Research On The Problem Of Possession In Criminal Law

Because of the tight net of justice, and facilitating the judicial authority to fix the evidence and to fight the tentacles of extension, and reducing the judicial cost and other considerations in the punishment of the crime in regulation of misconduct, the legislatures rely more on the legislative technique of the “possession”. Although the technology of “possession” is beneficial to the function of the public authority, there are lots of side effects, such as constructing easily but taking off difficultly, a presumption of guilt, and hitting too early is not conducive to the protection of human rights and so on.As for research on the crime of possession, we must firmly grasp the core proposition of the “possession”, and take it as a starting point. In order to know the true face of the possession, we must size this focus. Some people in theory hold that nature of possession is a self-evident proposition, and the legislation has also been clear. So it is worthless to study. But the fact is not true. In the theoretical circle of criminal law, we should maintain a calm and aloof attitude to the legislation, and note that the legal theory of legislation is not the servant. The meaning of law is not what we really want.By the means of the fresh and vivid material and informative language materials and so on, this article deeply studies the possession of the criminal law through the meaning, nature and the argument of nature of criminal law, as well as the equivalence of possession and acting.The first chapter focuses on the discussion of the meaning of possession and the nature of it in legislation, and returns to the research object of this article--possession. The first chapter is divided into “the concept of the criminal law” and “the nature of the criminal law”. First section cites the wording “possession” in fact of life--possession is the state of domination and control of the object in our daily life through informative foreign materials. The author definite the possession in criminal law and give a profound and unique elaboration to the characteristics of criminal law through the method of interpretation system. At last, the author analyzes the difference of possession between civil law and criminal law. In the second section, I first discuss the connotation, purpose and possible negative effects of the possession in legislative technology. Subsequently, through the penal code syllogistic reasoning of the provisions, I am perspective on the meaning of possession in criminal legislation and justice, and draw a view that possession is a behavior, but the nature of possession shouldn’t be still.The second chapter focuses on the analysis of the nature of possession. I make a systematic mining, carding and evaluation of the ideas of possession nature about continental law system, China, especially the Anglo-American Legal System. On the basis of criticism and reference, this article puts forward a new argument: possession is a kind of control and domination of the prohibited goods as or static, which clearly illustrates the nature of possession. Then possession is divided into two categories: the type of acting and statics. Static type possession is subdivided into pure static possession and proposed statics. In the end, a problem is presented: the existing behavior concept cannot contain static type, and flaws exist in the traditional concept of behavior. Therefore, it is necessary to reconstruct the traditional behavioral theory, put the static type into the new theory, and achieve self consistent theory. Then,we will eliminate the embarrassing situation, which makes the static type logically become the evaluation object of criminal law. In the third chapter, the author focuses on the justification of the static possession, namely, the theory of the equivalence between the static possession and acting. In the first section, the theory of several classical behaviors, which are popular nowadays, are tested by static possession. It is found that they are not in good condition to explain the static type of possession, and then a new viewpoint is put forward--interest behavior theory. The second section describes the relationship between act and omission, behavior and act, and holds that act is different from omission, upholding the narrow sense of behavior, behavior is act. This article deconstructs the traditional behavior theory and breaks the barriers of traditional behavior theory, audaciously proposes that the object of the evaluation of the criminal law in three points: act, omission and static possession. It is believed that the evaluation object of the criminal law shall regard act as a standard, and omission, static possession keep up with act, and it is all required to obtain the “legitimacy” and “qualification” by means of equivalence. Finally, the theoretical significance of the standard theory is analyzed. The third section discusses the equivalence relation between the static possession and the static property. Based on the bridge of equivalence theory, this section establishes the equivalence between the static possession and act, so as to justify the static type to become the object of the evaluation of the criminal law. The equivalence theory is demonstrated by the basis of equivalence, the reason of adequacy equivalence and the content of equivalence.