试论刑法上的占有

On the Possession in Criminal Law

文章研究刑法上占有的性质、意思、事实、标准与合法性等问题,并指出刑法与民法上占有的区别,不在于是否承认观念上的占有,刑法也呈现越来越明显的观念化趋势,而在于刑法与民法在责任价值上的差异,民法通过占有奠定起诉权基础,而刑法界定占有以保护财产秩序。刑法上占有标准的界定,应当引入其他法律制度中的优势证据标准进行具体分析,从而为界定罪与非罪、此罪彼罪提供依据。

This paper discusses on the nature, meaning, fact, criterion and legality of possession in criminal law, and points out that the differences of possession in criminal law and in civil law are not merely a matter of conceptual possession, because it is increasingly clear that possession in criminal law is becoming conceptual- ized, but different in responsibility and in value in the two above - mentioned laws. The demarcation of possession in civil law provides basis for later prosecution, but in criminal law, it means the protection of property and maintenance of social order. The sense of possession in the civil law should introduce the evidence standard in some other legal systems to set clear demarcations between different crimes, and between crime and non - crime.