Research On The "Purpose Of Illegal Possession" Of Larceny

Whether the subjective constituent elements of larceny should include the "purpose of illegal possession",there are different views on criminal law theory and judicial practice at home and abroad.In the legislative example of not clearly stipulating the"purpose of illegal possession" as the constitutive element of larceny,there is a controversy about the necessity and non-necessity,and it is generally believed that the"purpose of illegal possession" includes "excluding meaning" and "using meaning".Whether the two must be complete,there are different views on the theory and practice of criminal law in Germany and Japan.China's criminal law basically inherits the view of them,and there is also a corresponding argument.This paper argues that the "purpose of illegal possession" should be the subjective element of the crime of theft.However,for the theoretical function and basic meaning of the "purpose of illegal possession",this paper is inconsistent with the general theory.This paper holds that the "exclusive meaning" of the "purpose of illegal possession" has the function of district larceny and non-larceny,but "using meaning" does not have the function of distinguishing larceny from intentional destruction of property and explaining the difference between the two legal penalties.Therefore,the "using meaning" should be excluded from the basic meaning of "purpose of illegal possession",and the connotation of "purpose of illegal possession" should be further standardized in view of the defect of "excluding meaning".On this basis,in order to solve the predicament of "purpose of illegal possession" of theft in judicial practice,this paper makes it clear that the method of criminal presumption should be taken as the way of judicial determination.And combining with specific cases,starting from the presumption of the "purpose of illegal possession" and the determination of the target of the "purpose of illegal possession",the basic meaning of the "purpose of illegal possession" in larceny is that the perpetrator intends to "infringe possession-establish possession" to occupy the ownership of other people's property.It has the corresponding distinguishing function and can solve the complex and difficult problems in the identification of larceny.