Research On The Issue Of Possession Of Bank Deposit In Crimes Against Property In Chinese Criminal Law

In reality, it is easy to find a case that an actor takes away the money someone has put in the actor’s bank account. Though the fact is clear, views varies with regard to the act of the actor. The key to solve this puzzling problem is to find out who has the possession of the bank deposit. The concept of possession is a civil law one, and the rules about the property in civil law has laid the foundation for the crimes against property in criminal law. Based on that, it can be assumed that if the civil law is on the first level in the entire legal system, criminal law is on the second level. Therefore, it is necessary to research on the civil law possession in the first place. Meanwhile, the issue of possession of bank deposit came from Japan originally, and some Chinese scholars have brought those foreign ideas in their research in order to solve similar problems in Chinese criminal law background.Concerning those issues mentioned above, a systematic research has been conducted in this paper about possession in both civil law and criminal law. Also, pertinent theories from Japan have been discussed and a conclusion on whether it is appropriate to draw on them has been made. At last, based on previous parts of this paper, two typical cases have been analyzed and suggestions are proposed accordingly.This paper consists of five parts, and contains three chapters except the preamble and the conclusion. The first chapter discusses the issue of possession in both civil law and criminal law. Criminal possession is an act that exert complete control over a thing. To have such possession, two elements are required, which is the act and the mind that dictates it. Meanwhile, some social practice or common sense related should be considered when deciding who has the possession of a thing. By contrast, because of the difference in purposes and functions of civil law and criminal law, one can criminally possess a thing which he cannot in civil law background. For instance, stolen goods can be criminally possessed. Besides that point discussed above, there is no other difference between civil possession and criminal possession.The second chapter introduces cases and theories from Japan and concludes whether it is proper to borrow Japanese experience in dealing with similar problems in China. In Japan, two cases there made possession an issue: one is that the village head deposited the money kept for others and later transferred; the other is that a depositor withdrew the money that a remitter accidentally remitted to his account. Some people say that it is the depositor who had the possession of the money, while other rebut and think it is the bank. Some Chinese scholars noticed these views from Japan and introduced them to China. Also, they pointed out that those ideas can be used directly to solve the domestic problems. However, this is a quick conclusion without much consideration, as there are many distinctions in Chinese and Japan criminal law and some scholars in Japan haven’t reach an agreement about some basic concepts by far. Considering that, we may be slow in borrowing foreign theories.The last chapter analyzes some cases mainly on the foundation laid by the previous parts of this paper. The legal relations in cases are analyzed in the first plae and the special rule regarding the possession of money is also discussed. Based on that, a detailed explanation of the cases is made accordingly.