室外杀人之后“就地取财”行为的定性分析

An Qualitative Analysis of "Derive Property on the Spot" After Outdoor Murder

对于室外杀人之后,犯罪嫌疑人临时起意拿走被害人身上数额较大财物的取财行为应该如何评价,理论和实践上一直存在着分歧。目前,学界对此行为有三种评价,分别为抢劫罪、盗窃罪、侵占罪。解决问题的关键在于确定人死之后财物的归属。对财物归属的界定不能单单局限于刑法领域,应当参考民法领域中占有和所有的概念界定,这样就能够较为科学地解释定罪的依据,达到国民预期可能性,不超过定罪的涵射范围。

There still exist the divergences in theory and practice on how to judge the behavior of a criminal suspect taking a large amount of property from the victim after the outdoor murder. At present, there are three categories of evaluation in academic circles, namely： robbery, theft and embezzlement. The key to solve the problem is to deter-mine the ownership of property after the death of the victim. The definition of property ownership should not only be confined to the sphere of criminal law, but also refer to the definition of possession as well as all the concepts in the field of civil law. In this way, the basis of conviction can be relatively explained scientifically so as to reach the possible expectation of the people, which does not exceed the scope of conviction.