The Jurisprudential Inquire Of "The Purpose Of Illegal Possession" In The Property Crimes

The theory of illegality is a difficult research field in the criminal system,and the subjective illegal elements are more complex problems in this field.Accordingly,the purpose of illegal possession is a special subjective illegal element in the property crime,which is worthy of in-depth study.Based on the research results of civil law countries(regions),the theoretical implication can also obtained from the perspective of comparative law returning to local research.In the domain,the Chinese Mainland and Chinese Taiwan have transplanted Japanese theory as a whole,and comprehend the meaning of this purpose by the intent of exclusion and the intent of utilization.Outside the territory,the German criminal law divides this element into purpose to gain ownership and purpose to enrich,the former roughly corresponds to the purpose of illegal acquisition of Japanese criminal law.However,the mechanistic doctrine can not solve the difficulties in the application of Chinese law.Based on the revelation of comparative law to return to the domestic law,it is more appropriate to understand this purpose with the content of “the intent of exclusion and the intent of unauthorized use”.For the former,this intention refers to the permanent exclude owner’s possession;for the latter,this intention is to use its property without the legal consent.In addition,the research on the purpose of illegal possession is not limited to its own content,but should be systematically thought and questioned from a macro perspective.First of all,in the criminal system,the purpose of illegal possession has the duality of subjective constitutive elements and subjective illegal elements.Secondly,in the criminal subjective elements,the purpose of illegal possession is a kind of element that transcends inner tendencies,which is different from criminal intention and other specific criminal purposes.Finally,in the theory of criminal purpose,the purpose of illegal possession is not only the purpose of non-statutory purpose crime,but also the purpose in the incompletely two-conduct crime.The study of the purpose of illegal possession is ultimately for the application of the criminal field.In the robbery crime,the establishment condition of aggravated robbery must have this purpose,and its position in fictitious robbery should be analyzed in detail.“Transferred robbery” and “gathering for beating” do not require this purpose,while“looting bearing lethal weapon” is necessary for this purpose.In the fraud crime,the intention of illegal acquisition and the intention of acquire ownership can not directly explain the intention of fraud crime,and the interpretation path of this purpose should choose both the German and Japanese theories.In the embezzlement crime,“unlawfully taking possession of the property” and this purpose are not same in legal dogmatic,but there is a “parallel relationship” between “refusing to surrender” and this purpose,which act different functions on the constitution of crime.