Analysing Acts Of Illegally Taking Back One's Own Properties Possessed By Others According To Criminal Law

It has become more and more common that property ownership is distinguished from possession with the development of economy and changes to modes of production.Under this background,it has been increasingly more common that some people unlawfully take back their own properties possessed by others.In Chinese judicial practices,there is something in common for determining nature of these cases.For instance,purposes of illegal possession are judged based on if any claim is lodged,and property crime is identified by confirming if possessors have lost any real property.Besides,unlawful acts of taking one's properties back and subsequent claims are evaluated as a whole.However,the situation is different in judging cases about reasons,if possession is protective legal interest of property crime,if Clause 2 of Article 91 of the Criminal Law of People's Republic of China reveals that the special forms of possession are protected by it,and if one's own properties can become objects of property crime may be understood in different manners in each case.In practices,differences and contradictions in reasons of judgment are basic for investigating ownership holders' acts of unlawfully taking their own properties back.There are three major views about protective legal interest of property crime(including views about ownership,views about possession and neutral views)in the theoretical circle of China.All of these views have separate deficiencies.The protective legal interest of property crime against prohibited articles can be explained according to views about ownership,and the protective legal interest of property crime is over exaggerated by views about possession.Although the neutral views make up deficiencies of another two views,it is extremely difficult to identify amount of crime,which is a great weakness of views about possession and neutral views.Thus,the protective legal interest of property crime shall be ownership,followed by ownership-free possession.Clause 2 of Article 91 of Criminal Law of the People's Republic of China has been always a legal evidence for refuting views about ownership with views about possession,and the understanding of this provision is also a source of contradictions in judicial practices.In this paper,this clause is considered to be a historical product of Chinese public economic system and formulated to confirm that the criminal law takes priority to protect public properties,in order to ensure superiority of socialist public ownership over private properties.However,it is not standard,so it can be used as a standard guide for defining properties involved in property crimes.For one's own properties,no protective legal interest of property crime exists.Thus,one can't be objects of crime against his own properties even if public power is possessed in special occasions.In light of above views,it is considered in this paper that one who takes his own properties back in occasions of illegal possession is not convicted of property crime,because he doesn't infringe upon any legal interest.The payments for illegal reasons are divided into consignments for illegal reasons and payments for illegal reasons in a narrow sense.The ownership of the former isn't transferred,so the payer shall not be convicted of property crime for his acts of taking what he owns back illegally.However,the ownership of the latter has been transferred to the payer,so the payer shall be convicted of property crime for his acts of taking his own properties back.For lawful ownership,one's acts of taking his own properties back unlawfully won't constitute property crime.In this case,the infringements upon other legal interests shall be convicted of other crimes,and for other non-infringements upon legal interests of criminal law,adjustments may be made according to civil law and administrative law.To be sure,one who illegally takes his own properties back will be convicted of property crime if his claims or acts of accepting compensation infringe upon others' property ownerships for the purpose of unlawful possession.The acts of taking one's own properties back are identified as preparatory acts of frauds or not evaluated from the perspective of criminal law,dependent upon time of illegal possession.