The Legal Interest Of Property Crime

For a long time, when it comes to the issue of legal interest inflicted by property crime, there exsit disputes between the theory of right in essence and the theory of right of possession. Based on the two theories, a variety of compromise theories have come into being. For lack of in-depth discussion into this issue by China’s criminal law scholars and in view of the solid status of ownership theory as the popular theory, in practice there exist some unreasonable phenomena. Absence of uniform treatment in judicial practice concerning issues, including restoration of rights for the right person, the right person’s infringement on the possessor’s interest, a third party’s infringement on the possession of stolen goods and a third party’s infringement on the possession of contraband, etc., has seriously undermined the unity of legal order. Thus, it is necessary to conduct a more in-depth study into this issue.As the discussion of this issue has been lasted for many years among Japanese law scholars and has led to a relatively high degree of maturity, it will be conductive to the settlement of both theoretical and practical issues in China by referring to it. In Japan, main theories about protected legal interest of property crime legislation are right in essence, right of possession and compromise theory. Right in essence theory thinks that the protected legal interest of property crime refers to ownership and other origin rights (including limited property right and obligatory right, etc.); right of possession theory thinks that the protected legal interest of property crime refers to the factual status of possession itself; while the compromise theory is divided into a compromise theory based on right in essence and a compromise theory based on right of possession.The core for the opposition of right in essence and right of possession is whether protected legal interest of property crime must be interest of legitimate rights protected by the civil law. The right in essence theory adopts a positive attitude and the right of possession theory holds a contrary attitude, thinking that criminal law not only protect lawful possession but also illegal possession. Only on the level of illegality can the relationship between the perpetrator and the person in possession be taken into account to negate the offense.In terms of whether the criminal law should be subordinate to civil law to determine the relationship, the right in essence theory insists on dependency doctrine while the right of possession theory insists on independence doctrine. Dependency doctrine is more conducive to maintaining the unity of the legal order, in line with the modest and restrained principle, which is more reasonable. However, the dependency of criminal law has relative property. Criminal law shall protect the possession not reproached by legal order, which civil law has not given legal status.In addition, right of possession theory has transferred the issue of protected legal interest to the illegality level to consider, which is not rational, and can not be in harmony with the protected legal interest of other property crimes. It can not solve the issue of afterwards act of impunity. It is also inappropriate to treat the illegal interest as protected legal interest of property crime. Therefore, comparatively speaking, the right in essence theory has its certain rationality.The opinion approved in this paper is that the protected legal interests of property crime legislation are proprietary right and other rights in essence, as well as possession not reproached by legal order.