Boundary Between Exercising Of Right And Property Crime

“ No relief, no right.”It has become the universally recognized principle of law. Relief consists of public relief and private relief, litigation and arbitration are public relief. Faced with the reality of the complex situation of society, public relief is often difficult to achieve the legitimate rights of the individual timely and effectively. When right is violated, based on efficiency and cost considerations, someone tends to give up the right to seek public relief, but goes to safeguard the legitimate right through his own private relief. Exercising of rights is one kind of private relief, broadly speaking, it has two types of exercising of rights: one is that the perpetrator has the right to acquire property or property interest from the other people. For example, if the debt is over the date, and the debtor doesn’t have any reason to defend, the creditor takes some ways which like the means of property crime such as fraud or extortion to accomplish his right. The another type of exercising of right is that the perpetrator has a right to require counterpart to return property that has been possessed by counterpart. For example, the owner doesn’t choose civil proceedings, but gets back his belongings from the thief directly, including the use of violence, threats and secret steal. Whether this exercising of right constitute related property crime? It’s good to answer this question by changing a cognition, which urges us to redefine the category of exercising of right from “existence ”to “ as is ”.In addition to the introduction and conclusion of this paper, it includes four parts:The first chapter defines the meaning of exercising of right, there are three different types of exercising of right, they are broad, narrow and most narrow exercising of right. In this paper, it is the most narrow exercising of right, which refers to a conduct that the perpetrator takes measures that are in accordance with the elements of property crime on the appearance when his right is violated. It has two types: exercising of ownership and exercising of creditor. Concerning the relationship between exercising of right and property crime in view of jurisprudence and theory, there are two opposite attitudes: guilty and not guilty. However, exercising of right is not absolute establishment of property crime. Therefore, it is necessary to draw a boundary between them.The second chapter tells the attitude of exercising of right from Japanese criminal law practice and theory. The earliest cases about the boundary between exercising of right and property crime would date back to Meiji 30 years, and the positions of the cases didn’t maintain consistency, various opinions appeared:absolute guilty, absolute innocence, relative guilty. The cases gathered before the second World War, mainstream view approved that exercising of right was innocent, explaining it through the lack of purpose of illegal possession and damage of legal interest. There were two kinds of criminal theory about exercising of right, they’re distinguish theory and property crime theory. Distinguish theory thought the means of fraud, larceny, extortion and robbery didn’t constitute property crimes. However, the means of extortion and robbery to achieve right might constitute the crime of coercion. Property crime theory thought the legal interest was possession, so it advocated that exercising of right constituted property crimes.The third chapter discusses the the attitude of exercising of right from Chinese criminal law practice and theory. The cited four cases show different opinions from Japanese cases. Concerning the time when the cases were made, the court’s position became more formalized than before, while the early opinion that agreed with innocence for lacking of purpose of illegal possession or damage of legal interest became a minority viewpoint. Chinese criminal theory also has different views on this behavior. Professor Chen Xingliang and Professor Liu Mingxiang hold innocence opinion. Professor Chen Xingliang thinks we can consider whether the perpetrator has “ good cause ” or “ no reason ” to sustain the innocence opinion. Professor Liu Mingxiang points out that exercising of right has no damage of legal interest. However, Professor Zhang Mingkai emphasizes we can’t absolutely think exercising of right does’ t constitute property crime. If the right is doubtful, or ultra vires exercise, it’s possible to constitute property crime. Professor Tong Weihua puts social consideration as a standard, if exercising of right extremely escape off social consideration, it will constitute property crime.The fourth chapter firstly questions two paths which Japanese and Chinese criminal law seek for innocence. Questioning purpose of illegal possession, there is a new understanding of standardized meaning of illegal, possession and purpose. It corrects a conclusion(the perpetrator who uses improper means to achieve right lacks purpose of illegal possession)that people judge it just by experience for a long time. In fact, standardized speaking, the perpetrator has purpose of illegal possession. Questioning legal interest of property crime, the original intention is to avoid premature value judgment. The right theory and the middle theory both make the value widely known only sourceful possession deserves criminal law’s protection. In contrast, there are at least two advantages to advocate pure possession theory: First, affirming possession itself as legal interest avoids single value, that makes right theory dominate voice. Second, concerning substantive illegality, may “soften” Jus Cogen nature of criminal law to a certain extent. At last, the paper describes the understanding of the standard of boundary between exercising of right and property crime. The dimension of legal relationship and the dimension of methods behavior are two opposite dimensions to distinguish between exercising of right and property crime, they determine the substantive illegality of exercising of right together. The dimension of legal relationship consists of three parts:eligible subject, appropriate object and legitimate foundation of right. The dimension of methods behavior consists of two parts:correct understanding and inconsiderable means. The standard is based on the foundations of jurisprudence and criminal law. According to the standard, in the case of exercising of ownership, located by checking whether there is right of defense or not, if there is right of defense, then it establishes property crime; if there isn’t right of defense, then it doesn’t establish property crime. In the case of exercising of debt, we locate the boundary by comparing the size between amount of the claim and the amount requested. If amount of the claim is far less than the amount requested, then exercising of right establishes property crime; if amount of the claim is equal to the amount requested, then exercising of right doesn’t establish property crime; if amount of the claim is greater than the amount requested, then exercising of right doesn’t establish property crime.