非法占有封缄物的刑法认定
发布时间：2018-08-15 17:51
【摘要】：近年来，社会上出现了较多的非法占有封缄物的现象，例如甲委托乙保管自己的上锁手提箱，但是乙却将上锁手提箱据为己有，此时乙应构成何种罪名，理论界对于此种现象的定性问题仍存在着较大的争议。争议的焦点在于对于封缄物中内容物的占有认定有不同理解，存在以下几种观点：1.委托者占有说。该说认为委托人不仅占有封缄物的整体，同时还占有封缄物中的内容物。如果受托人非法占有其中的内容物则可能构成盗窃罪。2.受托者占有说。该说认为受托人不仅占有封缄物的整体，同时也占有封缄物中的内容物。如果受托人非法占有封缄物中的内容物则可能构成侵占罪。3.区别说。该说并没有像委托者占有说和受托者占有说那样一概而论，该说认为对于封缄物的整体以及封缄物中的内容物要区分对待。对于封缄物整体而言，应由受托者占有，，如果受托者非法占有封缄物的整体则构成侵占罪；对于封缄物中的内容物而言，应由委托者占有，如果受托者非法占有封缄物中的内容物则构成盗窃罪。4.修正区别说。修正区别说与区别说相似之处在于将封缄物整体和封缄物中的内容物区别对待，不同的是对于封缄物中的内容物而言，修正区别说认为应由委托者和受托者共同占有。5.体积大小说。体积大小说认为对于封缄物中的内容物占有认定问题，主要因内容物的体积大小具体而定。封缄物中内容物的占有认定的不同理解将会导致定罪量刑的不同。 本文将主要论述以下几个问题，首先，对于封缄物含义的理解。封缄物是指经过密封、上锁的物品。封缄物不仅包括整体，还包括其中的内容物。对于密封上锁等手段需要达到一定的标准，即要阻碍第三人对物品的控制，如果仅仅是起到防止物品掉落的作用则不能称之为封缄物。其次，刑法中占有的理解。刑法中的占有不仅对物品要有事实上的支配，还要有支配意思，刑法上的占有构成要素包含主观构成要素以及客观构成要素，对物品事实上的支配是客观构成要素，对物品的支配意思是主观构成要素，主观构成要素和客观构成要素必须同时满足。再次，论述封缄物占有的不同学说，笔者对封缄物占有的相关学说提出自己的看法，认为委托者将密封的财物交由受托者保管，受托者对封缄物的整体享有占有，同时委托者将财物密封的目的就是要阻碍受托者对其中内容物的占有。因此，对于封缄物中的内容物而言，应由委托者占有。受托者占有封缄物的整体，委托者则占有封缄物中的内容物，因此区别说对于封缄物占有的理解更为合理。
[Abstract]:In recent years, there have been more phenomena of illegal possession of sealed things in society. For example, A entrusts B with keeping his own locked suitcase, but B takes the locked suitcase for his own possession. What kind of crime should B constitute at this time? There is still a great controversy in the theoretical circle about the qualitative problem of this phenomenon. The focus of the dispute is that there are different understandings of possession of contents in sealed objects, and there are several views: 1. The consignor holds the theory. This theory holds that the client not only possesses the whole of the sealed thing, but also possesses the contents of the sealed thing. If the trustee is illegally in possession of the contents, it may constitute theft. 2. The trustee has possession. The theory holds that the trustee not only holds the whole of the sealed thing, but also the contents of the sealed thing. If the trustee takes possession of the contents of the sealed thing illegally, it may constitute the crime of embezzlement. Difference theory. This theory is not as general as the theory of entrustment possession and the trustee possession theory, which thinks that the whole of the sealed thing and the contents of the sealed thing should be treated differently. As to the sealed thing as a whole, it shall be in the possession of the trustee, and if the trustee unlawfully possesses the whole of the sealed thing, it shall constitute a crime of embezzlement; for the contents of the sealed thing, it shall be in the possession of the trustee, If the trustee illegally takes possession of the contents of the sealed object, it constitutes theft. 4. Revise the distinction theory. The similarity between the revised distinction theory and the difference theory lies in the different treatment of the whole and the contents of the sealed object. The difference is that for the content in the sealed object, the revised distinction theory should be jointly owned by the entrustor and the trustee. Volume theory. The theory of volume size believes that the determination of the contents in sealed objects is mainly determined by the volume size of the contents. Different understandings of possession and determination of contents in sealed objects will lead to different conviction and sentencing. This paper will mainly discuss the following issues, first, the meaning of sealed matter understanding. A sealed object is a sealed, locked object. Sealed objects include not only the whole, but also the contents. It is necessary to reach a certain standard for sealing and locking, that is, to prevent the third party from controlling the objects, if it is only to prevent the objects from falling, it can not be called sealed objects. Secondly, the understanding of possession in criminal law. Possession in criminal law should not only have a de facto domination over goods, but also have a dominant meaning. The elements of possession in criminal law include subjective and objective elements, and the domination of objects in fact is an objective constituent element. The dominating meaning of goods is subjective elements, subjective elements and objective elements must be satisfied at the same time. Thirdly, the author discusses the different theories of sealed possession, the author puts forward his own views on the relevant theories of sealed possession, and holds that the trustee will hold the sealed property in the custody of the trustee, and the trustee will have the whole possession of the sealed thing. At the same time, the consignor seals the property in order to prevent the trustee from possessing the contents. Therefore, the contents of the sealed thing should be possessed by the entruster. The trustee holds the whole of the sealed thing, and the consignor occupies the content of the sealed thing, so it is more reasonable to understand the sealed possession.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
