不当得利行为能否构成侵占罪

Whether the Behavior of Getting Illegal Profit could Form Crime of Embezzlement

不当得利构成民法上的债的侵权,是一种具有非法性的民事行为。当不当得利行为人占有他人财物且数额较大拒不返还时,能否按照侵占罪追究行为人的刑事责任,这是自1997年刑法修订以来一直困扰我国司法界和法学界的一个复杂问题。实践中因不当得利而发生“侵占”的情况多种多样,拒不返还不当得利财物的现象已构成了对社会的严重危害,迫切需要对此进行刑事化剖析。本文结合民法原理和犯罪构成对不当得利行为的非法性、罪责性及学者的不同观点进行具体分析,以客观、合理地认定不当得利与侵占罪的关系。

The infringement of debt that illegal profit forms on the civil law, is an illegal civil behavior. When the party occupies others＇ property in a large number and refuses to return, can the party be called to account according to the crime of embezzlement？ This is a complicated problem that has been perplexing in the judicial circle of our country and law circles all the time since criminal law was revised in 1997. In practice, the situation varied greatly, and the refusal to return has brought serious harm to the society, which really needs to analyze this criminally. This text, combining civil law principle, constitutive elements of crime, and different views of the scholars, makes a concrete analysis, and objectively asserts the relation between illegal profit and the crime of embezzlement.