持有型犯罪争点探微

持有型犯罪中争论较大的两个问题就是持有的构成与持有的性质。持有是主客观的统一 ,只要行为人主观上认识到所持物的存在、客观上控制特定物品就可构成持有 ,无需认识所持物品的性质 ,控制并不受时空限制。刑法中的行为不同于自然意义的行为 ,它是具有社会意义的人的举止 ,因此否认持有的行为性是没有根据的。作为与不作为的界限在于所违反规范的类型 ,持有作为第三种行为类型无论在形式逻辑上还是事实上都不能成立。持有的性质只能视具体情况而定 ,通常情形是不作为 ,在仅有获取持有行为时才是作为

Preliminary Study on the Controversial Points Regarding Crimes of Possession

The two major controversial points with respect to crimes of possession are about construction of possession and nature of possession.Possession is a unity of subjectivity and objectivity. As long as an actor subjectively realizes the existence of the possessed material, the objectively controlling over a specific object will constitute possession. There is no need to realize the characteristic of the object. Control is not limited by time and space. Being different from the act in natural sense, the act in criminal law is the act conducted by the people in social sense. Therefore, there is no merit for denying the act characteristic of possession. The dividing line between act and omission lies in the type of violated norm. Possession, as the third type of act, cannot be tenable no matter in formal logic or in fact. The characteristic of possession can only be determined in specific situations. Generally, it's omission. It is an act only when there is an act of acquiring possession.