背信行为的刑法规制问题研究

发布时间：2018-07-18 09:13

【摘要】：随着市场经济的发展，经济水平不断提高的同时，社会分工也逐渐变得精细化、专业化。越来越多的企业和个人成为市场经济的主体，，参与到经济活动中来，然而对于一些特殊的、专业性较强的经济活动，多数参与者无法自己完成，因此他们多会将此类经济活动授权给一些具备专业知识和技能的个人完成，或者将事务委托给具备专业资质的机构。利益的驱使有时会使这些被授权或者被委托的机构和个人在处理他人事务时违背其所应负的诚信义务，背信行为也就随之而来，并且其表现形式也呈现出多样化和新型化的趋势。虽然在我国刑法中，与背信相关的罪名已经渐渐有所体现，但至今仍没有普通背信罪的相关规定，现有的几个特殊背信罪在行为主体与行为模式的规定上又较为局限，导致在实际运用过程中也存在一些缺陷和漏洞。文章建议在完善特殊背信罪的基础上，在我国刑法分则中增设普通背信罪，这样既可以使法益保护的漏洞得以弥补，同时也是对我国刑事立法完善的促进。这篇文章共分为四个部分：第一部分为背信行为的界定。自刑事立法上单独规定了背信罪以来，关于背信行为含义的理解差异就一直存在，而对于背信行为的本质也存在学说之争。通过对有关背信行为本质的五种主流学说进行详细解读，文章对背信行为作出相对合理的界定：背信行为是指行为人违背与本人之间的内部信任关系，在代为处理本人财产性事务的过程当中，没有维护本人的最大利益，导致本人财产遭受损失的行为。在此基础之上，文章归纳出背信行为的三大基本特征：第一，背信行为人是“为他人处理事务的人”；第二，背信行为违背的是“内部信任关系”；第三，背信行为通常涉及较大的财产利益。第二部分为背信行为刑法规制的域外考察。文章的第一部分将背信行为分为普通背信行为与特殊背信行为两个类型。对于普通背信行为，在世界刑法史上，发展至今也只有少数一些国家对其作出了规定，最为典型的是德国的背信罪与日本的背任罪。德国刑法典将背信罪构成要件分成“滥权构成要件”与“背托构成要件”两个类型：滥权构成要件中的“滥用权限”是指行为人，也就是权限的享有人，在行使权限时违反了法律规定或违背了该权限的宗旨，从而导致财产利益享有人遭受损害的行为；背托构成要件的核心在于行为人对照料义务的违反。日本背任罪的立法借鉴了德国立法的相关内容，但也不缺乏自己的特点，比如说对行为人主观目的的要求就明显区别与德国背信罪。对于特殊背信行为，有的国家在刑法分则中对其作出了规定，有的国家则在附属刑法中作出相应的规定。第三部分为我国背信行为刑法规制的现状与不足。关于背信行为的规定，各国刑法都存在或多或少的差异，但基本的行为模式是固定的，即为他人处理事务的人，明知自己的行为是违背任务或信任的行为而故意为之，从而导致他人财产遭受损失。并且，由于背信行为的本质始终是对行为人与本人之间的内部信任关系的违反，因此，笔者认为目前我国刑法分则中仅存在徇私舞弊低价折股、出售国有资产罪，背信损害上市公司利益罪、背信运用受托财产罪、违法运用资金罪以及为了规制“老鼠仓”行为而增加的利用未公开信息交易罪，共五个特殊背信罪。但是，目前我国刑法对背信行为的规制明显存在缺陷：首先，缺乏对普通背信行为的规制；其次，五个特殊背信罪行为主体与行为模式的设定存在局限性；最后，我国刑法针对背信行为采取的立法模式为列举式，这种方式必然会使刑法典变得臃肿，并且以列举的方式不断增加特殊背信罪，也会破坏分则条款之间的条理性。第四部分为我国背信行为刑法规制的完善建言。由于背信行为具有严重的社会危害性与充分的刑事可罚性，而我国刑法对背信行为的规制却仍然存在漏洞，因此文章建议，在对现有的特殊背信罪的构成要件作出适当调整的基础上，以刑法修正案的方式在我国刑法分则中增设普通“背信罪”以弥补刑法法益保护的漏洞，并参考域外立法，对我国背信罪的罪状与刑罚的设置提出合理的构想。
[Abstract]:With the development of the market economy and the continuous improvement of the economic level, the social division of labor has gradually become fine and professional. More and more enterprises and individuals have become the main body of the market economy and participate in the economic activities. However, for some special and professional economic activities, most of the participants can not accomplish it by themselves. Therefore, he is not able to accomplish it by the majority of the participants. They are more likely to authorize such economic activities to be accomplished by individuals with professional knowledge and skills, or to entrust a transaction to an institution with professional qualifications. There is a trend of diversification and new type of expression in its form of expression. Although in our criminal law, the crimes related to the breach of trust have been gradually embodied, but there are still no relevant provisions on the crime of general breach of trust, and some of the existing special crimes of breach of trust are more limited in the rules of the behavior subject and the pattern, which leads to the reality. There are also some defects and loopholes in the process of application. The article suggests that on the basis of the crime of special trust, the crime of general breach of trust should be added to the criminal law of China, which can make up the loopholes of legal protection and promote the perfection of criminal legislation in our country.
