货物调包类财产犯罪案件的教义学分析

The Dogmatic Analysis of Cases concerning the Crime against the Property by Switching Goods

针对货车司机将运输中的货物非法占为己有,再用次品或废品补足重量,冒充原货物交付收货方的行为的定性,其前阶段调包行为根据运输中的货物的占有归属,可能构成盗窃罪、侵占罪或职务侵占罪,其后阶段交货行为构成针对财产性利益的诈骗罪,该两阶段行为按照吸收犯处理。在财产损失的认定上,宜采取整体财产说的立场,在满足一些特殊条件的情况下,犯罪数额可以扣减次品价值。如果收购原货物的人与司机有共谋,对调包行为的完成起到一定作用的,收购人与司机成立共同犯罪,即使数名司机彼此之间没有共谋,收购人的涉案数额也应累积计算。验货人员与司机勾结,明知是不合格的次品而予以签收的行为,不构成职务侵占罪的正犯。

For the behavior that the truck driver illegally occupies the goods in the transportation, then makes up the weight with the defective products or waste products, pretends them as the original goods and thus delivers them to the consignee, the switching behavior in the former stage may constitute the crime of theft, embezzlement or duty-related embezzlement according to the status of the occupation of the goods in the transportation;while the delivery behavior in the latter stage constitutes the crime of fraud on the property benefits, and the behaviors in two stages should be treated according to the principle of inclusive offence.In the determination of property loss, the standpoint of the whole property theory shall be taken. When some special conditions are met, the amount of crime may be reduced by the value of defective goods. When the purchaser of the original goods colludes with the driver and plays a certain role in the completion of switching behavior, they commit a joint crime. Even if several drivers do not collude with each other, the amount of crime for the purchaser should be determined through accumulation. The inspector who colludes with the driver and knowingly accepts unqualified and defective products does not constitute the principal offender of the duty-related crime.