误收假币后故意使用行为的刑事责任问题初探

On Criminal Liability of Intentionally Using Counterfeit Money Received Mistakenly

误收假币后故意使用的行为具有刑事可罚性,应当以使用假币罪定罪处刑。在犯罪认定时,客观要件之中的"使用"行为不应以置于流通为必要;只要能够根据基础事实予以合理推定其主观上为"明知",就足以认定其符合本罪的主观要件。由于该行为的期待可能性较小,因此处刑时应结合我国针对误收假币后故意使用行为的立法变动情况,对于数额较大的情形原则上只判处罚金刑,而是否侵犯公私财产权这一随机客体也具有影响量刑的功能。

The act of intentionally using counterfeit money mistakenly received has criminal punishment, and should be convicted of using of counterfeit money. In determination of crime, the behavior of use in objective circumstances should not be placed in circulation as necessary. As long as the actor＇s subjective aspect could be deduced as knowing legitimately, it is enough to identify with all the subjective elements of this crime. Because of the smaller probability of anticipation, sentence for the act should be combined with our legislative changes in the crime of using counterfeit money mistakenly received. The case for a larger amount of counterfeit money should be only sentenced penalty in principle, and the random object whether public and private property rights was violated has function on sentencing.