Zhang Mingkai: How to understand "with the purpose of illegal possession" in criminal law
The Specific Provisions of the Criminal Law explicitly stipulate the subjective element of “for the purpose of illegal possession” for certain property crimes and economic crimes. In addition, although many provisions do not explicitly provide for this element, based on the description of objective conduct in the provisions and the relationships between criminal law provisions, the purpose of illegal possession is also required, such as in the crimes of theft, fraud, and forcible seizure, all of which require “for the purpose of illegal possession.” Judicial officers cannot simply assume that any element not explicitly provided for in the Criminal Law is not a constitutive element. In fact, criminal legislation both domestically and internationally demonstrates that constitutive elements are divided into written constitutive elements and unwritten constitutive elements. When a certain crime obviously requires “for the purpose of illegal possession” or when the relevant provisions clearly require “for the purpose of illegal possession,” the criminal law provisions often omit the stipulation regarding “for the purpose of illegal possession.” This is the case with the crimes of theft, fraud, and forcible seizure. Take financial fraud crimes as an example.
The reason why the Specific Provisions of the Criminal Law only stipulate "for the purpose of illegal possession" for the crimes of fund-raising fraud and loan fraud is that the former is easily confused with the crime of illegally absorbing public deposits, and the latter is easily confused with loan disputes, and the key to distinguishing each lies in whether the perpetrator subjectively has the purpose of illegal possession. Other financial fraud crimes generally do not have such problems, so the provisions of the Criminal Law omit the stipulation regarding the purpose of illegal possession.
How to understand "for the purpose of illegal possession" in criminal law directly concerns the boundary between crime and non-crime, and between one crime and another. The following mainly uses theft as an example for illustration.
The elements of a crime serve two functions: first, distinguishing crime from non-crime; second, distinguishing one crime from another. "With the purpose of illegal possession" likewise serves these two functions. On the one hand, because the purpose of illegal possession is required, unauthorized use does not constitute theft. For example, temporarily taking another person’s bicycle without permission and returning it shortly afterward is an act of unauthorized use; because there is no purpose of illegal possession, theft is not established. On the other hand, because the purpose of illegal possession is required, the mere destruction of property also does not constitute theft. For example, the perpetrator moves a computer out of the victim’s home on the eighth floor and then throws it from the stairwell entrance on the seventh floor to the ground below, causing the computer to be destroyed. If the perpetrator moved the computer out with the purpose of illegal possession and threw it downstairs only because he encountered the victim or for other reasons, theft is still established; if he did not have the purpose of illegal possession and carried out the above act merely with the intent of simple destruction, then the crime of intentionally destroying property is established.
The "possession" in the purpose of illegal possession (which differs from the "possession" as the object of crimes against property) is not an equivalent concept to possession in civil law, nor does it merely refer to factual dominion or control. If illegal possession were understood as mere factual dominion or control, then when a person misappropriates another's property, the actor in fact also exercises dominion or control over that property, and thus the act of misappropriation would carry the purpose of illegal possession, thereby establishing the crime of theft—which would unduly expand the scope of punishment for theft. Similarly, when an employee of a company, enterprise, or other unit misappropriates unit funds by taking advantage of their position, they possess the purpose of controlling and using those funds, but because they intend to return them, they lack the purpose of illegal possession, and therefore the crime of occupational embezzlement is not established. If the purpose of illegal possession were interpreted as factual dominion or control, it would be impossible to distinguish the crime of misappropriation of funds from the crime of occupational embezzlement.
For another example, in the case of illegally absorbing public deposits, the perpetrator has the intent to factually dominate or control others’ deposits, but because they intend to return them, they lack the purpose of illegal possession; whereas the crime of fund-raising fraud, in addition to factually dominating and controlling others’ funds, involves no intention to return them, that is, it entails the intent of unlawful ownership, and therefore differs from the crime of illegally absorbing public deposits. If the purpose of illegal possession were understood as the purpose of factual domination, then it would be impossible to distinguish the crime of illegally absorbing public deposits from the crime of fund-raising fraud. It can thus be seen that only by understanding the purpose of illegal possession as the purpose of unlawful ownership can this subjective element possess the function of distinguishing crime from non-crime and one crime from another. Specifically, the purpose of illegal possession (unlawful ownership) refers to the intent to exclude the rights holder, treat another’s property as one’s own, and utilize and dispose of it in accordance with the property’s intended use.
First, the establishment of crimes such as theft requires that the perpetrator subjectively intends to exclude the rights holder and treat another person’s property as his or her own. The function of this element is to exclude misappropriation that does not warrant criminal punishment from the scope of crime. Second, the perpetrator must also intend to use and dispose of the property in accordance with its intended use. The function of this element is to distinguish crimes of obtaining property, such as theft, from crimes of destroying property. It should be noted that so-called use and disposal in accordance with the property’s intended use does not require complete adherence to the property’s original use; it is sufficient to follow a use that the property may possibly have. For example, if a person steals another person’s wardrobe for the purpose of keeping warm and uses it for a fire, it should still be considered that the person has the purpose of unlawful possession. Obviously, “disposal” here does not include mere destruction.
