盗用财物若干问题研究

发布时间：2019-01-03 12:28

【摘要】：盗用是指意图一时使用并具有返还意思,非法使用他人财物的行为。社会整体经济水平不断提高,人类拥有财产的价值也不断攀升,汽车、直升机等使用价值巨大的财产已经走进普通人的生活。然而,犯罪手段也趋于多样化,盗开汽车、盗用船舶、盗用耕牛、盗用房屋、盗用计算机运算能力等盗用行为层出不穷。公民财物价值不断增高,财物的使用权也越来越值得刑法保护,加之盗用行为日渐增多,部分盗用行为已经严重侵害到了公民的财产权益,已然具有了相当的可罚性。为了严谨的定性盗用行为,合理的处罚部分盗用行为,全面的保护财产权益,盗用行为应到得到新的定性。在日本,为了处罚部分盗用行为,日本学者试图通过解释非法占有目的方法,将部分盗用行为硬性解释为具有非法占有目的,从而导致了不断扩大解释非法占有目的。此外,一开始日本法院通过判断盗用人有无返还意思,进而来认定该盗用行为是否需要科以刑罚,而后来,随着进一步扩大处罚盗用的需要,即使盗用人在转移财物时具有返还意思,法院为了处罚该盗用行为,也会判定为具有非法占有目的。这就说明,为了达到惩处部分盗用的目的,日本法院走在一条扩大解释甚至是模糊非法占有目的的道路上。很明显,在处罚部分盗用行为的论证方法上,解释非法占有目的的方法不仅是对非法占有目的的扩大解释,更进一步模糊了盗用行为与盗窃的界限,使法院可以随意认定盗用可罚。通过对比分析的方法可知,我国对于盗用行为性质的认定,也在走与日本相同的道路。我国通说也认为盗窃罪主观上需要非法占有目的这一要件。同样,面对已然具有了相当可罚性的部分盗用行为,学者们也试图通过解释非法占有目的的方法去扩大盗窃罪的处罚范围,从而将部分盗用行为规制为盗窃罪。而这种方法存在很大的缺陷,首先是同样会导致扩大解释非法占有目的,其次会导致对部分可罚的盗用行为的量刑偏重,最后是这种解释的方法并不能周延的处罚可罚的盗用行为。我国刑法对于盗用行为没有详细的规制,司法解释只处罚少数的盗开汽车行为,司法解释也没有解决这些缺陷。分析现有司法解释对盗用行为的定性可知,司法解释处罚面过窄,仅对盗用机动车的行为进行处罚,导致司法解释处罚盗用行为具有局限性。面对形形色色的盗用行为,仅通过解释非法占有目的方法已经不能满足处罚盗用的需要。为了解决解释非法占有目的的方法的不足,对比分析中外刑法中对盗用行为的规定,在此基础上,初步提出盗用罪的立法建议。盗用行为应当单独入罪,就可以解决现有法律框架内对盗用行为定性处罚的缺陷。盗用罪,是指具有返还意图,非法使用公私财物,数额较大或者盗用特殊财物、多次盗用的行为。并且创新地阐述了盗用罪的法条设计,为盗用行为单独入罪提供了理论依据。
[Abstract]:Embezzlement refers to the act of illegally using other people's property with intent to use it temporarily and with the intention of returning it. The overall economic level of the society continues to improve, and the value of property owned by human beings is also rising. The property of huge use value such as automobiles and helicopters has entered the life of ordinary people. However, the criminal means also tend to be diversified, such as theft of cars, theft of ships, theft of cattle, theft of houses, embezzlement of computer computing ability, and so on. The value of civil property is increasing, the right to use property is more and more worthy of criminal law protection, coupled with the increasing acts of embezzlement, some embezzlement has seriously infringed upon the property rights and interests of citizens, and has already had a considerable degree of punishment. In order to strictly define embezzlement, punish part of embezzlement reasonably and protect property rights and interests comprehensively, embezzlement should be given new characterization. In Japan, in order to punish part of the embezzlement, Japanese scholars try to explain the purpose of illegal possession by explaining the method of illegal possession, and interpret part of the embezzlement as having the purpose of illegal possession, which leads to the continuous expansion of the interpretation of the purpose of illegal possession. In addition, at first, the Japanese court decided whether the embezzlement would require punishment by judging whether the embezzler had the intention of returning it or not, but later, as the need for punishment for embezzlement was further expanded, Even if the embezzler has the intention of returning the property, the court will decide that it has the purpose of illegal possession in order to punish the embezzlement. This shows that, in order to punish part of the embezzlement, the Japanese courts are on the road of expanding interpretation and even blurring the purpose of illegal possession. It is clear that the method of explaining the purpose of illegal possession is not only an expansion of the interpretation of the purpose of illegal possession, but also a further blurring of the boundary between embezzlement and theft in the argumentation of punishment for part of embezzlement. Make it possible for the court to decide that embezzlement is punishable. Through comparison and analysis, we can see that our country is following the same road as Japan in determining the nature of embezzlement. The general theory of our country also thinks that the crime of larceny needs the purpose of illegal possession subjectively. Similarly, in the face of the already quite punishable part of embezzlement, scholars also try to expand the scope of punishment of theft by explaining the purpose of illegal possession, so as to regulate part of embezzlement as theft. But this method has the very big flaw, first will also lead to the expansion of the interpretation of illegal possession purposes, and then will lead to a part of the penalty for misappropriation, Finally, this method of interpretation does not provide a comprehensive penalty for punishable embezzlement. The criminal law of our country has no detailed regulation on embezzlement, judicial interpretation only penalizes a few car theft, and judicial interpretation does not solve these defects. By analyzing the nature of the existing judicial interpretation of embezzlement, we can see that the punishment of judicial interpretation is too narrow, and only the act of embezzlement of motor vehicles is punished, which leads to the limitation of judicial interpretation of punishment for embezzlement. In the face of all kinds of embezzlement, only by explaining the purpose of illegal possession can not meet the need of punishment for embezzlement. In order to solve the deficiency of the method of explaining the purpose of illegal possession, this paper contrasts and analyzes the provisions of embezzlement in Chinese and foreign criminal law, on the basis of which, it puts forward the legislative suggestions on the crime of embezzlement. Embezzlement should be criminalized separately, which can solve the defects of the qualitative punishment of embezzlement within the existing legal framework. The crime of embezzlement refers to the act of having the intention of returning, illegally using public and private property, large amount or embezzling special property and embezzling many times. And innovatively elaborated the embezzlement crime law design, has provided the theory basis for the embezzlement behavior separately criminalizes.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.35

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