作为规范性支配的占有--以日本的刑事判例为中心

The Normative Essence of Possession: An Analysis Based on Criminal Precedents in Japan

在财产犯中的占有问题上,近年来我国学者关注的一个焦点是,占有是否具有规范性的一面以及占有的规范性与事实性要素之间的关系。大体而言,我国学者基本承认占有具有规范性的一面,相互间争论的只是事实性与规范性之间的关系如何以及各自的权重大小。虽然存在具体观点上的差异,但我国学者都比较狭隘地理解占有的事实性,以及将占有的事实性与规范性理解为可分离的要素。实际上,通过对日本相关刑事判例的类型性分析和理论总结可以发现,即便在单个主体对财物的事实性支配这一被认为最不具有规范性色彩的占有原型形态上,事实性支配也不过是规范性支配的表象。也就是说,占有的本质其实是规范性支配。而一旦占有作为规范性支配的观念得以树立,将占有概念扩展应用于无形无体的财产性利益,从而形成财产性利益的占有这一概念,就是完全可行的。

When it comes to the possession issue of property crime, Chinese scholars have in recent years focused their attention on the question of whether normative property can be found in possession and how to define the relationship between the normative element and the factual element of possession. Generally, it has been basically recognized that possession has a normative property. Most debates, therefore, have focused on the relationship between factual and normative properties, as well as on the question of how much weight should be assigned to them separately. Though differences can be found in particular opinions, Chinese scholars have generally construed narrowly the factual property of possession and considered the normative and factual properties of possession as separate elements. In fact, by analyzing and summarizing the classification of criminal precedents in Japan, we can find out that the factual dominion is noth- ing but the image of normative dominion even if it comes to the occasion that the property is dominated factually by a single subject, which is considered to be the prototype of possession and the least normative one. In other words, the essence of possession is normative dominion. Once the foregoing idea is established, it would be completely feasible to expand the application of the concept of possession to intangible property interests and to finally conceptualize the pos- session of property interests.