The Research On The Actions Of Encroaching Property By Use

Traditional criminal law theory,divided property crimes into three types by actions of encroaching property: acquisition of property crime;destruction of property crime;misappropriating of property crime.The difference between acquisition of property crime and destruction of property crime is whether the actor had purpose of illegal possession intended to illegal possess others’ property.However,there is another sort of property violation act which without obligee’s permission obtain property by action of acquisition of property crime,then return the property after use.In traditional criminal law theory,this sort of actions is not to be deemed crime because the actor cannot be affirmed purpose of illegal possession.The author defined this sort of actions as “Actions of Encroaching property by Use”,action of “stealing by use” is typical encroaching property by use.This paper is divided into three parts.The first part introduced actions of encroaching property by use and the nature of it in Criminal law theory in German,Japanese and Chinese.The first section introduced actions of encroaching property by use,the scope of it and the nature of it.Actions of encroaching property by use mean encroaching property by the actor,who has intentions of use and expel the occupancy of obligee temporarily not permanently.In the context of traditional criminal law theory,this sort of actions was distinguished from acquisition of property crime by intentions.In acquisition of property crime,the actor intends to expel the occupancy of obligee permanently,in the actions of encroaching property by use,the actor intends to expel the occupancy of obligee temporarily.Most of acquisition of property crime have scopes for actions of encroaching property by use to establish.The second section introduced the nature of it in Criminal law theory in German,Japanese and Chinese.In German,theorists admit the existence of subjective element of violation generally,the Criminal Law ruled that acquisition of property crime was established,unless the actor intends to possess others’ property illegally.And,the purpose of illegal possession means that the actor occupied the property completely and permanently.Hence,the actions of encroaching property by use couldn’t be acquisition of property crime.In Japanese,the existence of subjective element of violation is doubtful,and theorists have different opinions of the purpose of illegal possession.Various standpoints,but quite a few theorists regard the actions of encroaching property by use as acquisition of property crime.In Chinese judicial practice,the opinions about the nature of actions of encroaching property by use are paradoxical,and inconsistent with the theory concerned.In theory,some theorists regard this sort of actions as acquisition of property crime,and some of them think the actions cannot be interpreted as crime,it should be resolved by legislating.In the second part,the author gives a new connotation of the purpose of illegal possession,by analyzing the legal interest of property crimes.In the first section,by presenting theories of the legal interest of property crimes,the author finds out the common factor of various standpoints,the value of property,and the author considered that the more profound legal interest of property crimes is the value of obligee’s property.In the second section,the article analyzed if the purpose of illegal possession is necessary,and gave a new connotation of the purpose of illegal possession,by analyzing the legal interest of property crimes.The purpose of illegal possession is necessary to acquisition of property crime as subjective element of violation.The author considers that the meaning of the purpose of illegal possession is to occupy the value of obligee’s property illegally.The intent to expel the occupancy of obligee means to expel obligee’s occupancy of the property’s value.It indicates to what degree actors violate legal interest by encroaching.The intentions of use mean that the actors considered property is value-able and intended to acquire.It could distinguish acquisition of property crime from destruction of property crime.In the third part,the author analyses the nature of the actions of encroaching property by use.The author considered that the actions of encroaching property by use were as same as acquisition of property crime and were also equipped with the purpose of illegal possession.In fact,the actions of encroaching property by use were a sort of acquisition of property crime,they possessed the same quality,but different quantity.Once the quantity of value acquired by the actions of encroaching property by use had met the criteria of crime,it should regarded as acquisition of property crime.