代为保管问题研究

Research on Property Custody

代为保管是指非财物所有人基于一定的原因而处于自己事实上控制着的他人财物进行保管的行为。它有以下几个特点:第一,保管人对保管物没有所有权;第二,按所有权圆满性的要求,保管人对物有妥善保管的义务;第三,按所有权绝对性和排他性的要求,保管人有返还保管物于合法权利人之义务。因而,代为保管的本质是非财物所有人基于保管和返还他人之物的义务而对他人之物处于事实上的控制状态而非仅仅是法律上的支配。对他人之物处于事实上的控制不必基于合法原因。代为保管的归宿是保管人对返还处于其事实上控制的他人之物的义务具有民事义务和刑事义务的双重属性。

Property custody, an act of a non-owner’s de facto possession of another person’s property on some account, is characterized by the following points: first, the custodian does not enjoy ownership of the property under his custody; secondly, in line with the nature of integrity of ownership, the custodian is obliged to take good care of the property under his custody; thirdly, according to the nature of absoluteness and exclusiveness, the custodian is obliged to return the property in his custody to the legal owner. Therefore, the essence of property custody is more than legal dominance. Moreover, it is a state of de facto possession of another person’s property by the non-owner, who is bound to take custody of and return the property. The de facto possession of another person’s property is not always grounded on legal reasons. Thus, in respect to the custodian’s obligation of returning another person’s property in his de facto possession, property custody is marked by double natures, that is, civil obligation and criminal obligation.