The Study Of Possession Of The Mistaken Remittance

As known,the problem of possession of false remittance is a controversial issue in the field of criminal law.Possession is the basic problem of property crime.But what is possession in criminal law,and what is the difference between the possession with that in civil law? What is the relationship between possession and authority? The academic circles have been debating over the above issues.This paper intends to conclude the criminal nature of the behavior of withdrawing money of actor in the case of false remittance to provide some reference for judicial practice by carding the connotation of possession in criminal law,and analyzing the legal relationship between the depositor,the sender and the bank in the case of false remittance.In chapter one,the difference between the possession system of criminal law and civil law possession system is mainly introduced.By analyzing the similarities and differences of the possession between the Rome law and the Germanic law,the characteristics and construction of the two theories are introduced,thus,the conclusion that the possession stress facts is adopted in Chinese civil law on possession.The possession of criminal law is derived from the system of possession in civil law.The paper further cards out the concept and structure of possession of criminal law,and analyzes the connotation of possession.This paper holds that the possession in criminal law is essentially a kind of exclusive control.As the possession in criminal law pays more attention to the fact,however,the difference with civil possession system shall not be exaggerated,and objective evaluation on the possession system of criminal law shall be made under the perspective of monism of law and order.In chapter two,several elements of possession are introduced.In the first section,change of possession system is analyzed,it turns out that the concept of possession is gradually developed from a purely factual concept into a normative and factual concept.By presenting the understanding of the academic circles for possession,it is concluded that the possession is based on fact,and supplemented by normalization.In the second section,this paper analyzes the subject of possession,by analyzing the discipline system and internal logic of criminal law,the conclusion that legal person can also be the subject of possession is drawn.In the third section,this paper discusses the object of possession,and by comparing the opinion whether the property interest can be the object of possession.The concept of property in the fifth chapter of criminal law is analyzed,and the word "Belongings" used for traditional property crime is compared,as well as contacting the actual,the conclusion that the object of possession may be property interest is therefrom drawn.In the chapter three,the possession of bank deposits is introduced,by introducing the determination of the ownership of bank deposits in the academic circles and the legal precedent of Japan,the rationality of “Theory of possession of bank " and “Theory of possession of depositors” under the background of Japan is analyzed.In this paper,by defining the deposit possession in China,the nature of bank,the concept of possession and the difference of civil law between China and Japan are analyzed,therefore,the conclusion that the possession of a deposit belongs to the bank is drawn.In chapter four,attribution of false remittance and criminal law determination of error remittance behavior are introduced.In this chapter,the theory of development on wrong remittance reception behavior in criminal law of Germany and Japan is firstly introduced.Then,the paper puts forward its own views: bank enjoys the possession of money while the depositor has the legal withdrawal authority.There is no contradiction between the withdrawal authority and bank possession.In withdrawing money,this behavior does not break the bank's possession.Therefore,the act of withdrawing the wrong remittance can only constitute unjust enrichment.