本文编号：2184959
[Abstract]:In recent years, there have been more phenomena of illegal possession of sealed things in society. For example, A entrusts B with keeping his own locked suitcase, but B takes the locked suitcase for his own possession. What kind of crime should B constitute at this time? There is still a great controversy in the theoretical circle about the qualitative problem of this phenomenon. The focus of the dispute is that there are different understandings of possession of contents in sealed objects, and there are several views: 1. The consignor holds the theory. This theory holds that the client not only possesses the whole of the sealed thing, but also possesses the contents of the sealed thing. If the trustee is illegally in possession of the contents, it may constitute theft. 2. The trustee has possession. The theory holds that the trustee not only holds the whole of the sealed thing, but also the contents of the sealed thing. If the trustee takes possession of the contents of the sealed thing illegally, it may constitute the crime of embezzlement. Difference theory. This theory is not as general as the theory of entrustment possession and the trustee possession theory, which thinks that the whole of the sealed thing and the contents of the sealed thing should be treated differently. As to the sealed thing as a whole, it shall be in the possession of the trustee, and if the trustee unlawfully possesses the whole of the sealed thing, it shall constitute a crime of embezzlement; for the contents of the sealed thing, it shall be in the possession of the trustee, If the trustee illegally takes possession of the contents of the sealed object, it constitutes theft. 4. Revise the distinction theory. The similarity between the revised distinction theory and the difference theory lies in the different treatment of the whole and the contents of the sealed object. The difference is that for the content in the sealed object, the revised distinction theory should be jointly owned by the entrustor and the trustee. Volume theory. The theory of volume size believes that the determination of the contents in sealed objects is mainly determined by the volume size of the contents. Different understandings of possession and determination of contents in sealed objects will lead to different conviction and sentencing. This paper will mainly discuss the following issues, first, the meaning of sealed matter understanding. A sealed object is a sealed, locked object. Sealed objects include not only the whole, but also the contents. It is necessary to reach a certain standard for sealing and locking, that is, to prevent the third party from controlling the objects, if it is only to prevent the objects from falling, it can not be called sealed objects. Secondly, the understanding of possession in criminal law. Possession in criminal law should not only have a de facto domination over goods, but also have a dominant meaning. The elements of possession in criminal law include subjective and objective elements, and the domination of objects in fact is an objective constituent element. The dominating meaning of goods is subjective elements, subjective elements and objective elements must be satisfied at the same time. Thirdly, the author discusses the different theories of sealed possession, the author puts forward his own views on the relevant theories of sealed possession, and holds that the trustee will hold the sealed property in the custody of the trustee, and the trustee will have the whole possession of the sealed thing. At the same time, the consignor seals the property in order to prevent the trustee from possessing the contents. Therefore, the contents of the sealed thing should be possessed by the entruster. The trustee holds the whole of the sealed thing, and the consignor occupies the content of the sealed thing, so it is more reasonable to understand the sealed possession.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
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