也论普通侵占罪与盗窃罪之界分

New Discussion on Difference between Normal Embezzlement and Larceny

长期以来,区分普通侵占罪与盗窃罪的关键被认为在于确定事前财物由谁占有。然而现实的情况却表明,这种看似清楚的区分逻辑将我们带入一种难以相互说服的"明希豪森困局"当中。如果我们转换思路,从立法者将普通侵占罪设定为绝对的亲告罪这一前提出发进行求索,可以发现,普通侵占罪的成立是以被害人具备依靠私力救济追索或者请求补偿的法律可能性为基本条件的。以此推论得到的两罪界分关键不再是事前的财产占有权属状态,而是行为人的侵害行为是否具有损害被害人自力救济法律可能的类型化特征,即行为人的行为具有侵害自力救济法律可能的类型性特征,不管事前财产由谁占有,都成立盗窃罪而不再属于侵占罪的规制范围。

Traditionally,the key point used to differentiate normal embezzlement and larceny has been selected as ＂whether some property is possessed by defendant before his criminal conduct＂. But in fact,this plausible logic leads us into an ineloquence state. If we could switch our prospective and research on the basic that normal embezzlement is an absolute no- trail- to- without- complaint crime,the essence of normal embezzlement would be understood as ＂defendant seize property of others by means of no harm to victims ＇lawful possibility to remedy by themselves＂. According to this viewpoint,the key point to differentiate above two offenses would be ＂whether defendant harms the lawful possibility of victim to remedy by himself＂. When defendant＇s conduct have this character of lawful possibility to remedy by oneself,no matter he possessed victim＇s property in advance or not,his conduct should be convicted as larceny.