On The Identification Of Possession In Criminal Law

Identification of possession in criminal law is significant to the correctdistinction of property crime, particularly in theft and embezzlement. As thedomestic scholars in criminal law circle have great divergence on it, the authorboldly puts forward the three-in-one theoretical system of identification ofpossession on the summary of many cases: possession with people in the field,possession in private space and the possession of remnants.Chapter I is divided into two sections. In section I, it proposes to measure thepeople’s status of property by possession; and the key difference between theft andembezzlement is who holds the property、 whether the property has beendestructed in possession; then it demonstrates the huge academic difference of theidentification of possession by some typical cases. Section II briefly analyzes thecurrent status of the possession study home and abroad, and then comes to theconclusion that the identification standard of possession should be the factualdominance, while the domestic scholars usually identify the factual dominance byillusion, which is not induced into a general theory.Chapter II is divided into two sections to introduce the two basic types of possession:possession with people in the field, and possession in private space. Section I isabout the possession with people in the field. According to the level of close relation, itclarifies the possession with people in the field into two kinds: the instant and closepossession to the body, and the deferred possession. There are some cases toexplain the easily-misunderstood deferred possession. Section II is about thepossession in private space, which means the possession doesn’t need the owner to have thedominant will. It explains the concept of private space, and describes the house as a regularbut not the only private space.Chapter III is divided into two sections. In section I, it advocates the concept of remnantsand holds the idea that the remnants should still be vested by the owner. Then, it sums up itsfour characteristics: the owner intentionally left behind the remnant;the doer knows the ownerintentionally left the property;it is not a possession with people in the field or possession in private space; the owner doesn’t want to transfer the possession of hisproperty, Section II is about the significance about the remnant as a new concept in criminallaw to clarify the theft and the embezzlement.Chapter IV is divided into four sections. Section I is about the possession of the dead,proposing that as the possession’s subject should only be natural man, the dead can possess theproperty. Section II is about the ownership of bank deposits, proposing that the bank depositsbelong to the bank. Section III is about the sealed matter, proposing that the inside matterbelongs to the entrusted persons and the separate possession is unreasonable. Section IV isabout the possession of lost property in special places, insisting that the lost property shouldbe objectively interpreted and it should expand the interpretation of lost property. The keypoint to identify the possession of lost property in special places is to find out whether theplace is private and the owner’s will to dominate the property is clear.