A Study On Mitigating The Criminalization Of Possession In Criminal Law

The criminalization of any harmful act requires the definition of boundaries to prevent excessive criminalization.As a type of crime that does not require actual results or even specific dangers,possessive crimes have many inherent flaws that break through the traditional criminal law theory,and their criminalization needs to be strictly limited.Therefore,the study of the limitation of "Possession" criminalization not only has very important theoretical value,but also has very significant practical value.In addition to the introduction and conclusion,this article is divided into four parts,about 35,000 words,the main contents are as follows:The first part,an overview of "Possession" criminalization.The nature of "Possession" is the focus of the academic debate for a long time.There are "states","as a saying","not doing",and "a third form of behavior." This paper sorts out the controversy of the nature of possession and argues that the nature of the behavior of "Possession" belongs to the crime and seeks the legitimacy of Possession criminalization.Secondly,this paper argues that “Possession” criminalization includes criminalization in the legislative process and in the judicial process.Through combing and evaluating the legislative process of China's possession-type crimes,this paper argues that China's current Possession crimes have a tendency to improperly expand,such as the crime of Possession forged invoices and the illegal possession of terrorism and extremist articles.This led to reflective thinking and questioning about the “Possession” of criminalization.The second part,"Possession" the criminalized reflective questioning.The criminalization of "Possession" can easily lead to improper violations of human rights.First of all,from the perspective of normative structure,its subjective aspect is intentional or negligent or strict liability is not clear.Whether the objective aspectrequires the perpetrator to explain the source and destination of specific articles is also lack of clarity.The legal provisions that constitute the vague elements cause the nationals to have no Predictability and law enforcement agencies' arbitrary and selective enforcement.Secondly,possessive crime is a kind of legislative presumptive norm.In judicial practice,the subjective intention of the perpetrator and the objective danger of the behavior are presumed through the domination and control of the actor and the specific article.It is presumed that there is a possibility of error..Finally,the establishment of possessive crime tends to maintain the social order,conflict with the function of criminal law human rights protection,and also deviate from the traditional criminal liability principle.Based on the analysis of this part,this paper argues that the “Possession” of criminalization is more due to the consideration of criminal policy,and its legitimacy is limited,which leads to the discussion of the theoretical basis of “Possession” criminalization restrictions.The third part limits the theoretical basis for “Possession” criminalization.This part mainly explains why it is necessary to restrict the "Possession" of criminalization.First of all,the mainstream view of the civil law system believes that the essence of crime is the violation of legal interests.Therefore,the specific items held by the perpetrators must be items that pose a major threat to the legal interests.The modest concept of criminal law requires criminal law as a last resort method to consider the degree of intervention in criminal law.According to the complementary nature of criminal law,if there are alternative measures to prevent illegal activities,it should not be criminalized.From the perspective of the concept of safeguarding human rights,the crime of possession is a strict criminal law network,and the construction of obstructive crimes that strengthen social protection.Its inclination to social protection will inevitably suppress human rights protection.Therefore,based on the balance between social protection functions and the protection of human rights,we should carefully establish Possession crimes and limit the injustice caused by the “Possession” of criminalization.The fourth part limits the specific path of “Possession” criminalization.It is divided into two major levels: legislation and judicature.The criminal legislationlevel should rationally delineate the criminal circle of possessive crimes.Cautiously set up Possession crimes from the necessity and necessity,and also impose reasonable restrictions on the allocation of penalties.The judicial level conducts a substantive interpretation of “Possession”,pleads guilty to possession that is not substantively illegal,and gives the defendant full rebuttal rights in judicial proceedings.