Clarifying this point is of great significance for the determination of crime in judicial practice. For example, the act of directly consuming public or private property constitutes an act with the purpose of illegal possession. For instance, some employees of (non-state-owned) companies, during their employment, repeatedly used company funds to travel abroad without authorization more than 10 times, spending several hundred thousand yuan; some employees of (non-state-owned) enterprises, during their tenure, privately used unit funds for consumption at entertainment venues. The perpetrator subjectively treated the public funds as their own property and complied with the economic use of the public funds, thereby possessing the purpose of illegal possession; objectively, this caused the unit to lose ownership of the property. It should be determined as the crime of embezzlement by taking advantage of one’s position.
The purpose of illegal possession includes not only the purpose of the perpetrator unlawfully possessing for themselves, but also the purpose of a third party (including an entity) unlawfully possessing.
First, the requirement under criminal law provisions or criminal law theory that an act be committed with the purpose of illegal possession is simply intended to demonstrate that the perpetrator aims to permanently deprive another person of their property and to utilize it in accordance with the economic use of the property. This serves to illustrate the degree of infringement upon the legal interest (property) and to delineate the boundaries between crime and non-crime, as well as between different crimes. However, whether the illegal possession is by the perpetrator themselves or by a third party, it equally demonstrates the degree of infringement upon the legal interest. For example, if A steals a car from C in order to have a car to drive, their act infringes upon C’s property.
Similarly, if A steals a car from C in order to provide B with a vehicle to drive and immediately delivers it to B for use free of charge, A’s act undoubtedly infringes upon C’s property as well. If A steals a car from C in order to provide a vehicle for a work unit and immediately delivers it to the unit for use free of charge, A’s act still infringes upon C’s property. From this it can be seen that whether the perpetrator intends unlawful possession for himself or for a third party does not affect the degree of infringement upon legal interests. From the perspective of the purpose of criminal law, C’s lawful property is protected by criminal law, and it cannot be said that when A steals C’s car for a third party or a work unit, C’s property is no longer protected by criminal law.
Second, the "purpose of illegal possession" as stipulated in criminal law provisions and criminal law theory is not limited to "the purpose of illegal possession by oneself"; that being the case, "the purpose of illegal possession" naturally includes the purpose of illegal possession by a third party.
Third, interpreting "intent to illegally possess" to include intent to enable a third party or entity to illegally possess can likewise enable the intent to illegally possess to serve the two aforementioned functions: because stealing another's property is for the purpose of enabling a third party or entity to unlawfully possess it, it is thereby distinguished from the act of misappropriation; and because stealing another's property is for the purpose of enabling a third party or entity to utilize the property in accordance with its economic use, it is thereby distinguished from the destruction of property.
Fourth, the criminal legislation, criminal law theory, and judicial practice of other countries do not limit the purpose of unlawful appropriation to unlawful appropriation for oneself. For example, the subjective elements of various property acquisition offenses stipulated in Article 127 et seq. of the Austrian Criminal Code are all “intent to obtain an unlawful benefit for oneself or a third party,” rather than being limited to one’s own benefit; the subjective elements of property acquisition offenses stipulated in Article 137 et seq. of the Swiss Criminal Code are all “for the unlawful benefit of oneself or a third party”; the criminal laws of many other countries are likewise the same.
Clarifying this point is of particular significance for determining property crimes and economic crimes. From a macro perspective, one should not assume that the essence of property crimes and economic crimes is that the perpetrator obtains benefits merely because "the purpose of illegal possession" is a subjective element. In reality, the essence of a crime is the infringement of legal interests, and conviction and sentencing fundamentally consider the degree to which the act infringes upon legal interests. When there is an inconsistency between whether the perpetrator obtained benefits and whether the act infringed upon legal interests, judicial officers should focus on whether the act infringed upon legal interests, rather than whether the perpetrator obtained benefits. From a micro perspective, clarifying that the purpose of illegal possession includes causing a third party or a unit to illegally possess can resolve many specific issues.
For example, when a perpetrator, for the benefit of an entity, instructs others or directly commits theft, they still have the purpose of illegal possession, fully meeting the subjective and objective elements of theft, and should be convicted of (natural person) theft. Another example: since the purpose of illegal possession includes enabling a third party to illegally possess, acts such as theft are not limited to transferring another's property into one's own possession but include transferring another's property into the possession of oneself or a third party (including an entity). Similarly, in joint theft cases, a person without the purpose of illegal possession, as long as they know that others have such a purpose and provide assistance in committing theft, also becomes an accomplice to theft.
