从量刑反制定罪视角看窃取欠条行为的定性

发布时间：2018-04-18 17:57

本文选题：窃取欠条 + 量刑反制定罪　；参考：《江西财经大学》2017年硕士论文

【摘要】：欠条经常使用于我们经济生活中,但刑法没有明确规定侵害欠条行为性质,对债务人采取窃取、抢夺、抢劫欠条方式消灭债务的行为,存在学术争议和实践困惑。理论界对窃取欠条行为定性存在罪与非罪的分歧,其中“有罪说”又分为盗窃罪、侵占罪、故意毁坏财物罪等不同看法。司法实践中主流立场对窃取欠条行为是以盗窃罪论处,但存在以下问题:一是窃取欠条既遂判定标准不一,部分判决以欠条是否被债务人控制或损毁为标准,部分判决则以债务人通过窃取欠条行为是否达到消灭债务之目的为标准,特别是在欠条所载金额巨大情形,司法实践中会倾向性以后者为标准,认定为盗窃未遂,以达到避免债务人承担较重法定刑之目的;二是欠条是否是债权债务关系的唯一证明决定了是否成立犯罪,导致一样的危害行为得到不同等对待;三是以盗窃罪论处量刑不一致问题,不同案例中的窃取欠条行为人在主观方面情况大致相同,但存在窃取欠条所载金额大的比金额小的量刑要轻;四是判决公信力等问题,辩护人从“侵占罪、盗窃未遂、非法债务不受法律保护”等方面提出罪与非罪、此罪与彼罪的辩护意见,上诉率也较高。欠条本身一张白纸价值轻微,达不到我国财产犯罪对于数额较大的要求,但欠条是债权人主张债权的重要凭证,属于一种财产性利益,窃取欠条是非典型财产犯罪行为。在一些复杂案件处理时,应遵守罪刑相适应原则,以量刑反制定罪为视角,在刑法解释方法允许的多种多种情况中择取一个妥当的法条予以适用,从而实现罪刑均衡。量刑反制定罪适用范围:应限于同类犯罪,所涉罪名刑法条文之间存在牵连关系,条文表述存在规范的构成要件要素。窃取欠条行为在上述适用范围之内,对债权实现构成危险,债权人的债权请求权得不到法院支持。从国外处理经验来看,也具备应受刑罚处罚性。窃取欠条行为实质是债务人先通过借贷合法占有,后窃取欠条拒不返还,符合侵占罪行为特征;窃取欠条相较于窃取同等金额财物,危害后果较轻,以侵占罪论处有助于实现罪刑均衡,可以解决以盗窃罪论处带来的既遂标准不一问题,侵占罪为自诉罪名,属亲告罪,符合中国债权债务人存在关系渊源的国情,有助于债权人实现债权。以侵占罪论处可以避免欠条是否唯一的偶然因素决定罪与非罪,从而有助于保护被告人不受逼供。综上,以量刑反制定罪为视角,对窃取欠条行为定性为侵占罪较为妥当,实现了法律效果和社会效果的统一。
[Abstract]:IOUs are often used in our economic life, but the criminal law does not clearly stipulate the nature of infringing IOUs, and the behavior of stealing, robbing and robbing the debtor of IOUs to eliminate debts, there are academic disputes and practical puzzles.The difference between the crime and non-crime in the behavior of stealing IOUs is divided into the crime of larceny, the crime of embezzlement, the crime of intentionally destroying property and so on.In judicial practice, the mainstream position is that the theft of IOUs is regarded as the crime of theft, but there are the following problems: first, there are different criteria for judging the accomplishment of the theft of IOUs, and some judgments are based on whether the IOUs are controlled or damaged by the debtor.Some judgments are based on whether the debtor achieves the purpose of eliminating the debt by stealing the IOUs, especially when the amount of money contained in the IOUs is huge, and the latter will be regarded as attempted theft in judicial practice.In order to avoid the debtor to bear a heavier legal penalty, second, whether the IOU is the only proof of the relationship between creditor's rights and debts determines the establishment of the crime, resulting in the same harm behavior is not treated equally;Third, the inconsistency of punishment for theft. In different cases, the subjective situation of the person who stole the IOU is roughly the same, but the penalty of stealing the IOU with a large amount is lighter than that of the smaller one. Fourth, the judgment credibility, and so on.From the aspects of "embezzlement, attempted theft, illegal debt not protected by law" and other aspects of the defense of this crime and his crime, the appeal rate is also higher.The value of a blank piece of paper is slight, which can not meet the requirement of large amount of property crime in our country. However, IOU is an important document for creditors to claim creditor's rights, and belongs to a kind of property interest. Stealing IOU is an atypical property crime.When dealing with some complicated cases, we should abide by the principle of adaptation of crime and punishment, take sentencing counter-system conviction as the angle of view, choose an appropriate article of law to be applied in a variety of situations permitted by the method of criminal law interpretation, so as to achieve a balance between crime and punishment.The scope of application of sentencing counterconviction: it should be limited to the same kind of crime, involving the criminal law provisions of the related offences, and the provisions express the elements of the constituent elements of the norms.The theft of IOUs within the scope of application above poses a danger to the realization of creditor's rights, and the creditor's claim right is not supported by the court.From the experience of foreign processing, it also has the nature of punishment.In essence, the act of stealing IOUs is that the debtor takes possession legally through borrowing first, and then steals the IOUs and refuses to return them, which conforms to the characteristics of the crime of embezzlement; stealing IOUs is less harmful than stealing the same amount of money and property.The punishment of embezzlement is helpful to realize the balance of crime and punishment, and can solve the problem of different standards of accomplishment brought about by the crime of larceny. The crime of embezzlement is the charge of private prosecution, which belongs to the crime of personal prosecution and conforms to the national conditions of the existence of the relationship between the debtor and the creditor in China.Help creditors realize their claims.The conviction of embezzlement can avoid whether the IOU is the only accidental factor that determines the crime and non-crime, which helps to protect the defendant from being forced to confess.To sum up, it is more appropriate to classify the theft of IOUs as the crime of embezzlement from the angle of sentencing counterconviction, and realize the unification of legal effect and social effect.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

【参考文献】