Key word:The criminal lawPossession; possession; possession of facts

　　Abstract: possession in Criminal Law refers to the de facto control and domination, its establishment must both objectively dominant state with the intention of possession of two. Since the law of Rome, there areCivil lawAnd the difference of possession in criminal law. Compared with possession in civil law, criminal law has objectively dominant form is more realistic, subjective intention of possession more standardized components, nature of possession is legal or not is not important, it and the two has the status and function of system in the legal system is closely related to the. Share ownership in some special cases, such as exists in the relation of possession, joint possession, and packaging material, the property, real property and forgetting the possession, should according to the specific facts to determine the dominant relationship.

Theft, robbery, robbery, fraud, blackmail and impose exactions on is the transfer of property ownership of crime, the crime of embezzlement is not to transfer possession crimes, in these direct the crime, are related to the concept of possession of. Therefore, it is necessary to possession of criminal law, and the relationship between the meaning of property in civil law, possession of the special circumstances of the possession of how to identify, research.

The concept of possession theory opposition 1. criminal law, criminal law meaning in the concept of possession of language, the criminal law is not the same, our country criminal law in Taiwan called "hold", the German criminal law and civil law in using Gewahrsam , (Besitz) phase difference, the Japanese criminal law although called "possession", but the doctrine of precedent often use the "hold" or "lead" and other words, the criminal law of our country most of the time called "possession", some scholars use "control". But in the configuration and construction of the possession system, the criminal law of continental law system is consistent, a considerable extent, therefore, does not preclude comparison and overall understanding of the concept of possession.

What is the possession in criminal law, criminal law of continental law system existence following several understanding: (1) (P755) (1) tube has said, regardless of others or their own thing, as long as their possession, that is. (2) fact and law control, except for the fact that occupies dominant, should also include the deposit receipt, warehouse receipts, bills of lading, registration and other legal means. (3) fact dominant said, said that only in fact can dominate the subject matter of the state is a possession, generally, the de facto control include the sale of gifts and other legal acts and the benefit of using such factual behaviors of two kinds of. But in the specific understanding of the facts on the control, and there are two different views: a view of nature and the fact and law governed that is, only by means of deposit receipt, warehouse receipts, bills of lading, register and other forms of law governed account for the fact that domination. The control law of control but was in fact only, but the person in possession of the property name, enjoy complete domination disposition, and in fact dominate any difference in legal effect, and civil law in legal dominating phase difference, should be interpreted as fact dominant. Another view is that the mere fact that dominate, control based on certificate, bill of lading, warehouse receipt, registration and other forms of law does not constitute a possession in criminal law, only punishment for others keep savings claims (such as passbook) only constitutes the crime of breach of trust and do not constitute embezzlement. (4) the punishment may state that, as long as the object is entitled to treat as their own property as the disposition status, constitute the possession in criminal law. (5) dominate theory, think the possession in criminal law, especially the dominant element exists, as long as the object command, constitute.

The above theories, tube has said not accurately show substantial possession in criminal law, and the scope is too broad, cannot explain the auxiliary possessor cannot become the possessor of the situation, the advocates understood. Sanctions may also failed to accurately define the scope of the possession in criminal law, such as civil law in the indirect possessor subject matter has enjoyed the disposition status, but the criminal laws of most countries and their exclusion from the possession in criminal law, it is not recoverable. Control that is too broad, failed to distinguish between legal control and in fact dominated the two and two ones, such as range, such as the only production in fact dominate, and relates to explain the problem, and section (3) said no, the advocates also. Have an important influence on the modern criminal law of many countries, mainly in the first (2) and the (3), and the (3) of second viewpoint, Russian influence in the academic circles, as said, has no significant in other countries. The said first kinds of viewpoints and article (2) said in the possession in criminal law should include the range difference, just have to dominate the situation to explain the differences between the two, so no substantial difference, become the Japan and Taiwan case and the general academic. However, in the embezzlement and theft from crime, has established range are different, theft and other crimes of seizing of possession as the object of crime, focuses on the seizure of property exclusive force, so seize possession is purely factual domination relationship; and the crime of embezzlement in possession not to row he in fact and to have some potential for abuse of power as the focus, so the content than possession in the crime of theft is more widely, including the law on control. (2) (P168)

In our country, the judicial practice to define possession is different, the crime of embezzlement in possession of possession and Law shall include the pure de facto possession, custody for others deposit certificates and other financial instruments are also on the possession of money, free to withdraw will constitute the crime of embezzlement, since there is no doubt. According to the Supreme People's court for a judicial interpretation about theft, theft of valuable payment certificate, negotiable securities, the valuable ticket amount, whether immediate cash, the amount of theft were calculated according to the face amount, and the amount of theft generally refers to public and private property behavior has been stealing the amount, the amount shall be accomplished. Therefore, can be understood as, behavior as long as people have deposit certificates and other valuable ticket, is believed to have control of money in fact, formed on the possession of money. Therefore, China's judicial practice that the larceny against possession, should also include the control of the law. However, the law governing strict interpretation should be, should be have exclusive dominance possibility, enjoy complete domination disposition as necessary, with civil legal relationship on the basis of domination to distinguish the.

