论巨额财产来源不明罪的作为性

On the Acting Character of the Crime of Huge Unidentified Property

本文试证明巨额财产来源不明罪是作为犯。本罪实行行为是持有来源不明的巨额财产,而非不能说明财产来源;在行为形式划分的诸学说中,规范说更合理;根据规范说,持有违反禁止性规范,故属于作为而非不作为;"不能说明来源"属于消极的构成要件要素,因此并非实行行为,但对不法判断仍有实质意义。

The essay is an attempt to illustrate the form of the crime of huge unidentified property as an active one.The perpetrating act of the crime focusing on the possession of huge unidentified property,not the failure to explain its source properly. Of all the major theories aiming to distinguish the two forms of behavior the Norm Theory seems the most reliable, according to which possession,as a breach prohibitive norm, should be interpreted as a kind of action rather than omission. Failing to explain the source properly,therefore,is not the perpetrating act of the crime,but a negative constitutive element,which can also play a substantively significant role in the e- valuation of the unlawfulness of the possession.