论国家工作人员假借用他人财物不归还行为的定性

发布时间：2018-10-09 12:47

【摘要】：所谓国家工作人员假借用他人财物不归还行为,是指国家工作人员虚伪的(或者说是不真实的)暂时借别人的金钱、物品以及可转移占有和可通过金钱计算价值的财产性利益来使用,没有归还给别人的行为。由于行为采用合法的“借用”形式,掩盖了非法的目的;行为双方以存在口头或书面借用协议、财物未变更权属等理由抗辩,导致案件调查取证困难,给办案机关查办此类案件和适用法律问题带来了不少困难和疑惑。2007年7月8日,最高人民法院和最高人民检察院发布了《关于办理受贿刑事案件适用法律若干问题的意见》(以下简称意见),《意见》第八条为查证国家工作人员以借为名收受他人房屋、汽车等物品属于受贿行为,提供了法律依据。然而,在司法实践中,借用财物的种类、方式、手段以及辩解理由多种多样、真假难辨,《意见》第八条所列举的判断因素,并不能涵盖实践中的所在情形;其次,《意见》并没有对借用其他财物的定性问题进行明确,导致假借用财物行为在定性时仍然存在不少争议。明确国家工作人员利用职务之便为他人谋利前后,假借用他人财物不归还行为的定性,应以辩证唯物主义为指导,立足我国现有法律,对比《联合国反腐败公约》的规定,结合社会实情和司法实践,以法学研究方法为工具,总结假借用行为的概念、特征以及类型,采用举例说明的方法,对假借用财物不归还行为可能涉及的无罪、诈骗罪、侵占罪、敲诈勒索罪、受贿罪的定性之争进行成因评析,对假借用财物不归还行为实质上侵害的客体、客观方面、主体、主观方面进行剖析,从而证实国家工作人员假借用他人财物不归还的行为应属于受贿行为。在给行为定性时,首先,应当查清和准确判断借用行为的真“假”,应当透过现象看本质,在查清行为人的真实动机和目的的基础上,对行为所侵害的客体进行实质性判断;其次,要明确财物的范围不仅包括房屋、汽车等物品,还应当包括货币、动产、不动产以及可计算具体价值和转移占有的财产性利益;再次,要明确国家工作人员假借用他人财物不归还行为,实质上侵犯的是国家工作人员职务行为的不可收买性,符合受贿罪的犯罪构成,应以受贿罪定性。
[Abstract]:The so-called act of not returning the property of another person by a state functionary means that a state functionary is a hypocritical (or untrue) person who temporarily borrows money from another person. The act of using goods and property that can be transferred and valued by money without being returned to others. Since the act is in the form of a lawful "borrowing", which conceals the illegal purpose, the parties to the act defend themselves on the grounds of the existence of an oral or written loan agreement and the fact that the property has not changed its ownership, resulting in difficulties in the investigation and collection of evidence in the case. Many difficulties and doubts have been brought to the investigation and handling of such cases and the application of the law by the case-handling organs. On 8 July 2007, The Supreme people's Court and the Supreme people's Procuratorate have issued the opinions on certain issues concerning the Law applicable to handling Criminal cases of bribery (hereinafter referred to as opinions). Automobile and other articles belong to the act of bribery, which provides the legal basis. However, in the judicial practice, the types, methods, means and justifications of the borrowed property are various, the truth and falsehood are difficult to distinguish, and the judgment factors listed in Article 8 of the opinion can not cover the situation in practice; Secondly, opinion does not make clear the qualitative problem of borrowing other property, which leads to a lot of disputes about the nature of the behavior of false loan and use of property. It is clear that the nature of the act of false borrowing of other people's property and non-return of property before and after the use of office by state functionaries should be guided by dialectical materialism, based on the existing laws of our country, and in contrast with the provisions of the UN Convention against Corruption, Combining with the social reality and judicial practice, taking the legal research method as the tool, summarizes the concept, the characteristic and the type of the false loan behavior, uses the method of illustrative explanation, the crime of innocence and fraud that may be involved in the act of not returning the property with false loan. The causes of the dispute over the crime of embezzlement, extortion and bribery are analyzed, and the object, objective aspect, subject and subjective aspect of the act of not returning property with false loan are analyzed. Therefore, it is proved that the act of false loan and non-return of other's property by state functionary should be regarded as an act of bribery. In the characterization of behavior, firstly, we should find out and accurately judge the true "false" of the borrowing behavior, look at the essence through the phenomenon, and make a substantive judgment on the object infringed by the act on the basis of ascertaining the real motive and purpose of the actor. Secondly, it should be clear that the scope of property not only includes houses, cars and other items, but also includes currency, movable property, immovable property and property interests that can be calculated and transferred into possession. It is necessary to make clear that the behavior of state functionaries who do not return their property by using other people's property is in essence an infringement of the non-acquisitive nature of the duties of state functionaries, which conforms to the constitution of the crime of accepting bribes, and should be characterized as the crime of accepting bribes.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.3

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