2. foreign and Taiwan criminal law defines the concept of possession of continental law system in general think, established in fact the dominance relation, should be standardized, social observation, on the basis of social concept to judge. (3) ( P209) is objectively should live with everyday forms, according to the nature of the material, shape and the place, time to govern the state of no, the subjective is needed to judge has no control.

Taiwan scholars think, dominance relation in fact should include objective and subjective elements of the control. The dominant element of subjective subjective means the possession of possession or control means, which is in fact means control of property, has nothing to do with whether decided to dominate their civil legal effect mean ability and responsibility, so children and mental patients can become subject of possession. The subjective meaning of domination, nor the possessor has special meaning or continue to dominate consciousness as a prerequisite, sleeping people can still keep the possession, the same, because of traffic accident injury coma of the scattered on the ground but not the loss of possession of property. In the establishment of possession, not to share the special statement holds for as long as necessary, according to the specific circumstances can determine its existence can be. In this regard, Mr. Bayashi Yamada from the German doctrine and case, that can also be based on objective subjective dominant meaning exists, which has the right of people to a certain range, the disposal of all items within the scope of, in the absence of other people in a special relationship, we can infer that it has dominated the subjective factor. (4) ( P648) accordingly, input gate mail in the mail, regardless of whether the wrong delivery, the recipient is not in the home also can infer its dominant meaning existence, also, for embedded in the walls of gold bars, even the owner of the house know nothing, but also a subjective presumed.

The dominant element objective refers to an objective fact hold state, general requirements and with space and time is close to the contact, usually the connection degree of relaxation and physical shape, nature and the existing sites, time. Generally speaking, the object is small, placed place more openness, space and time requirements more closely linked. However, this in fact holds the domination of the state, is not in physical holding reality as necessary, instead of social identity of idea of control or dispose of possibility to foot. The person in possession of the house such as residential items, although not be holding or monitoring, also recognized the matter domination, eating utensils, food store owner to provide guests the hotel owners to provide eight passengers use bathrobe, car owners to park in the street car, maintain possession.

In Japan, the possession in Criminal Law refers to the property to dominate the meaning of the fact that domination. Just the fact that domination, control it is not only physical, tangible, elements of the property holding and monitor the reality not possession, possession of the existence or not should be based on the nature of the material, time, place and social habits and other factors, according to the society's general concept to judge. (5) ( P688) therefore force can not, even in a physical, tangible domination to occasions, can also be in accordance with the concept of social judgment has possession of, for example, the house could not find the goods, temporary refuge and placed on the roadside objects, still belong to the owner occupancy; on the other hand, even if have a physical, tangible domination has denied the fact of possession exist, such as warehouse and the conductor does not own the goods in the warehouse and delivery. As a subjective element occupies the dominant, it is necessary, but it is a de facto control means, not to the possessor has the behavior ability and the responsibility for the necessary. Different from the civil law has to have own means necessary, in order to dominate others were also constitutes the possession in criminal law. You don't need to control every concrete thing, but a general, general meaning, but only on the latent control means, such as sleep in man dominated the material can form the possession.

The German scholar Welzel thinks possession should include three elements: one is the reality of the elements, that is the fact that the innervation to the property; two is the social factor, that is the fact that the dominant norms, should be judged according to the principle of social life; the three is the spirit of the elements, namely the meaning of possession. In fact, the first two factors is to occupy the fact, after an element is the meaning of possession, no essential difference between it and Japan and Taiwan, the two factors of. (6) (P591)

The definition of 3. scholars in the mainland of China to the possession in criminal law and concept of China's criminal law should select the position in Chinese criminal law theory of this problem is less, generally tend to in the case according to the specific situation to determine the possession of the no, but there are a few scholars have discussed the concept of possession. As the scholar thinks, the legal sense of the occupation, must be the person in possession of the sustained and stable control of the property, the property in its sphere of influence, and not for the contact property. Possession as a state of facts, and do not necessarily produce different from the possession of possession. (7) ( P22) therefore whether or illegal reason control based on legitimate property, may constitute. The theory emphasizes that a share in the objective of the actual control of the property, and that this control is different from the pure physical contact, but must make the property in its sphere of influence, to enjoy the dominance of the necessary measures. In addition, some scholars of continental law theory of criminal law to define possession, from the subjective and objective two aspects to grasp the concept of possession: think subjectively, with general, abstract controlling consciousness to dominate the fact should be; objectively, possession refers to the fact that domination, which not only includes the physical dominate range inside, also includes the social concept can infer the domination of the state property. In other words, the fact that domination is not the reality has the necessary, according to the main body of property, property of power shape, properties, can be considered to possess the property of others, own also belong to the fact. (8) (P773)

