Qualitative Research On The Behavior Of Illegally Retrieving One's Possessions Under Other Person's Having

With our society economic developing in the recent years,the separation of ownership and possession right of property is increasingly common.As a result,illegally retrieving one's possessions under other person's having happens occasionally.Taking a comprehensive view of relevant cases in recent years,referring to Criminal Trial Reference and Selected Cases of People's Court,we can see that the solutions are inconsistent when talking over the qualitative analysis about behaviors.Even if some cases are similar and the logic to solve is common,the divergences arise in the argument reasons.It can be seen that there are different treatment attitudes on whether this kind of behavior constitutes a property crime in the judicial practice.And the different treatment attitudes also reflect the following questions: Firstly,it is controversial to decide the object of property crime.Either ownership or possession right has the priority,different views emerged.Secondly,if the object of property crime contains possession right,whether the Article 91,paragraph 2,of the Criminal Law can be the argument basis for property crime protecting possession right.Thirdly,whether the possessions under other person's having can be the target of owner's property crime.And lastly,how to account the detinue intent of the behaviour needs answered.Specifically,about the question of property crime's object,the Article 91,paragraph 2,of the Criminal Law in our country truly reflects the protection forpossession rights,but it can't negate the Theory of Ownership enough.For the protection of some possession rights,the discussion should be based on the protection of one's ownership.Generally speaking,the possessions under other person's having can not be the target of owner's property crime.On the question of the characterization of the behaviors,we should adhere to the principle of unity of subject and object,and detinue intent and its engendering time makes direct effect on qualitative analysis about behaviors,so we should comprehensively inspect criminal's subjective aspects and objective aspects,distinguishing specific situations.As a whole,clarifying the basic position of the question on what is the object of property crime and whether the possessions under other person's having can be the target of owner's property crime makes great significance for the settlement of illegally retrieving one's possessions under the other person's having.In addition to the introduction,this article divided into the following five chapters:The first chapter sorts out some typical cases in our judicial practice.By comparing the facts and opinions of kinds of cases,analyzing the solution in judicial practice,we can see that in the judicial practice,it is controversial on resolution.And the standard for victims' actual lose is unreasonable.It emerges following controversies for the problems of property crimes' objects,whether one's possession can be the target of owner's property crime,and how to account the detinue intent of the behaviour.And the following parts will also be discussed on above three inspects successively.The second chapter comments on and analyzes kinds of theories of property crime's object.In the traditional theory of our country's criminal law,about the object theory of property crime,mainly includes ownership theory,possession theory and intermediate theory,with the ownership theory as the general theory.Ownership theory has met predicaments both in the theory and in the practice,especially difficult to solve the problem of the behavior for illegally retrieving one's possessions under other person's having.While the possession theory has no legal basis in our country,it may excessively expand the protection range of property crime.It is not reasonable tosimply copy the possession theory to our country.And the intermediate theory also has many difficulties to explain the characteristic of the behavior for illegally retrieving one's possessions under the other person's having.On the problem of property crime's object,the article views that explanation for the ownership and the ownership theory should not be too narrow,discussing on the special protection for some kinds of possession situation should still based on the center of ownership protection.The third chapter talks over the topic on whether one's possessions under other person's having can be the target of owner's property crime.The article views that no matter one's possession is under the control of public authority or the three-party based on contractual relationship,the Article 91,paragraph 2,of the Criminal Law can not be the argument basis for property crime protecting possession right,one's possessions under other person ' s having also can not be the target of owner 's property crime.The forth chapter analyzes the problem on how to account the detinue intent of the behaviour.It is the mainly standard for whether there is claimant during the accounting procedure in judicial practice.While claimant directly affects the compensatory damages what the occupant haven't warrant the property reasonably.For this logic,the detinue intent for claimant aims to the compensatory damages,instead of the owner's property,for this,whether there is detinue intent and its producing time should be distinguished.Based on all above problems got solved,the last chapter classifies different circumstances and puts forward countermeasures on the behavior for illegally retrieving one's possessions under other person's having.Qualitative research on the behavior needs comprehensive inspection with both subjective and objective aspects,and after discussing the object of property crime,the article advocates that,it can be solved with distinguishing specific situations.The occasions of self-help and the occasions of delivery with illegal reason should be discussed separately.On the occasion of illegal possession,if the one takes over the possession,even though with illegal method,when conforming to the condition of urgency and necessity,it can notconstitute property crime for the Criminal Law should keep its modesty.If the one grants for illegal reason,then takes them over,we can say that the property crime constitutes.As for the behavior of illegally retrieving one's possessions under other person's lawful having,comprehensive inspection is asked based on subsequent behaviors,subjective intent for the purpose of illegal possession,the time of the purpose occurs and so on.