亲属间侵犯财产行为的刑法规制
发布时间：2018-12-16 03:01
【摘要】：本文所指的亲属间侵犯财产行为，特指发生在刑法规定的亲属之间，符合刑法分则侵犯财产罪个罪的类型化行为构成要件、且至少表象的具有违法性侵犯的行为。在我国的不同司法解释中，对发生在特定亲属间的盗窃罪等四种类型财产犯罪的侵犯财产行为规定了与普通财产犯罪行为相比不同的处置方式。但是，就我国现行有关亲属间侵犯财产行为的立法规定以及理论研究来看，仍然具有一定的不完备之处，因此对亲属间侵犯财产行为的研究依然具有一定的积极意义。 本文首先参照有关理论和实践的做法以近亲属和家庭成员概念着手对亲属关系的范围进行了确定。我国法律体系中对亲属间侵犯财产行为在法律效果上并无从重处理的规定，，而在从宽处理方面则在实体和程序上均作出了较为具体的规定。在对亲属间侵犯财产行为出罪或从宽处理的理论根据上，本文参照大陆法系有关观点，从解释论、比较分析、司法实践三个角度对我国现有的理论学说进行了探讨，得出了以亲情关系及家庭自治为核心的刑事政策作为解释亲属间侵犯财产行为出罪或从宽处罚的唯一类型化实质依据的结论。 关于亲属间侵犯财产行为刑罚规则的具体适用,本文认为：在亲属关系的认识必要性问题和认识错误问题上，应立足于违法性和责任性判断，判断的关键在于身份关系的有无本身；实践中若亲属关系发生了变化，应着眼于行为或结果发生时的身份关系，以决定能否直接适用有关司法解释；如若行为人的一个侵财行为，造成了多个刑法意义下被害人的损害，然而行为人仅与一个或部分被害人具有法定亲属关系的情况,应该特别注意法益保护的范围，若行为人损害了亲属之外的其他人的财产权利，则不能按照相关司法解释直接作出罪或从宽处理；对亲属与非亲属的共同侵财行为，依照共犯从属说的立场，针对非亲属共犯违法性减少的情况，应当在相关条文规定中明确非亲属共犯不适用亲属关系从宽处理条款。 目前，在我国对亲属间侵犯财产行为的法律规制中仍然存在着调整范围不足、条文定性错误、规范性文件之间不协调等现象，本文基于理论分析和实践中的做法，结合我国的国情、社情，在充分借鉴了古代法和域外法的优秀经验并参照了他人的学术研究后，分别作出了将部分司法解释上升为刑法条文、扩大罪名和亲属关系适用范围以及对部分与刑法体系不协调的司法解释规定进行适当修改等立法建议。
[Abstract]:The behavior of infringing property among relatives referred to in this article refers to the behavior that occurs between relatives stipulated in the criminal law, which accords with the constitutive requirements of the classification of the crime of infringing property according to the special provisions of the criminal law, and at least appears to be an act of illegal sexual assault. In different judicial interpretations of our country, four types of property crimes, such as theft among specific relatives, are dealt with in different ways compared with ordinary property crimes. However, there are still some imperfections in the current legislation and theoretical research on the property infringement between relatives in China, so the research on the property infringement among relatives is still of certain positive significance. In this paper, the scope of kinship is determined with the concepts of near relatives and family members according to the theory and practice. In the legal system of our country, there is no stipulation on the legal effect of the infringement of property between relatives, but in the aspect of leniency, both the entity and the procedure are specified. On the theoretical basis of offending or leniently dealing with the crime of infringing property among relatives, this article, referring to the relevant viewpoints of the civil law system, discusses the existing theories of our country from the three angles of interpretation, comparative analysis and judicial practice. This paper draws a conclusion that the criminal policy based on kinship relationship and family autonomy is the only substantial basis for explaining the crime of infringing property among relatives or lenient punishment. With regard to the specific application of the penalty rules for the infringement of property among relatives, this paper holds that the judgment of illegality and responsibility should be based on the problems of the necessity of understanding the kinship and the problem of misunderstanding. The key to judge lies in the existence or not of the identity relationship; In practice, if the kinship has changed, we should focus on the identity relationship when the behavior or result occurs in order to decide whether the judicial interpretation can be directly applied. If the perpetrator's one act of invading property causes damage to the victim in the sense of multiple criminal laws, however, if the actor has only one or part of the victim's legal kinship, he should pay special attention to the scope of legal interest protection. If the perpetrator damages the property rights of other persons other than relatives, he can not directly make the crime or leniency according to the relevant judicial interpretation; In view of the reduction of the illegality of non-relative accomplices, it should be made clear in the relevant provisions that kinship leniency clauses should not be applied to non-relative accomplices according to the position of complicity of accomplices in the joint invasion of property between relatives and non-relatives. At present, there are still some phenomena in the legal regulation of property infringement among relatives in our country, such as insufficient adjustment scope, incorrect qualitative provisions, disharmony among normative documents, etc. This paper is based on theoretical analysis and practice. Combined with the national conditions of our country, the social situation, after drawing full reference from the excellent experience of ancient law and foreign law and referring to the academic research of others, the author has made a part of the judicial interpretation and raised the judicial interpretation to the articles of criminal law respectively. The legislative suggestions are to expand the scope of application of charges and kinship and to modify some judicial interpretation provisions which are inconsistent with the criminal law system.