Therefore, our country criminal law theory also requires possession should dominate, control in the matter has the actual and the control, not by the physical, physical contact is necessary to manage, but should be based on the nature of the material, shape, in time, place, and people to dispose of objects and social habits to determine. This is in fact lead to domination of the state of matter, the disciplinary status to foot. Of course, this is not necessarily the legal right to dispose of the dominant position, but in fact can control measures as necessary. Such as A will be a watch to keep B on B, no legal punishment status, but in fact lead to dominate the table, and third people in fact disposition status, that its possession of the table in the criminal law. Conversely, A in the restaurant, although in fact the contact tube collar tableware, but according to the social concept does not believe it has in fact disposal status on the meal, and then cannot say the tableware has within its sphere of influence, he also can't form the possession of tableware. Moreover, this dominance nor the continuous state is necessary, even with the domination of a control, also constitute possession.

So, whether the establishment of possession in criminal law is the meaning of possession? we think, only with the objective of dominance, without the intention of possession does not constitute. If no kanrei control means, the property only in the control range someone physical or ideas recognized, it is difficult to explain its possession of dominating fact. China's judicial practice actually took the claims, such as employees of the store to store goods stolen, usually does not constitute the crime of embezzlement and theft, is the exclusion of auxiliary possession of possession of. Obviously, the auxiliary reality dominates the property, in fact punishment status, its reason lies in not taking command and arrange the auxiliary usually listen to master, there is no independent possession.

Of course, the intention of possession is not required to be the specific meaning, also not to have their own meaning is necessary, but the general, abstract meaning, but the meaning not only have a clear dominant consciousness, and can also be potential, even dominant meaning of presumption.

The possession system established in two, criminal law and civil law in civil law and criminal law is 1. possession concept holds the distinction between the concept of the modern civil law countries, in the legal evolution is possession of Rome (possessio) the possession system and the Germanic law on ( Gewere) system interaction results. And in theThe history of legal systemOn the concept of possession, Rome law and the Germanic law has different origins and characteristics, there are huge differences: a state of fact possession of Rome law as management control of property, which is separate from the real control right, especially the possession itself acknowledges that its effect; the Germanic law is the combination of possession and the real right, the real right and the performance of the external facts control state. Therefore, possession of Rome action, only to the protection of possession, but do not involve real right, its function lies in the legal dominant status, in order to realize the maintenance of social order; otherwise, the Germanic law holds the procedure, needs not only for itself, but also need to solve the problem of the actual possession rights of ownership, possession is given exclusive credibility and for the real existence of recognition, so its role is to protect the safety of transactions, and thus guide gives birth to presumption of rights, rights transfer, acquisition in good faith, indirect share system. Plays in the modern civil law (Besitz) in basically is with the ownership (Eigentum) phase separation, in the form of inherited possession of Rome, namely "the matter in fact manage and control", in essence, and the concept of the Germanic law contains some factors of possession, not only can be transferred, but by another agent of exercise, also has the right to.

Possession in civil law system is the realistic situation of home maintenance, so have in fact dominance relationship must be acknowledged by society, recognized by the people, and thus become the relationship between possession and others. Usually, only someone with deterministic or sustained objective relationship for certain objects, in can exclude others in state, is that there are in fact before the force on the matter. (9) ( P928) this need in accordance with the social concept, consider the people and things in the space of continuous combined with time to. However, in order to meet the needs of the social reality, modern civil possession concept has been artificially through processing and preparation has been expanded and limit the concept of possession, with ideas, and incorporated into the legal reasons, relaxation associated time and space. (10) (P24) people and have no time and space relation, can think that the person has dominated the matter, such as a possession, indirect possession of the subject matter of possession, heir to has not yet in fact manage heritage possession; also has the time and the space relation, also but that does not constitute a share, such as the national law to exclude the auxiliary.

