A Comparative Study On The Possession System In The View Of Civil Law And Criminal Law

Civil disputes are often accompanied by criminal offences in judicial practice,and the intersection of civil and criminal law has always been a difficult problem in judicial practice.Among them,property crime is the most.The research on property crime in criminal law originates from civil law to a great extent.The proportion of property crime in criminal crime is the highest,and the harm is serious.Possession is a power of ownership in civil law.The possession of movable property transferred according to delivery is a necessary condition for the change of real right of movable property.There are five provisions on possession in the property Law of the people's Republic of China,including direct possession.Right to possession,possession protection,possession return claim and possession reply claim,but Is to have no right to occupy,the concept of possession and other content has not been mentioned.The criminal law does not provide for possession,but possession is the legal interest of the criminal property crime protection,and the key to distinguish the crime of taking possession from the crime of embezzlement in the crime of property.The possession of the civil law and the criminal law has the commonness but also the individuality.The biggest difference between the two is the degree of conceptualization of possession.In addition to the introduction,this paper consists of four parts.The first part,the concept of possession and the comparison between civil law and criminal law.Possession is not stipulated in criminal law,but possession itself in civil law has different theories and controversies in concept,nature and constitutive elements.Through combing the theory of possession in civil law,we can better understand possession in criminal law.Because of the different nature of civil law and criminal law,although the possession of civil law and criminal law emphasize the de facto control of property.However,possession in criminal law and in civil law and possession in criminal law are different in meaning,object,objective aspect,subject and function of possession system.The second part,the concept of possession in civil law and criminal law.In the civil law,the obligee may take indirect control of the property by establishing the right of claim for transfer and return,but the criminal law mainly evaluates the violation of the property of others.The evaluation of the perpetrator only needs to violate the direct possession of others.Even though both civil law and criminal law have common possession and auxiliary classification of possession,different degrees of conceptualization lead to different recognition of possession.The third part,the difference between civil law and criminal law.There are different rules between civil law and criminal law for possession of money.In civil law,money is applicable to the rule of "possession is all",but the criminal law only recognizes the possession of money.In civil law,virtual property has the property attribute,so it can be established and possessed in criminal law because of the management of virtual property by means of network technology.There is a system of lost property in civil law and forgotten property in criminal law,but as far as the crime of embezzlement of forgotten property is concerned in criminal law,the lost property is forgotten property.The fourth part,the combination and division of the rules of possession judgment between civil law and criminal law.Both the civil law and the criminal law emphasize the fact control of the property,but there is not a unified substantive standard in the judgment of the possession of the civil law.The judgment of possession in the criminal law only gives the ownership of the possession under several circumstances.And does not involve the specific possession judgment standard.The judgment of possession in civil law and criminal law should be combined with the nature of property and the judgment of time and space.As far as the norm of possession is concerned,civil law can be combined with the judgment of legal relationship.The judgment of possession and social concept in criminal law only plays an auxiliary role when facts dominate and control is weak.Finally combined with specific cases in the civil law And how to judge possession in criminal law.