requirement ofpurposes of illegal possession. From the standpoint of the fact that theftdoes not require illegal possession purposes, this paper argues that theftis punishable, and should be considered as a crime.The ultimate purpose of theoretical analysis and arguments is to servepractice. Therefore, the last chapter, which is also the most importantpart, is focusing on analysis and identification of possession in practice.This paper selects and analyzes several kinds of unique illegal possessionwhich are even controversial, and makes some rough proposals, hoping tobe of any help both theoretically and practically.