Theory Of The Purpose Of Illegal Possession In Criminal Law

The connotation of the purpose of illegal possession refers to that the actor takes possession of other people's property with the intent of exclusion and uses it in accordance with the possible use of the property,and causes economic loss to others.The purpose of illegal possession is independent of criminal intent.Its identification can start with “the intent of exclusion” and “the intent of use”.If the actor takes possession of one-off items of another person,the actor shall be deemed to have "the intent of exclusion";as for normal property,if the actor takes possession of it for a long time,causing irreversible damage or lacking restitution,then it should also be determined that the actor has "the intent of exclusion"."The intent of use" includes both the physical application and the psychological satisfaction of the property.Regarding the connotation of the object of illegal possession,the paper believes that as long as the actor has caused economic losses to others,it satisfies the conditions for the object of illegal possession.The purpose of illegal possession mainly exists in traditional property crimes,financial frauds,and corruption and bribery crimes.The paper agrees with the "Necessary Theory" of illegal possession.It believes that "Necessary Theory" does not break the principle of statutory crimes.It can effectively presume the actor's objective behavior through criminal presumption and then judge the existence of illegal possession.The division of criminal law and judicial interpretation also provided legal support for the establishment of "Necessary Theory".In the constitution of a crime,the purpose of illegal possession is a subjective constituent element.It is a special purpose that is independent of criminal intent and does not appear in indirect intent.The purpose of illegal possession is different from criminal motivation.At the level of psychological activity,motivation is deeper than purpose.Situations where the actor's illegal possession is difficult to determine often occur in judicial practice because the purpose of illegal possession is a kind of inner thought of the actor which exists subjectively.It is necessary to carry out a criminal presumption on the objective behavior of the actor in special crimes on the basis of adhering to the principle of subject-object harmony and the principle of comprehensive consideration,so as to solve the difficulty of obtain evidence in practice.In the crime of fraud in fundraising,if the actor uses fraudulent companies to raise funds and results in lack of repayment ability because of disposal funds in breach of contract,it shall be determined that the actor has the purpose of illegal possession;In the crime of contract fraud,if the actor does not meet the qualifications of the subject,lacks of the ability to perform the contract at the time of signing the contract,lacks of performance of the contract,and does not take the responsibility of breach of contract initiatively,it shall be determined that the actor has the purpose of illegal possession;In the crime of loan fraud,if the actor provides false collaterals or collaterals without value,or gets loans by impersonating others,or lacks the ability to repay the loan,it shall be determined that the actor has the purpose of illegal possession.