快递分拣员非法占有快递行为的定性

Qualitative Analysis of Illegal Possession of Express Delivery by Courier Personals

快递员非法占有快递这一行为应如何定性,是定为盗窃罪?还是职务侵占罪更为适宜?大多数学者仍是从传统的犯罪构成如从犯罪客体,客观方面,主体,主观方面来进行区分,并没有把握到两罪的实质。因此希望通过寻找新的角度并提出一些拙见,以期能解决此类难题。首先从快递公司对所接受委托的财物应否享有占有权入手,明确占有辅助人是否享有占有权;其次通过分析职务侵占罪的实行行为手段,得出职务侵占罪只包含狭义的侵占,窃取和骗取不包括在职务侵占罪的实行行为中;接着根据不同学者的不同观点,论述了快递中快递物品的归属判断以及封缄物的定义及其理论;最后,依据法律分析所得出的观点对此案例的争议焦点进行一一解决。

How should the act of illegal possession of express delivery be characterized? Should it be classified as theft? Or is it more appropriate to be classified as the crime of duty encroachment? Most scholars still distinguish from the traditional constitution of crimes,such as the object,objective,subject and subjective aspects of crimes,and do not grasp the essence of the two crimes.Therefore,I hope to find a new angle and put forward some humble opinions in order to solve such problems.First of all,from the express company to accept the entrusted property should have possession of the start,clear whether possess auxiliary people enjoy possession;Secondly,by analyzing the means of implementing the crime of occupation,it is concluded that the crime of occupation only includes the narrow sense of occupation,and stealing and cheating are not included in the implementation of the crime of occupation.Then,according to different viewpoints of different scholars,it discusses the attribution judgment of express delivery items,the definition and theory of sealed objects in express delivery.Finally,according to the legal analysis of the point of view of this case to resolve the focus of controversy one by one.