论侵吞脱离持有物

On the embezzlement of out - of- held object

脱离持有物不是抛弃物,所有权人对之仍有所有权。尽管刑法没有明文规定遗失物等脱离持有物可以作为侵占罪之对象,但是由于侵吞上述脱离持有物仍有一定的社会危害性,而且上述脱离持有物与遗忘物、埋藏物有共同的属性,因而可以认定侵吞脱离持有物也具有刑事侵权的性质,可根据刑法第270条第1款治罪。但是依据该条款治罪虽不违背罪刑法定原则却尚显牵强,因而在刑法中应将侵吞脱离持有物的行为独设一个罪名。

As an out - of- held object is not something that has been thrown away, its possessor still has the right to possess it. Although Chinese Penal Code doesn't prescribe that, like the lost property, an out - of-held object can be regarded as the object of the crime of embezzlement, the embezzlement of such an object actually does certain harm to our society. Furthermore, the out - of- held object shares the same characteristics as the lost property and the buried property, so the out - of- held object embezzl...