| Possession crime is the behavior that the actor controls or controls specific items,violates the provisions of the criminal law,has serious social harm,and should be punished.The core concept of possession crime is possession,and the actual connotation of possession is "control and control".No behavior means no crime.The essence of behavior is the infringement or threat to legal interests.Behaviorism is the premise of the legitimacy of holding crime.Holding is a behavior rather than a state.State is an external manifestation of behavior.The emergence of a state is caused by behavior.State alone cannot cause the infringement or threat to legal interests.The behavior of possession is an act rather than an omission or the third behavior,which violates the prohibitive norms of the criminal law.There are many charges in possession crime,and it has the trend of continuous expansion.In legislation,the legitimacy of its legislation lies in its social harmfulness,and its essence is a potential threat to the actual infringement of legal interests.Possession crime is the embodiment of preventive crime in a risk society,and the choice of criminal policy has a guiding effect on its legislation.The legislative value of possession crime is reflected in two aspects: entity and procedure.Entity has the function of attacking crime groups,intercepting crimes,and weaving a dense criminal law network.Procedure can improve judicial efficiency and reduce the cost of prevention and control.There are also some legislative defects in the possession crime,such as the unclear description of charges and counts,the unclear connection of the legal system of the identification standard of the object of possession,and the unnecessary occurrence of the presumption of danger.These defects may lead to the mechanical application of the law by the judiciary,the difficulty of ordinary people to accurately predict the legal boundary of their own behavior,and thus the risk of punishment and innocence.In judicature,the identification of possession crime should objectively consider the major dangerous attribute behind it,and subjectively should adhere to the responsibility for crime,abandon strict responsibility.Strict responsibility has the color of penalty utilitarianism,and the pursuit of retribution based on non criminal responsibility lacks criminal justice.At the same time,in the form of crime,the subjective crime of possession crime can only be intentional.Possession crime itself has no actual harmful result of negligent crime,but a dangerous result.Possession based on negligence does not have the legitimacy of establishing a crime.With the increasing development of economy and society,a peaceful and harmonious society is the consistent demand of the public.Facing the trend of the continuous expansion of the legislation on possession crime,we should respond at the legislative and judicial levels.We should think rationally about its legislative expansion,adhere to the substantive judgment of the necessity of criminalization and the infringement of legal interests,and adhere to the balance between social protection and human rights protection.At the same time,in judicature,for some possession behaviors that are less likely to occur or are not dangerous,although they may conform to the identification of possession crimes,we should seek the possibility of committing crimes,let administrative punishment play its due role,and give play to the crime function of proviso clauses in criminal law. |