Establishment of possession, in addition to the fact that the pipe leading force, whether has the meaning of possession, possession or the mean content? theory and legislation of different countries have different. Theory are subjective, objective and pure objective said several opinions. Subjective say that establishment of possession should be both in fact lead to stress and intention of possession, but the intention of possession is what meaning, have advocated for all meaning, have advocated for the dominant meaning, also argued for their own meaning. Objective that possession of material fact pipe leading force, do not need special meaning, only a pipe leading meaning, but this is part of a pipe collar facts, rather than independent. Purely objective that possession of pure objective for the fact before, not to occupy the means necessary. (9) ( P931) legislation in 1804, the French civil code. All the people saying, in 1896 Japan civil code applied for his saying, the German civil code in section 854 , paragraph 1: "the matter has in fact control force, the material possession." Single meaning from the text, seems to think that the possession only requires a de facto possession of objects, and not to occupy the means necessary. This proposition but in only a few German scholar, cases and generally speaking, set up by management in fact has led to its body (Corpus) outside, still need to have means (Besitzwille) for cardiac hormone (aniomus). (10) (P19) China Taiwan civil law also take similar to germany.

From the above, the civil law and the possession in criminal law, it refers to the actual control of the person in possession of possession of property and domination, then two, then what is the difference?

First, from the possession of. In general, possession of criminal law is the general, the general meaning, it does not need to have a clear meaning content complete, need only potential, even the putative meaning can be established. As for the possession of people for their possession or ownership, possession, usufruct is the meaning of human based, or temporary tube some meanings, are in question, just enough to show that the person in possession of domination, control property to the situation. But civil possession meaning is controversial, the legislation of the countries selected position is different, but whether to all people, or for their own meaning, must have certain specific content. Although the theory of civil law recently also believe that the possession of civil law can not be specific to individual specific object, only possession with the general on the line, such as a pair of input in the doorway of his email mailbox, regardless of whether they know all constitute possession. But the general intention of possession, also requires a knowledge of the mail will (or may) exist, and on this basis to control and dominate the desire is necessary, otherwise will not constitute civil law. If the wrong neighborhood in the mailbox mail, or fugitives will be stolen goods hidden in the inside, in a not knowingly, generally do not think that the possession of the goods in the civil law. And this is the possession in criminal law, because of a miscarriage in the mail or into the possession of stolen goods, possession has potential or constructive.

Visible, compared with possession in civil law, possession of criminal law on more standardized components. This two kinds of possession system functions: Civil possession, mainly lies in the evaluation of occupant position on the object, and to form a stable property dominant order, occupies itself with the property value, so in this case, a to don't know or not expected items also acquire possession, in science incompatibility. While the possession in criminal law, mainly lies in between the property and the person in possession of the control to determine the defacto dominance relations, and then to evaluate the nature of possession or capture the possession of the people. In possession, if all or other power source based on occupancy, since no legal questions, such as the property of others possession, in the criminal law sense is mainly related to constitute the crime of embezzlement, criminal law has historically focused on the subjective and objective evaluation mechanism of unity, so in the presence of human behavior is not knowing these things, legal evaluation of the behavior of no significance. And for the hijacking the possession of the people, in this case, no matter whether the mailbox has a knowledge of the mail, no matter whether the mail to a all, evaluation and law on seizing behavior should be independent. Obviously, the thief is stealing items from the mailbox, we cannot expect the mailbox vary its nature whether the item is a thief, were found the act constitutes a crime of embezzlement or theft.

Secondly, from the analysis of the objective aspect of possession, although the expressions were two on property in fact control and domination, but there is a significant difference in the actual connotation: possession system in the civil law lies in determining occupant position, then makes the possessor and others (including the right ) the rights and obligations of the boundaries, possession is itself a form of property ownership and control order, is clear, control and the property of sustained and stable. While the possession in criminal law, only to confirm the property being realistic dominate the facts, so a control can. Because of the difference of the possession in civil law and criminal law, civil law can inherit, transfer, and possession in criminal law is not, and is easy to destroy.

In addition, with the change of the social reality, holds the idea of civil law has conceptual and legal possession in the objective aspect, not only for the performance of the de facto control and domination and domination, including indirect control through legal relationship, such as the establishment of the lease, mortgage and usufruct and other occasions, to property the fact that the control is in the lessee, the pledgee and the usufructuary right holder, all still indirect possession of their property. In addition, inheritance law in every country, in succession occurs, heir although not actually manage the heritage, still possession. While the possession in criminal law is more realistic, although the modern criminal law is generally acknowledged the possession in criminal law not only refers to the simple fact that domination, also including through certificates of deposit, and other legal means and control of the property, but the kind of control is different from above by a legal relationship, is still very practical control of property and disposition status of possession, but means of control in fact because of social development and the realistic need to change, with the help of the bank, the depository institutions such as property to manage, but the person in possession of the domination disposition status has not affected, still did not escape the fact governing category.

