第三人从死亡现场取财构成何罪──不侵犯现实占有的取财行为能否构成盗窃

Constitution of Crime of the Third Party Taking Money from the Scene of Death

无关的第三人从死者身上或身边取财,侵犯了继承人的财产所有权,构成盗窃罪。对此,不能以取财行为"不侵犯占有"为由排斥定盗窃罪。因为盗窃罪不只保护占有,不被权利人现实占有的财物也能成为盗窃罪的侵害对象,盗窃罪法益首先是所有权及其他本权、其次才是占有。另外,由于我国立法规定,侵占罪以"拒不交出"为要件、"告诉的才处理",基本堵塞了追究侵占罪的可能性,为此不宜对侵占罪作扩大解释;并且,该类案件也不具备侵占罪的该当性。

Taking property from a dead person or beside of it by the unrelated third person violates the property of inheritors and constitute larceny. In this case, conviction of larceny should not be excluded for the seemly no violation of possession. Because larceny protects not only a person’s possession, but also the objects belonging to the person. Legal rights of larceny firstly refer to the right of property and other rights followed by possession. In addition, according to the lawmaking provision of our country, 'refusing to hand over' is the essentials of encroachment and 'a case chargeable only upon complaint', which blocks the assigning possibility of embezzlement. So it is not appropriate to explain the embezzlement further and this kind of case is also devoid of the deservedness of embezzlement.