论赃物转化的民刑二维观

Two-dimensional View of Civil and Criminal Law to Booty Transformation

赃物被添附、被善意取得、被时效取得等赃物转化问题借用了民法理论,必须采用民刑二维视角。赃物被添附的,犯罪行为人所实施的添附为恶意添附,不能获得添附物的所有权。受让人明知添附物包含赃物而接受的,可能构成犯罪。善意取得人可以取得赃物所有权,即使其事后知悉该物为赃物,也有权继续占有,但在上游犯罪查证前不得出让该物。从善意取得人处受让该"赃物"的人,如明知该物为上上游犯罪行为所得,可能构成犯罪。赃物被时效取得的,并不意味着无刑事责任。只有犯罪行为人占有该赃物既达到取得时效期间又达到追诉时效期间的,才无犯罪问题。如仅达到取得时效期间而未达到追诉时效期间,犯罪行为仍需追究,该物属赃物,应由国家收缴。此情形下,若受让人明知该物为赃物而接受的,不能取得所有权,可能构成犯罪。

Booty transformation such as being appended, acquired in good faith or usucapio are interpreted in terms of the theory of civil law.We must adopt a two-dimensional perspective of civil and criminal to study it.When booty is appended by the perpetrator, it is malicious.The perpetrator can not acquire ownership of accretion mat-ter.If the transferee knows that accretion comprises booty, he may constitute a crime.People in good faith can get the ownership of booty.Even if he knows the matter is booty subsequently, he has the right to continue to occupy. But before the predicate offense is verified, he can not sell the property.People who got the booty from the people in good faith may constitute a crime if he had known the property was the proceeds of crime.Usucapio does not mean that booty has little criminal liability.Only getting to meet the acquisitive prescription and limitation of prose-cution, no crime will be considered.If it only reached acquisitive prescription but did not reach the limitation of prosecution, the matter should be confiscated by the state.If the assignee knows that the property is booty, it may constitute a crime of stolen goods.