Once again, from the object of possession, possession of civil law and enjoy more stable, similar to the right position on the matter, so the possession of the subject matter is legal or not in a strict requirements. Generally, except in the case of good faith, the illegal property cannot acquire possession, and possession of contraband will not be allowed to become the subject of. While the possession in criminal law is behavior person to the property of a control fact or situation, does not involve the evaluation of the legal, the subject matter is legal or not is not important. The contraband or other illegal goods tube has dominated also constitute possession, the illegal deprivation will each according to objective performance respectively constitute robbery, theft, fraud and other crimes. But the possession of the goods of refusal to return whether constitutes the crime of embezzlement, is controversial in the academic circles. In the criminal law of our country, the mainstream view is that the embezzlement in lawful possession as the premise, and the essence of as distinguished from theft and fraud. There exist but possession on unlawful cause possession of refusing to return the situation in reality, blindly adhere to the legitimate possession as the premise of the crime of embezzlement, scope will artificially limit of the crime of embezzlement, indulge crime. China's criminal law article 270 was also not clearly defined expropriation behavior of the legitimate holder of the premise, so will the crime of embezzlement in possession of limited to lawful possession is not appropriate, but should only admit the fact of possession of embezzlement crime establishment significance.

Occupy 2. of criminal law and civil law concept differences between the separation and analysis of the concept of possession of the civil law and criminal law, in fact, in Rome law had emerged. Rome will hold the distinction as the legal possession (possessio civils) possession and in fact (possessionaturalies) . legal possession in civil law, possession, refers to all the meaning of possession, possession of material based on the legal reasons, and it is a stable, continuous occupation, part of its share of the matter property, possession of itself constitutes of property ownership and control part of the order, protected by the extraordinary writs and right v.. The fact of possession, that holds the later jurists called (detentio) , refers to the actually have something, with modern possession in criminal law while it's hard to say exactly the same, but from Rome infringement on the fact of possession protection point of view, and the modern criminal law on the protection of possession has many similar.

In Rome the tort system to protect the fact of possession, makes an analysis we first have its criminal characteristics and modern tort system difference. The modern method of crime (crime) and tort (tort) be generalized to distinguish, from understanding, this distinction is aimed at harming national order or safety behavior and violates the rights of the individual behavior, and this distinction is opposite in the sanctions. Whereas in Rome law, distinguish the corresponding is public law public offense (crimen) and private law in the field of private delicts (Delictum) . but Rome law, public law, refers only to protect the interests of the state and the interests of the whole society of law, including the regulation of religious sacrificial activities and activity of state organs specification, while the private law is to protect the interests of all the private law, so in the Rome system, the private property of the infringement, such as theft, robbery, no matter how much, all belong to the private law field, specifically for the Rome tort (Delictum) system adjustment. (11) (P61) visible in Rome law, tort (Delictum) system actually includes the modern tort and criminal. The private criminal sanctions is to replace the revenge behavior appears, retain many of the characteristics of punishment, conflicted with the modern tort liability, features more criminal punishment. According to the law against theft can Justinian, puts forward three kinds of litigation, including litigation and criminal, British Rome law expert Barry? Nicholas also thinks, late in the Republic of Rome, a private criminal law plays the function of criminal law to a great extent. (12) (P218)

According to Justinian, theft refers to the use of material itself, or possession of the capture, here the possession is not limited to the legal possession, including many of the fact of possession. Because all interested person to save something, everyone doesn't even matter, can exercise the right of theft. Therefore, the washing of clothes although no ownership, nor does it constitute legal possession, but also the establishment of theft to steal share the fact, this also applies to the lessee, borrower etc.. Robbery is a part, is not to belong to the plaintiff property for the elements, as long as it is from someone picked up, whether it is borrowed, the leased property, security, even on content, whether that possession is good, whether the usufructuary or other rights, as long as the object with a stake, constitute robbery. But, here to exercise their right to appeal is generally the possessor, instead of all. (13) (P190 -197)

The Germanic law holds for the right appearance, rights and should not be separated, generally do not recognize the fact of possession, but because the possession has the effect of presumption of rights, in the possession of inconsistent with the real right of the occasion, the procedure for the overthrow of the possession of, in fact there are still protected accounted for. Therefore, the protection of possession in Germanic law, real rights have dominated, also including the simple facts control, such as hijacking 'dominance of trespassing property. (14) ( P72 - 80) by Germanic law protects the possession, including today's possession in criminal law, but the law does not discriminate against the law, but to be unified.

Modern civil possession also inherited the possession system of Rome law and the Germanic law, the subjective and objective factors, the establishment of possession system and modern criminal law that significant differences exist in the. The development from the respective institutional origin differences, is closely related with the position and role of differences between civil law and criminal law two legal department itself functions and two kinds of possession system in their respective legal systems in.

