不法原因给付与侵占罪

On Payment of Unlawful Cause and Embezzlement

民法中的不法原因给付制度旨在对不法给付行为进行一般预防。不法原因给付要求给付者有意识、有目的地将财产终局性地给予受领人,其导致给付者不得基于不当得利或所有物返还请求权要求受领人返还所受财产,但并不排除侵权损害赔偿请求权。若不法原因仅存在于受领人一方或排除返还请求权反而不利于实现法规范之目的,则应当对不法原因给付制度进行目的性限缩。在考察不法原因给付与侵占罪成立之关系时,须区分不法原因给付与不法原因委托。侵吞不法原因委托物的,构成侵占罪。将不法原因给付物据为己有的,原则上不构成侵占罪。但在不法原因给付仅限于对财物的使用、收益权以及须对不法原因给付制度加以目的性限缩的场合,仍有肯定侵占罪成立的余地。

In civil law, the rule of payment of unlawful cause is aimed at preventing unlawful payment generally. Unlawful payment requires payer＇s conscious, intentional and binding payment to the recipi- ent, out of unlawful cause which is realized by the payer. The rule of payment of unlawful cause makes payer unable to request recipient to return the property on unjust enrichment or proprietorship ground, but does not exclude the payer the claim for damage compensation on tort ground. If the unlawful cause can only be attributed to the recipient, or if exclusion of the right to demand the return of the property is against the purpose of rule, the rule of payment of unlawful cause should be construed limitedly accord- ingly. When considering the relationship between payment of unlawful cause and the crime of embezzle- ment, payment of unlawful cause and trust of unlawful cause should be distinguished, and whether the person constitutes illegal occupation should be determined by enjoyment of the civil rights. Misappropri- ation of property acquired by trust of unlawful cause constitutes the crime of embezzlement, while misap- propriation of property acquired by payment of unlawful cause generally does not, except only in payment of usufructuary right of unlawful cause and other occasions which the rule of payment of unlawful cause should be construed limitedly for the purpose of the rule, there is still room for crime of embezzlement. When it comes to embezzlement of currency and the stolen property, the constitution of embezzlement should also be judged according to relevant civil laws.