Possession In Criminal Law

Property crime is the most common type in judicial practice. Except for embezzlement, other property crimes are all involving the constitution elements of transferring of possession. The concept of possession in criminal law originates from civil law, while differences have existed since the Roman law era. It is general believing that possession in criminal law is more realistic. When affirming a crime, judicial personnel sometimes involving in a confusion situation on this issue. To eliminate the foresaid confusion, based on the research on the development process and judicial cases, the paper will compare and analyze possession in criminal law as well as in civil law. Then the paper tries to provide a set of scientific and reasonable rules which can be applied for judicial practice. The paper is divided into four chapters as follows:The chapter one introduces the concept of possession, the nature of it and the possession system in continental law system countries. With comparing and analyzing the different meaning of possession in criminal law, the paper is mainly concerning on the property controlling relationship. The differences of possession between criminal law and civil law mainly exist in constituting elements, the nature of the possession and function of possession system. The existing differences do not mean violation of the law order, we shall insist on that the nature of possession in criminal law is objectivity.The chapter two introduces the development process of possession, from the nature of objectivity or the nature of subjectivity to both in equal value, which indicates the trends that possession in criminal law is absorbing elements from civil law. The paper holds criminal law shall insist on that the nature of possession is objectivity. The nature of objectivity is primarily reflects in possession subject, possession period, controlling methods and so on. Meanwhile, to deal with the issue regarding attribution of the possession between several subjects, the paper suggests possession in criminal law shall take rights and obligations as supplement. In case where several subjects are all controlling and dominating property, the ownership of property possession shall be in correct sequence in accordance with the rules below: in normal, the possession based on title shall prevail, the possession based on legal action in second tier and the possession based on factual action at last. In particular, where legal action constitutes custodial relationship, the two or more subjects collectively constitute possession over property, where the rules of common possession shall be applied.The chapter three shows the function of possession identification. The first function is to distinguish embezzlement from other property crimes. The paper conducts legal research on the possession issue of particular property, including deposit possession, sealed property, forgotten property and buried property. Then the paper discusses possession attribution in particular relationship, including subordinate relationship and relationship of equal. The second function is to be taken as standards of the accomplishment theories about the property crime. Then the paper is to verify the rules through judicial cases and confirm it is scientific and reasonable.