非法占有封缄物行为的刑法评价

发布时间：2018-05-19 10:37

本文选题：封缄物 + 占有　；参考：《辽宁大学》2017年硕士论文

【摘要】：在社会生活中,委托他人代为保管封缄物的现象较为普遍,但也由此产生了许多非法占有封碱物的问题。比如文中马某侵占案和郑某、王某盗窃案中,如何对受托人进行定罪处罚,在理论界及司法实务界仍然是一个有争议的问题。马某案中,马某携带代为保管的密码箱逃跑,并且主观上想非法占有密码箱内的钱财,由于意志以外的原因没有得逞,此时是构成盗窃罪还是侵占罪,值得商榷;在郑某、王某盗窃案中,二者将代为运输的汽油以调换的方式进行盗取并非法转卖获利,是构成职务侵占罪还是盗窃罪,也存在争议。根据有些学者观点,封碱物整体和封碱物内容物是占有权属不同的物体,应该区分对待。委托人对财物进行封口上锁的行为已经在事实上阻断了受托人对包装箱内财物的占有,委托人仍支配控制着箱内财物。因此,对行为人非法占有包装箱整体的行为,毫无疑问成立侵占罪;对行为人非法占有箱内财物的行为,应以盗窃罪论。但其他学者却有不同认识,他们认为包装箱和其内部财物具有归属同一性,受托人对包装箱的占有是一个不可分割的占有整体,委托人对财物的封碱上锁仍然阻止不了受托人在事实上的占有状态。因此,对包装物整体及其内部财物的非法侵占都成立侵占罪。我国部分学者对这个问题也进行了研究,而截至目前,理论研究的深度大多还停留在各种学说的理论层面上。而在司法实践中,对非法占有封缄物案件的解决也并未形成统一的认识和规定。本文将通过案例对封缄物概念、非法占有封缄物理论、刑法中占有认定等方面对这一问题进行分析。由于非法获取封缄物及其内部财物的行为有别于其他一般侵犯财产权利的行为,其在行为对象及行为手段上有其特殊性。理论界对非法占有封缄物行为的罪名认定问题存在两种不同观点,一种观点认为成立盗窃罪,另一种观点认为成立侵占罪。产生这一分歧的根本原因在于不同学者对封缄物内部财物占有归属的认定存在不同的认识。若认定封缄物整体归受托人占有,那么受托人的行为成立侵占罪,若认定封缄物内部财物归委托人占有,那么受托人的行为成立盗窃罪。对于封缄物整体及其内容物归谁占有的问题,学界主要有委托人占有说、受托人占有说、区别占有说等观点。本文认为在封缄物的占有归属认定问题上应该坚持区别占有说的观点,因为不管从刑法占有的含义、封缄物与其内容物关系的角度,还是从一般社会观念的理解,区别占有说显得最为合理妥当。而从具体的司法实务来看,也都是根据区别占有说来认定非法占有封缄物的行为。
[Abstract]:In social life, the phenomenon of entrusting others to take care of sealed objects is more common, but it also causes many problems of illegal possession of sealed substances. For example, in the case of Ma Mou embezzlement and Zheng Mou and Wang Mou theft, how to convict and punish the trustee is still a controversial issue in theory and judicial practice. In the Ma Mou case, Ma Mou carries the password box which is kept on his behalf and escapes, and subjectively wants to illegally possess the money in the password box, because the reason other than will does not succeed, at this time constitutes the larceny or the embezzlement, it is debatable; in Zheng Mou, In the case of theft by Wang, it is also controversial whether the two will steal and illegally resell gasoline in exchange for duty embezzlement or theft. According to some scholars, the whole alkali-sealing substance and the alkali-enclosing substance are objects with different possession rights and should be treated differently. The trustor's behavior of sealing and locking the property has in fact blocked the trustee's possession of the property in the box, and the principal still dominates and controls the property in the box. Therefore, there is no doubt that the crime of embezzlement is established for the behavior of illegal possession of the whole packing box, and the crime of theft should be regarded as the behavior of the perpetrator illegally possessing the property in the box. However, other scholars have different views. They think that the packing box and its internal property have the identity of attribution, and the trustee's possession of the packing box is an indivisible whole. The principal's lock on the property still does not stop the trustee from de facto possession. Therefore, the whole package and its internal property of illegal embezzlement are established as embezzlement crime. Some scholars in our country have also studied this problem, but up to now, the depth of theoretical research remains mostly at the theoretical level of various theories. In judicial practice, the solution to the case of illegal possession of sealed things has not formed a unified understanding and regulation. In this paper, the concept of sealed thing, the theory of illegal possession of sealed thing, the possession and confirmation of possession in criminal law will be analyzed. Because the illegal acquisition of sealed objects and their internal property is different from other general violations of property rights, it has its own particularity in the object and means of behavior. There are two different views in the theoretical circle on the crime of illegal possession of sealed things, one is that the crime of theft is established, and the other is the crime of establishing embezzlement. The fundamental reason for this difference lies in the different understanding of the ownership of the property inside the seal. If the whole sealed thing is in the possession of the trustee, then the behavior of the trustee is established as a crime of embezzlement, and if the inner property of the sealed thing is found to be in the possession of the principal, then the act of the trustee is established as a crime of theft. As for the whole of sealed things and who owns the contents, the academic circles mainly have the view of principal possession, trustee possession theory, difference possession theory and so on. In this paper, we should insist on the viewpoint of distinguishing possession on the issue of ownership of sealed things, because no matter the meaning of possession in criminal law, the relationship between sealed things and their contents, or the understanding of general social concepts, The theory of differentiated possession is the most reasonable. But from the concrete judicial practice, also is according to the distinction possession theory to determine the illegal possession sealed thing behavior.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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