Qualitative Analysis On The Behavior Of Obtaining The Deceased Property

The act of obtaining the property from a dead refers to the perpetrator obtain the property with temporary intention after killing people intentionally or negligently, or another unrelated third person who don't contribute to the death take the property from the dead. This act has the following characteristics: first, the behavior subject has been in a special situation, is the perpetrator cause death intentionally or negligently before he obtain the property, or a third person who is no causal relationship with the victim's death; second, the subjective intention of the obtaining is the meaning of illegal possession of the dead's property or illegal possession of the ownership, rather than simply destroying; third, the object of the obtaining is the property of the dead.On the nature of obtaining the property from a dead, the theoretical circle and the judicial circle are controversial. There are three main views, such as theft,embezzlement and two points. Theft said that the act of obtaining the property from a dead constitutes a crime of theft. The specific reasons for supporting the theft include the possession of the dead, the possession of the living and the possession of the heir.Embezzlement considers the act of obtaining the property from a dead constitutes the crime of embezzlement. The scholars who support this view believe that the dead's property belongs to out of possession. But there is no out of possession from the embezzlement in our country, so they make the "forgotten" as the expansion of the interpretation and consider the act as embezzlement. Two points hold that the analysis should be based on the time and place of the obtaining the property from the dead. All these views have its rationality, but there are also shortcomings.Possession in criminal law refers to the actual control of the property. It includes not only the physical disposal within the scope of control, but also the social concept which can infer the state of person's controlling property. In criminal law, the actual control of the property can also be judged according to general concept of society and there are also some concepts of possession. Constructive possession refers to the possession which is based on the objective facts such as the characteristics of the thing itself, the existence of time and place, and the relationship between the dead and the heir, and is judged by whether a concrete property has been possessed according to the general concept. According to the general idea of the society and the concrete basic facts from the two aspects of the objective and subjective elements, theproperty of the dead can be presumed the possession of the heir from the two aspects of the objective and subjective elements. For the attribute of the dead's property, it is generally presumed that the property of the dead is occupied by the heir. But in the occasion of the alternating possession, because there is a third people who possess the dead's property, things will be different. At that case, the act of obtaining the property violates the third people's possession of the property. At the same time, there are exceptions, such as the act of obtaining the property violates the state's possession of the property. If the dead has no heir, it will be presumed that the property is possessed by the state. Therefore, the act of obtaining the property with one reason constitutes a crime of theft. But the act of obtaining the property with no reason constitutes a crime of theft under normal circumstances, and belongs to the embezzlement of out of possession in special circumstances. However, there is no such a regulation in China's criminal law. Therefore, the bug should be handled by the legislature.