民法占有与刑法占有的比较研究

A Comparative Study of the Civil and Criminal Possession

占有是《物权法》所明确规定的制度,刑法中并没有规定占有,但是占有又是划分罪与非罪,此罪与彼罪的重要依据。目前对于刑法上占有问题的研究绝大数是将民法的占有与刑法的占有截然对立起来,认为两者有根本的不同,或者只沉浸在部门法领域中,孤立地考虑占有的问题。从维护法秩序统一性的角度出发,对比民法与刑法在占有的保护目的、构成要件以及对象上的异同,有利于消除立法和司法对于民法占有和刑法占有之间的误解。

The system of possession has been clearly defined by Property Law, Criminal Law does not require the possession, but the possession is an important basis which not only for dividing crime and non-crime, but also for distinguishing this crime and that crime. At present, the vast majority of study in this problem is contrasting the possession between the civil law and the criminal law, arguing the two are fundamentally different, or just indulging themselves in the department of their own law and considering the possession issues dissolutely. In this paper, we will eliminate misunderstanding between the legislative and judicial civil law on the issue of possession from the perspective of maintaining the unity of the legal order, and then use the method of comparing to make it clearer for civil and criminal possession by contrasting civil law and criminal law on the similarities and differences among the purpose of protection, components and objects.