论侵占罪中“代为保管的他人财物”

发布时间：2018-06-12 23:25

本文选题：侵占罪 + 代为保管　；参考：《南京师范大学》2017年硕士论文

【摘要】：我国1997年《刑法》第270条规定,侵占罪的对象包括代为保管的他人财物、遗忘物和埋藏物。由于该法条表述较为简单,且与民法制度具有天然的紧密联系,刑法理论界对侵占罪的认识和理解一直存在很多争议,司法上也出现了适用混乱现象。针对于此,本文以现有理论成果为依托,以“代为保管的他人财物”为研究对象,通过对侵占罪的理论构成和实务中的疑难问题的探讨,认为“代为保管的他人财物”具有广阔的解释空间,可涵盖侵占罪的所有犯罪对象。首先,“代为保管”是一种行为人基于一定的原因保管他人财物的状态,并不限于委托信任关系。这种原因既可以是法律上的,也可以是事实上的。其次,在一些特殊情形下侵占罪和盗窃罪往往难以区分,如辅助占有问题和侵吞存款问题。“代为保管”的认定是两罪区分的关键因素,因为“代为保管”的表述比“占有”的表述更能明确反映侵占罪的本质和保护法益。再次,侵占罪由于其犯罪性质以及犯罪手段的特殊性,极易和民法发生交叉、牵连关系。民法上的不当得利与无因管理皆可成为侵占行为的依据,不法原因给付则应区分为不法原因委托和狭义上的不法原因给付,前者因侵占罪的犯罪对象不限于合法财物且所有权未转移,可以构成侵占罪;后者因财物所有权已发生事实意义上的转移而不能构成侵占罪。最后,“代为保管的他人财物”可以涵盖“遗忘物”和“埋藏物”,《刑法》第270条第2款是第1款的注意性规定,二者并非并列关系。
[Abstract]:Article 270 of the Criminal Law of 1997 stipulates that the object of the crime of embezzlement includes the property of others, forgotten objects and buried objects which are kept on behalf of others. Because the expression of this article is relatively simple and has a natural close relation with the civil law system, there have been many disputes about the understanding and understanding of the crime of embezzlement in the theoretical circle of criminal law, and there has also been a phenomenon of confusion in judicial application. In view of this, based on the existing theoretical results, this paper takes "other people's property in custody on behalf" as the research object, through the discussion of the theoretical composition and the difficult problems in the practice of the crime of embezzlement. It is considered that "other persons' property in custody" has broad interpretation space and can cover all the criminal objects of the crime of embezzlement. Firstly, "custody on behalf" is a state in which the perpetrator keeps other people's property for certain reasons, and is not limited to the trust relationship. This can be both de jure and de facto. Secondly, it is difficult to distinguish the crime of embezzlement from the crime of theft under some special circumstances, such as the problem of auxiliary possession and the problem of embezzlement. The identification of "custody on behalf" is the key factor in the distinction between the two crimes, because the expression of "custody on behalf" can clearly reflect the essence of the crime of embezzlement and the interests of the law of protection than the expression of "possession". Thirdly, the crime of embezzlement is easy to cross and implicate with civil law because of its criminal nature and the particularity of criminal means. The improper enrichment and non-cause management in civil law can become the basis of encroachment. The illegal reason pay should be divided into the illegal reason entrustment and the narrow sense illegal reason pay. The former is not limited to the object of the crime of embezzlement and the ownership is not transferred, the latter can not constitute the crime of embezzlement because the ownership of the property has been transferred in the sense of fact. Finally, "other people's property in custody" can cover "forgotten objects" and "buried objects". Article 270, paragraph 2, of the Criminal Law is the attention requirement of paragraph 1, which is not a parallel relationship.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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