犯罪所得物的替代物赃物性质的丧失

Losing of the Booty Quality of the Substitute Article to Property Accepted by Crimes

各国刑事立法、判例和刑法理论关于犯罪所得物的替代物的赃物性质有不同立场,主要有肯定说、否定说、中间说。肯定说完全肯定犯罪所得物的替代物的赃物性质,使本罪处罚范围过于扩大。与此相反,否定说则完全否定犯罪所得物的替代物的赃物性质,使处罚范围过于缩小。中间说则部分肯定部分否定犯罪所得物的替代物的赃物性质。从法益保护思想出发,应当以是否丧失同一性为标准进行判断。犯罪所得物的替代物一般地失去同一性,因此丧失赃物性质。但是,在特殊情况下,由于犯罪所得物保持了物的同一性而保有赃物性质。

There are different attitudes about the booty quality of substitute articles to property accepted by crimes in criminal legislation, precedent and theory of criminal law in every countries of the world, such as positive theory, negative theory and middle theory. The positive theory completely approves the booty quality of the substitute articles of things accepted by crimes, and consequently the punishable range is expanded boundlessly. On the contrary, the punishment scope is excessively limited, because the negative theory defies the booty quality of the substitute article of property gotten by crimes. The middle theory affirms partially and disapproves partly it. From the idea of profits protecting, the standard must be confirmed that whether or not the identity is lost. Generally the substitute article will lose the identity with the things gotten by crimes, so the booty quality will disappear. In occasions only if the substitute article holds the identity with the property accepted by crimes, the booty quality will be preserved.