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 "with the purpose of illegal possession" for certain property crimes and economic crimes. Additionally, although many articles do not explicitly state this element, based on the description of objective acts in the articles and the relationships between criminal law provisions, the purpose of illegal possession is also required. For example, crimes such as theft, fraud, and robbery all require "with the purpose of illegal possession." Judicial personnel cannot simply assume that any element not explicitly stated in the Criminal Law is not a constitutive element. In fact, criminal legislation both domestically and internationally shows that constitutive elements are divided into written and unwritten constitutive elements. When a certain crime clearly requires "with the purpose of illegal possession" or when related articles explicitly demand "with the purpose of illegal possession," the criminal law provisions often omit the stipulation of "with the purpose of illegal possession." This is the case for crimes such as theft, fraud, and robbery. Take financial fraud crimes as an example.

The reason why the specific provisions of the Criminal Law only stipulate "with the purpose of illegal possession" for the crimes of fundraising 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. The key distinction lies in whether the perpetrator subjectively has the purpose of illegal possession. Other financial fraud crimes generally do not have such issues, so the criminal law provisions omit the stipulation regarding the purpose of illegal possession.

How to understand the "intent of illegal possession" in criminal law is directly related to the boundary between crime and non-crime, and between this crime and that crime. The following mainly uses theft as an example for explanation.

The elements of a crime have two functions: one is to distinguish between crime and non-crime; the other is to distinguish between this crime and that crime. "Intent of illegal possession" also has these two functions. On one hand, because it must be for the purpose of illegal possession, unauthorized use does not constitute theft. For example, merely taking someone else's bicycle for a ride and then returning it is an act of unauthorized use; because there is no intent of illegal possession, it does not constitute theft. On the other hand, because it must be for the purpose of illegal possession, simply destroying property does not constitute theft. For example, if an actor moves a computer from the victim's home on the eighth floor and then throws it down from the stairwell on the seventh floor, causing damage, if the actor moved the computer with the intent of illegal possession but threw it down due to encountering the victim or other reasons, it still constitutes theft; if there is no intent of illegal possession and the act is carried out solely with the intent to destroy, it constitutes the crime of intentional destruction of property.

"Possession" in the intent of illegal possession (different from "possession" as the object of property crimes) is not equivalent to the concept of possession in civil law, nor does it merely refer to factual domination or control. Because if illegal possession is understood as mere factual domination or control, then when someone uses another's property without authorization, the actor factually dominates or controls the property, thus the unauthorized use would have the intent of illegal possession and constitute theft, expanding the scope of theft punishment. For another example, when an employee of a company, enterprise, or other unit misappropriates unit funds using their position, they have the intent to dominate and use the funds, but because they intend to return them, they do not have the intent of illegal possession, and thus do not constitute the crime of embezzlement. If the intent of illegal possession is interpreted as factual domination or control, it would be impossible to distinguish between the crime of misappropriation of funds and the crime of embezzlement.

For another example, when illegally absorbing public deposits, the actor has the intent to factually dominate or control others' deposits, but because they intend to return them, they do not have the intent of illegal possession; whereas the crime of fundraising fraud, in addition to factually dominating or controlling others' funds, also involves no intention to return, meaning there is an intent of illegal ownership, thus differing from the crime of illegally absorbing public deposits. If the intent of illegal possession is understood as the intent of factual domination, it would be impossible to distinguish between the crime of illegally absorbing public deposits and the crime of fundraising fraud. It is evident that only by understanding the intent of illegal possession as the intent of illegal ownership can this subjective element function to distinguish between crime and non-crime, and between this crime and that crime. Specifically, the intent of illegal possession (illegal ownership) refers to the intention to exclude the rights holder, treat another's property as one's own, and use or dispose of it according to its usage.

First, the establishment of crimes like theft requires the actor to subjectively have the intention to exclude the rights holder and treat another's property as their own. The function of this element is to exclude acts of unauthorized use that do not warrant criminal punishment from being crimes. Second, the actor must also have the intention to use or dispose of the property according to its usage. The function of this element is to distinguish crimes of obtaining property like theft from crimes of destroying property. It should be noted that using or disposing of property according to its usage does not require strict adherence to its original usage, only to its possible usage. For example, stealing someone else's wardrobe for firewood to keep warm should also be considered as having the intent of illegal ownership. Clearly, "disposal" here does not include mere destruction.

Clarifying this is of great significance for judicial practice in determining crimes. For example, directly consuming public or private property is an act with the intent of illegal possession. For instance, an employee of a (non-state-owned) company, during their tenure, repeatedly used company funds to travel abroad more than ten times, spending hundreds of thousands of yuan; or an employee of a (non-state-owned) enterprise, during their tenure, privately used unit funds for entertainment consumption. The actor subjectively treats public funds as their own property and follows the economic use of the funds, thus having the intent of illegal possession; objectively, it results in the unit losing property ownership. It should be recognized as the crime of embezzlement.

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, when criminal law stipulates or criminal law theory requires the purpose of illegal possession, it is essentially to indicate that the perpetrator intends to permanently deprive others of their property and utilize it in accordance with its economic use; thereby demonstrating the degree of infringement on legal interests (property) and marking the boundaries between crime and non-crime, and between this crime and that crime. However, whether the perpetrator unlawfully possesses for themselves or for a third party, it equally demonstrates the degree of infringement on legal interests. For example, if A steals C's car to have a car for themselves, their act infringes on C's property.

Similarly, if A steals C's car to give it to B for use, and immediately hands it over to B free of charge, A's act undoubtedly also infringes on C's property; if A steals C's car to give it to their entity for use, and immediately hands it over to the entity free of charge, A's act still infringes on C's property. From this perspective, whether the perpetrator unlawfully possesses for themselves or for a third party does not affect the degree of infringement on legal interests. From the perspective of criminal law's purpose, 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 an entity, C's property is no longer protected by criminal law.

Second, the "purpose of illegal possession" stipulated in criminal law and criminal law theory is not limited to "purpose of illegal possession for oneself"; as such, "purpose of illegal possession" naturally includes the purpose of illegal possession for a third party.

Third, interpreting the "purpose of illegal possession" as including the purpose of illegal possession for a third party or an entity can still enable the purpose of illegal possession to have the aforementioned two functions: because stealing another's property is to enable a third party or entity to unlawfully own it, it is distinguished from unauthorized use; because stealing another's property is to enable a third party or entity to utilize it in accordance with its economic use, it is distinguished from destruction of property.

Fourth, criminal legislation, criminal law theory, and judicial practice in other countries do not limit the purpose of unlawful ownership to one's own unlawful ownership. For example, the subjective element of various property acquisition crimes stipulated in Article 127 and below of the Austrian Criminal Code is "intent to obtain an unlawful benefit for oneself or a third party," not limited to one's own benefit; the subjective element of property acquisition crimes stipulated in Article 137 and below of the Swiss Criminal Code is "for one's own or a third party's unlawful benefit"; and the same applies to criminal laws in many other countries.

Clarifying this point is particularly significant for determining property crimes and economic crimes. From a macro perspective, one should not assume that the essence of property crimes and economic crimes lies in the perpetrator obtaining benefits simply because "illegal possession as the purpose" 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 inconsistency between whether the perpetrator obtains benefits and whether the act infringes upon legal interests, judicial personnel should focus on whether the act infringes upon legal interests, not on whether the perpetrator obtains benefits. From a micro perspective, clarifying that the purpose of illegal possession includes enabling a third party or entity 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.