It certainly has its objectivity, should fully reflect the true nature and characteristics of the object, but also can not form any conception of human processing and preparation based on value judgment. No doubt, the formation of legal concept, also contains a value judgment and choice of jurists and legislators, they are often based on the need, artificially to certain things belonging or excluded from a concept. Of course, in making such judgment and choice is not arbitrary, but in its own category system status, based on the concept of role and function, to determine the reference to social needs and social concept. The concept of possession is certainly so in the case of criminal law and civil law, they must meet the need of the legal system. Possession refers to the meaning of the real possession and domination, legal confirmation and protection of the possessor, made the equivalent of the right people's position, and only in the real human rights filed a declaratory judgment action can be broken, have also become a part of property possession of itself, property ownership and control part of the order, so since the law of Rome, possession and ownership together, constitute the private property andThe property lawBasics. In this regard, the civil code provisions are separately, on the concept of possession, effectiveness and protection method, and gain change, transfer to special regulation.

While the possession in criminal law is not a possession system in civil law provisions, has not formed the system of specialized, its just a fact of property control state, is of great significance to identify and explain the property crime, mainly displays in: first, the crime of embezzlement crime constitution stipulate for own possession, important factors play patterns for the crime, to distinguish with other crime; secondly, theft, robbery, robbery, fraud, damage to property of another crime, the possession of others property equally well, thus accounting for meaningful narrow, set up very impact on the crime of possession; in addition, who owns the, is of significance to the victims of the crime are found the.

Possession system functions, one is to determine the person in possession of the status, rights and obligations clear boundaries in possession and the real rights of people, and the property of the dominant status of reality to law; on the other hand, is to protect the possession, to maintain social peace and order. While the possession in criminal law does not of itself constitute of property ownership and control part of the order, is a kind of fact of material domination of the state, on the one hand is to protect the state of possession, on the other hand is determined according to the nature of possession possession or hijacking the possession of the people.

On the protection of possession, possession in civil law itself constitutes protection reasons, possessory action also only in the protection of possession, but do not involve real rights, to achieve the confirmation of the real right and the protection, but also depends on other litigation. While the possession in criminal law as a defacto dominance status, does not of itself constitute protection reasons. The protection of criminal law is not limited to ownership, also be equal protection of possession, the fundamental reason lies in maintaining a conducive to the protection of the legal order of ownership. With the complexity of property relations, separation of ownership and possession of the growing phenomenon, in order to protect the property rights, must first to protect the property occupies itself, it will inevitably lead to the confusion of property relations. Moreover, the crime person, regardless of the hijacking is all or possession, whether the hijacking of possession is lawful possession and illegal possession, negative assessment of its behavior should not be affected, and this kind of negative evaluation of existence, is to protect all the rights to. This determines the possession in criminal law and civil law must differ: the possession in criminal law as a mere facts control state, than civil law occupies a more realistic, also excluded by indirect dominate possession, and possession in civil law as or similar to the right of a state, factors having more legal and notion; similarly, merely as a control property developments, the possession in criminal law only requires the possessor has general, general meaning, while the possession in criminal law will become the subject of rights similar to all the people, you need more specific intention of possession; rights nature of possession in civil law, also determines the possession of objects not contraband and other illegal items, while the possession in criminal law is no such requirement.

Three, several special cognizance in criminal law status correctly grasp the concept of possession in criminal law, that the general status, since without difficulty, but for some special status, great controversy. Therefore, we should be devoted to.

1. possesses several people on the master-slave relationship, has dominated management in fact on the property, and the number of human domination is not equal, but exists in the relation, of possession in criminal law belongs to whom? theory views are still inconsistent, there exist the common possession, possession and compromise of three. Tong said that the person has exclusive right of possession, but the subordinate status to hold the tool of the master, do not have independent possession. Generally speaking, this is justified, but only in accordance with the up and down position business to completely negate practitioners of the actual possession, they may be too absolute. As a life grocer clerk B to C international debt collection 2 yuan, B high trust based on the special rights of owners, recover the amount, the master of the cash has been the fact that domination disposition status, it has occupied the money in the criminal law.

Therefore, in judging who is the person in possession of the case, should not lump together, but in the specific decision of material fact dominant relationship, then identified.

2 joint possession number in accordance with equal status, common management dominate a property, possession belongs to whom? Taiwan scholar Lin Shantian thinks, no matter is a fact governing control force are equal, all joint dominant relationship, should be the number one joint possession. (13) (P212) but this viewpoint is worth discussing, share index property given common, equivalence can be a dominant, only a few people dominate form resultant force, can be said to share something, otherwise the number is something common management, but should be up and down, principal and subordinate relationship. In the P2P share the common occasions, a person in possession, in relation to other common possession of can not be said to be their possession, therefore share the common ownership of the destruction, shall constitute the crime of theft and non crime of embezzlement, for example, a property of the warehouse while using the keys begin to open, the two keys are held by Party A and Party B two people, the two people constitute a parallel control, one day a while B is not in, used his key to open a lock, and then hammer breaking another lock away property, its behavior should constitute theft instead of the crime of embezzlement. However, this share the equal and Co. In the common situation, without the consent of the consent of other co owners to dispose of their own property, which belongs to the custody of property of others illegally for himself, nature can constitute a crime of embezzlement.