【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
本文编号：2381727
[Abstract]:The behavior of infringing property among relatives referred to in this article refers to the behavior that occurs between relatives stipulated in the criminal law, which accords with the constitutive requirements of the classification of the crime of infringing property according to the special provisions of the criminal law, and at least appears to be an act of illegal sexual assault. In different judicial interpretations of our country, four types of property crimes, such as theft among specific relatives, are dealt with in different ways compared with ordinary property crimes. However, there are still some imperfections in the current legislation and theoretical research on the property infringement between relatives in China, so the research on the property infringement among relatives is still of certain positive significance. In this paper, the scope of kinship is determined with the concepts of near relatives and family members according to the theory and practice. In the legal system of our country, there is no stipulation on the legal effect of the infringement of property between relatives, but in the aspect of leniency, both the entity and the procedure are specified. On the theoretical basis of offending or leniently dealing with the crime of infringing property among relatives, this article, referring to the relevant viewpoints of the civil law system, discusses the existing theories of our country from the three angles of interpretation, comparative analysis and judicial practice. This paper draws a conclusion that the criminal policy based on kinship relationship and family autonomy is the only substantial basis for explaining the crime of infringing property among relatives or lenient punishment. With regard to the specific application of the penalty rules for the infringement of property among relatives, this paper holds that the judgment of illegality and responsibility should be based on the problems of the necessity of understanding the kinship and the problem of misunderstanding. The key to judge lies in the existence or not of the identity relationship; In practice, if the kinship has changed, we should focus on the identity relationship when the behavior or result occurs in order to decide whether the judicial interpretation can be directly applied. If the perpetrator's one act of invading property causes damage to the victim in the sense of multiple criminal laws, however, if the actor has only one or part of the victim's legal kinship, he should pay special attention to the scope of legal interest protection. If the perpetrator damages the property rights of other persons other than relatives, he can not directly make the crime or leniency according to the relevant judicial interpretation; In view of the reduction of the illegality of non-relative accomplices, it should be made clear in the relevant provisions that kinship leniency clauses should not be applied to non-relative accomplices according to the position of complicity of accomplices in the joint invasion of property between relatives and non-relatives. At present, there are still some phenomena in the legal regulation of property infringement among relatives in our country, such as insufficient adjustment scope, incorrect qualitative provisions, disharmony among normative documents, etc. This paper is based on theoretical analysis and practice. Combined with the national conditions of our country, the social situation, after drawing full reference from the excellent experience of ancient law and foreign law and referring to the academic research of others, the author has made a part of the judicial interpretation and raised the judicial interpretation to the articles of criminal law respectively. The legislative suggestions are to expand the scope of application of charges and kinship and to modify some judicial interpretation provisions which are inconsistent with the criminal law system.
【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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