On The Advocacy Of "No Purpose Of Illegal Possession" Of Larceny

The criminal law of our country does not specify the subjective purpose of property crime such as larceny,which leaves room for discussion on whether to demand the purpose of illegal possession and the content of the purpose of illegal possession.At present,there are two viewpoints in the field of criminal law:the viewpoint considered the purpose of illegal possession necessary,and the viewpoint considered the purpose of illegal possession unnecessary,among which the viewpoint considered the purpose of illegal possession necessary must be said to be the general theory of our country,which requires the purpose of excluding and using to be elements of larceny.However,injudicial practice,there is a situation in which judges insist that the purpose of illegal possession is necessary,but their conclusions accord with the point of unnecessary view.Moreover,in situations where is no stipulation in criminal law,even the use of system interpretation cannot be a strong proof that larceny requires the purpose of illegal possession,using the necessary statement may violate the principle of 'nullum crimen sine lege,nulla poena sine lege'.There is a problem with the viewpoint considered the excluding purpose necessary.Firstly,from this viewpoint,according to the general social notion that embezzlement in a situation where a person hasn't a legitimate right can not use constitutes larceny,but this criterion is vague and difficult to grasp.Moreover,as a subjective excess element,the excluding purpose corresponds to no objective facts,which causes it difficult to make judicial presumptions in practice,and makes it difficult to distinguish between punishable and undeserving punishable embezzlement;secondly,determining whether the crime is established by subjective intention may lead the perpetrator to use the intention of return as a justification for exoneration in practice,thus violating the principle of criminal equilibrium;Finally,according to the viewpoint considered the excluding purpose necessary,after stealing the motor vehicle,the negligence causes the vehicle to be lost or illegally occupied or abandoned after use,which does not constitute a crime or a crime of encroachment,which is contrary to china's judicial interpretation that emphasizes the objective damage of property.There is a problem with the viewpoint considered the using purpose necessary.Firstly,it makes the act of stealing out of the intention of destruction,but didn't destroy finally not guilty,because it cannot be regarded as the act of intentionally destroying property,it only constitutes a preparatory crime;secondly,the concept of concealment goes beyond the semantic connotation of the concept of damage and our country only punishes the concealment of specific objects,which leads to the act of stealing ordinary property for the purpose of concealment not punishable,it is obviously contrary to the expectation of the legal community.Finally,it is difficult to balance the relationship between the crime of larceny and the crime of intentionally destroying property by using the point of unnecessary view.There is some rationality in claiming the point of unnecessary view.First,the negative elements of excluding purpose coincide with the content of intent;second,the positive elements of excluding purpose is unnecessary,on the basis of the unique elements of crime quantity in our country,we can distinguish between general larceny and minor embezzlement by judging whether the degree of objective infringement of possession can be punished;third,referring to the legal history,judicial practice and quantitative provisions of criminal law,the viewpoint considered the using purpose unnecessary has its substantive basis;fourth,the point of unnecessary view will not narrow the scope of punishment of sabotage,hidden crimes,and can reasonably solve the relationship between the crime of private opening,concealing,destroying mail and larceny;Finally,the point of unnecessary view can reasonably explain the legal penalty of larceny is more serious than the crime of intentional destruction of property's.All of purpose,motive and the need of general prevention will influence people's judgment on the severity of the crime,so it is not sufficient to merely consider the using purpose as the element of responsibility to explain the difference between the two legal penalties;from the view of the consequence without value,the using purpose will not affect the illegality and liability of the crime,so it is only the circumstance of sentencing based on the special prevention purpose,and does not belong to the elements that can distinguish this crime from that crime.In view of this,this paper argues:firstly,the negative element of excluding purpose is the content of intent;secondly,the positive element of excluding purpose is unnecessary.As long as embezzlement is redefined as a continuing offence,which considers returning property objectively as the constituent element,and considers property interests as the object of infringement,furthermore regards the elements of crime quantity as the judgment standard of whether embezzlement can be punished.In addition,in keeping with the provisions of the Interpretation,undeserving punishable embezzlement should be recognized as an aggravating circumstance of sentencing of other crimes;finally,the using purpose should be regard as a circumstance of sentencing rather than as an element of liability.