3. possession of package to load the container or special packaging possessions, lock or seal, commissioned custody or transported, how its ownership, there is a trustee possession, possession and possession of the principal difference between three kinds of claims.

We think, in which "the trustee holds that" the most appropriate. The difference between "possession" the whole and content packaging completely separated, to gain the whole or part of it, but it is difficult to conclusion, be approved, and will lead to the imbalance penalty. Possession of the home, should be the focus of investigation behavior of human domination of the matter, should not over emphasize the difference between the whole and the individual package contents, and shall all be identified. "Client holds that" one-sided emphasis on the particularity of the packaging in the law, ignoring the trustee practical grasp the reality of property. According to the said, the trustee holds the packaging, content, will constitute the crime of theft, not fair. "The trustee holds that" the fact dominant force, the actual status of the were considered, so the reasonable, should be adopted in judicial practice.

4. on the possession of the deceased in law and in fact have lost the ability to dominate the property, so the deceased exist, in someone to get the dominant fact management, should be regarded as out of a possession. But in the dead is killed by the things people, share the dead body is special, the academic circles also disputed the following test, two cases are discussed:

(1) behavior intention to seize property and kill each other, after obtaining his victims possession of the property, only constitutes a crime of robbery, no doubt. However, problems in the possession of property after death, our little circle of criminal law and, in countries such as Germany and Japan have different opinions: some people think that the death of the victims at the same time, we transfer of possession to the heir, but the possession in criminal law to govern in fact existence is necessary, in succession still no real access to property, not be considered to have possession of. That the victim was killed instantly and another person, will transfer of possession to the behavior of people, but this view ignores the robbery included violations of personal and property of two behavior, if think that killing each other moments of possession is transferred to the behavior of people, so that make the behavior of people kill each other after being people find, not take property escaping situation also constitute the crime of robbery crime, the general theory of our country will adopt this proposition, that the robbery causing death does not exist unaccomplished. (17) (P85 - 88) but robbery as a crime of property, property interests should be the main legal interest is infringed, therefore, did not obtain property under the circumstances that robbery, loss. There are people that should be as a whole study from the death of the victim, the victim died before focusing on possession, and the ultimate goal of killing behavior is to seize the possession, so people have property in the victim's death, should also be considered for the possession of the harm, the view is more reasonable, can agree with.

(2) to kill each other after the plunder intention situation, there is the establishment of theft or embezzlement.  Advocated the establishment of larceny has various reasons: violated possession speaker, that after death, is still in the possession of property; theft of speaker, said that he had already died, the property that students who continue to occupy the problem, in the possession of the infringed not early, his victims in possession;, some people believe that, after the death of its successors the possession of his property. Advocated the establishment of out of a possession crime of embezzlement, once that person to death, for property possession will disappear, the heir to obtain property of reality, as out of a possession.

Many Japanese mathematics and court decisions have advocated the theft, the behavior of the victim is dead after a series of behavior with observation, killings and obtaining property behavior in the range space, close in time, is actually the act of killing, the victim from the property possession, to seize their property, but because of the behavior of property is not achieved with a lethal behavior as a means, is not considered robbery, only the establishment of theft. China's Taiwan practice employs the infringement upon the heir to the fortune said, think that constitute the crime of theft. (15) (P1086)

On this problem, scholars in our country generally adopt the same position with Taiwan practice, it has the property of its successors possession, therefore the latter behavior should constitute the crime of theft. (16) ( P773) exists but the heritage in possession of the dead to explain the problem, if the estate of the deceased as immovable property, or in housing and other real heir can dominate the place to occupy no heir. If the victim was killed in the wilderness, their belongings, although be heir to all that, but in the actual control, should be out of a possession. We think that the kinds of circumstances, if the behavior of people kill after a short period of time to get property intentionally, should learn from Japanese case practice, observation from the whole, the people made new occupation, will explain to the possession of the deceased's trespassing, theft, if murder after a long time to the intent to seize property, it should be interpreted as the crime of embezzlement.

5. of real property possession of real property possession, with defacto dominance as elements, the property should be in the third person action status in fact. Therefore, the implementation of the registration of the immovable property, in principle all people by the registration of possession, other's property, forgery deed registration for the owner, for third people is also can dispose of immovable property status, so it can be regarded as the possessor. So, neither true nor false registration of ownership, management control other people's property in fact, can constitute possession? this strict interpretation should be, first is must grasp the possession in criminal law in essence is the dominant relationship, except for the fact that the kanrei, whether the property (property) in also to third people in fact disciplinary position, this position should think it has not. If a minor (or patient) legal agent, guardian of property guardianship. Conversely, if only in the fact that the management of immovable property, but has not the right of disposition, it can not be regarded as immovable people owned property, they because of fake right or other matters of unauthorized disposition and the management of immovable property, shall constitute fraud does not constitute the crime of embezzlement, which has a similar decision, in japan.