This article is divided into four parts:
The first part is the definition of the act of breach of trust. Since the criminal legislation alone stipulates the crime of breach of trust, the difference in understanding of the meaning of the act of betrayal has always existed, and there is a dispute about the essence of the act of betrayal. Through the detailed interpretation of the five mainstream doctrines about the nature of the breach of trust, the article makes a relative contrast to the behavior of the breach of trust. Reasonable definition: the act of betrayal refers to the behavior that the actor violates the internal trust between himself and himself. In the process of dealing with the property of the person, it does not maintain my greatest interests and leads to the loss of his property. On this basis, the article sums up the three basic characteristics of the breach of faith: first, the breach of faith. The perpetrator is "the person dealing with the affairs of others"; second, the breach of trust is "internal trust"; and third, the act of betrayal usually involves greater property interests.
The second part is the extraterritorial investigation of the criminal law regulation of the breach of trust. The first part of the article divides the breach of trust into two types of common breach and special breach. In the history of the world criminal law, only a few countries have made provisions in the history of the world criminal law, the most typical of which is the crime and day of Germany's breach of trust. In the criminal code of Germany, the German Criminal Code divides the constitutive requirements of the crime of breach of trust into two types: "the constitutive requirements of indiscriminate rights" and "the constitutive requirements of the back": the "abuse of authority" in the elements of the indiscriminate rights refers to the perpetrator, that is, the enjoyment of the authority, and violates the purpose of the law or violation of the authority in the exercise of its authority, thus leading to the wealth of the property. The core of the constitutive requirement of the back is the breach of the duty of care by the actor. The legislation of the Japanese back crime draws on the relevant contents of the German legislation, but does not lack the characteristics of its own. For example, the requirement of the subjective purpose of the actor is clearly distinguished from the crime of betrayal in Germany. As a result, some countries do it in the penal code
Out of the regulations, some countries make corresponding provisions in the subsidiary criminal law.
The third part is the current situation and deficiency of the criminal law regulation of the breach of trust in our country. There are more or less differences in the criminal law of all countries, but the basic behavior pattern is fixed, that is, the person who is dealing with the affairs of others, knowing that his behavior is deliberately contrary to the task or the act of the letter and thus leads to the property of others. In addition, because the nature of the act of betrayal is always a violation of the internal trust relationship between the actor and the person, the author thinks that there is only a low price discount for favoritism, the sale of state-owned assets, the crime of damaging the profits of the listed company, the crime of using the entrusted property, the crime of illegal use of funds, and the crime of illegal use of funds. As well as the crime of using undisclosed information to regulate the behavior of "rat barn", there are five special crimes of breach of trust. However, there are obvious defects in the regulation of the act of breach of trust in the criminal law of our country: first, the lack of regulation on the common breach of trust behavior; secondly, the limitations of the subject and behavior pattern of the five special crime of back letter are limited. In the end, the legislative pattern of our criminal law is enumerated, which will inevitably make the penal code bloated, and increase the crime of special betrayal in the way of enumerating, and it will also destroy the rules between the clauses.
The fourth part is the perfect suggestion of the criminal law regulation of the breach of trust in our country. Because of the serious social harmfulness and the sufficient criminal punishment, the regulation of our criminal law still has a loophole in the regulation of the act of breach of trust. Therefore, the article suggests that on the basis of the appropriate adjustment to the constitutive requirements of the existing special breach of trust, the article should be sentenced to punishment. In the way of the amendment of the law, the common "crime of betrayal" is added to the criminal law of China in order to make up for the loopholes in the protection of legal interests of the criminal law, and to make a reasonable conception of the charges and penalties for the crime of breach of trust in our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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