侵占罪疑难问题研究

侵占罪是易占有为不法所有的行为。对于侵占罪的成立 ,确认占有事实是否存在比判断占有性质是否合法更为重要。侵占罪的犯罪对象包括代为保管的他人财物、遗忘物、埋藏物 ;侵占包装物、不法委托物应当以侵占罪论 ;委托关系并不存在 ,但误认为存在并占有他人财物的 ,构成侵占遗忘物的犯罪 ;对遗忘物应当作扩大解释 ,它和遗失物之间不可能也无必要加以区分。非法占为己有和拒不退还、拒不交出之间具有包容和相互证明的关系 ,为正确认定侵占罪 ,应当合理确定拒不退还。

The crime of misappropriation is an act of turning a holding into an illegal possession. For the determination of the crime of misappropriation, the affirmation of the fact of possession is more important than the determination of lawfulness of the possession. The objects of the crime of misappropriation include property in commendation or property forgotten or buried by another person. Each of these objects has its unique connotation. The act of taking possession of package or unlawfully consigned goods shall constitute the crime of misappropriation; the act of taking possession of another's property which is mistakenly believed to be under one's custody shall constitute the crime of misappropriation of forgotten property. The term 'forgotten property' shall be construed broadly and it is neither possible nor necessary to distinguish between 'forgotten property' and buried property. There is an inclusive and mutual proofing relationship between illegal possession of the property and the time of refusal to return the property. In order to correctly determine the crime of misappropriation, it is necessary to determine a reasonable deadline for the refusal to return the illegally possessed property.