6 forgotten property and possession of property what is forgotten, the civil law in the lost property to be different? The theoretical circle of criminal law in our country exist controversies. Tong said that the two different meanings, should distinguish, distinguish standard is the owner can recall the lost time, place. Can you remember who has not completely lost control of property, this time for the forgotten things, otherwise the lost property. The object of criminal law provisions of article 270 of the crime of misappropriation shall not include the lost property, lost property of refusal to return onlyThe general principles of the civil lawThe civil liability provisions of article 79 . So to say, whether the lost property of refusal to return people constitute a crime, depending on the owner of lost property can remember the time, place, and not in the objective behavior itself and the subjective fault, this is obviously unreasonable. Therefore, some scholars put forward to make a distinction between the forgotten and lost property should not, that the two and no essential difference between the criminal law, the provisions of article 270 forgetting things should broaden the interpretation, as a non for possession or the consent of the owner, accidentally lost possession of the property. (16) (P442) we also agree with this assertion, however, according to article 270th of the criminal law, if the finder refused to return lost property has constituted the crime of embezzlement behavior raised too high, no doubt to the ordinary people, the restraining criminal law violates the principle, so the misappropriation behavior, should be in accordance with the the civil procedure to solve, only if the case is serious to crime.

Others exist is not forgotten, but sometimes it is difficult to distinguish the two, it should be judged according to the owner of the property still has control. Usually, the victim has placed the consciousness, even if the time, distance should not be identified as forgotten. For example, the Japanese case, unlocked Bicycle stolen in the park after 14 hours, because a license recorded the name of the owner, basket with the umbrella, and park bicycle bridge in fact established parking, car theft should be able to recognize this point, therefore, the car belongs to the possession of others. The victim is not consciously placed and obviously forgotten property, is not absolutely identified as lost property, if the property lien distance, forget time, still can be regarded as the possession of others. If a person forget the camera on a park bench, but not far from and remember in two minutes, hurry back to take the camera, this camera has constituted the forgotten things is hard to say. Of course, whether the forgetting of judgment, in addition to time and space factors, also should consider the nature and the place, the social order, according to the general social values to determine. Customer forget to bank, forgetting to passengers, passengers forgotten hotel in a taxi or other specific places of master, although lost possession, but the host specific places, according to generalize or constructive possession, even not aware of the existence of the property has been occupied, thus denying the forgotten things. In this sense, the specific place belongings, take third possession or "double possession" is justified. (17) ( P607) but, to set up a special place, shape, nature and the place and the use of related, often fluidity and open a big place, on the third (site owner) of dominance has greater impact, is generally not regarded "specified here". Such as forgetting to train on the goods, by passengers is very frequent, conductor of the property of the force is very weak, so do not belong to the conductor possession, shall be deemed to be forgotten.

Notes.

Think of the Russian criminal law theory and practice, possession of credit and deposit, do not in fact control of money, credit and deposit on the punishment, only on the intention structure property crime preparation. See Huang Daoxiu: "Russian federal criminal code interpretation" (below) , China University of Political Science and Law press, 2000 edition, 400th.

To this, some scholars criticize, think on behalf of financial bills keep others deposit certificates and other circumstances, there is a double possession of money as a deposit, custodian of the control and domination, to control the financial institutions and the deposit of all the people. The depositary free withdrawal behavior, shall be deemed to violate financial institutions and deposit all possession, constitute the crime of theft. See Ruan Qilin ": financial property control and the characteristics of the crimes of property violation" law "," 2001 eighth, thirty-first - 35.

The Anglo American criminal law theory also thinks, the constitution of possession should be a certain degree of behavior control in fact objectively, on subjective intention of possession. See [English] Smith, Hogan: "the British criminal law", Law Press. Trans. Li Guifang et al, 2000 edition, 586th pages.

The which, whether on the possession of "illegal trust" refusing to return behavior constituted the crime of embezzlement debate especially, there have always been positive and negative answers to that dispute, confined to limited space, this paper does not discuss.

The other two kinds of litigation as a private criminal litigation, and demanded the return of the stolen objects in res (in REM) or for the return of the price action in personam (in personam). Theory and case in civil law countries and Japan, have agreed to constitute robbery homicide, Japan Sendai higher the 1953 January 30 decision, quoted from Cai Dunming editor of "criminal law" (bottom), the selection of Taiwan five southern publishing company in 1984 edition, page 758th.