论侵吞不法原因给付成立侵占罪

A Discussion about Crime of Embezzlement for the Reason of Embezzling Irregular Reason Payment

我国刑法理论界对不法原因给付对侵占罪的影响研究,基本停留在介绍德日判例和理论的层面上,引进的理论存在逻辑矛盾和论证不足等缺陷;司法实践中更是过度考虑形势政策,陷入了恣意性、靠整体感官评价去判案的危险境地。提倡财产犯罪侵害的法益是更加有涵摄力的"法律——经济财产说",能克服所有权说和占有说等缺陷。以"法律——经济财产说"为基础,从教义学的角度来看,侵吞不法原因给付依然侵害了法益,符合"非法占有他人财物"的客观要件,原则上成立侵占罪。

The study of the effect of irregular reason payment on the crime of embezzlement in China remains in the stage of introducing German and Japanese jurisprudence and the theory. The introduced theory has the its defects, such as logical contradiction, lack of argument and so on. In the judicial practice, the situational policy has been over-considered, plunging into the risk of delinquency, relying on the overall sensory evaluation to decide the case. Promoting the crime of property interest is a more sensible ＂law-economic property theory＂ that can overcome the defects of ownership and possession. Based on the theory, from a doctrine point of view, the misappropriation of unlawful causes continues to infringe on legal interests and is in line with the objective elements of ＂illegal possession of other people＇s property＂. In principle, an offence of embezzlement is established.