非法占有问题的伦理认知

Ethical Cognition of the Problem of Illegal Possession

在涉财犯罪的刑法讨论中,更多关注于占有这一类罪的保护法益和逻辑基点,虽然厘清了基本概念、积聚了广泛共识,却也存在理论不能一致、实务不便释疑的不足。对涉财犯罪人际关系的实质内容即非法占有的讨论,必须基于刑法所具有的惩恶的伦理本质、主体自治的伦理基础、利益平衡的伦理目标等基本理念。防止损害是刑法干预的正当性原则,这意味着只有从双方性的伦理基点和失衡性的反伦理特性两个层面,才能对非法占有的伦理认知运用于刑法讨论之中。关系双方的确立、原占有状态和占有移转是非法占有的基本构造,相对方以其单方强制造成原占有人的净利益受损是非法占有的刑法界定。取用之争、原占有状态的认定、利益平衡的考量、双方的主体确定、交付意思五个方面展现了非法占有在刑法适用中的解释功能,这就要求非法占有在刑法中的有效运用中,急要调整刑种结构,理顺双方化的刑法逻辑,树立谦抑的刑法观念。

In the discussion of criminal law involving financial crimes, more attention has been paid to the protection of legal interests and logical basis of this type of crime. Although the basic concepts have been clarified and a broad consensus has been accumulated, there are also shortcomings that the theory is inconsistent and the practice is inconvenient. The discussion of the substance of the interpersonal relationship of financial-related crimes, that is, illegal possession, must be based on the basic concepts of the criminal law’s ethical nature of punishing evil, the ethical basis of subject autonomy, and the ethical goal of balancing benefit. Preventing damage is the principle of justification of criminal law intervention, which means that only from the two aspects of the ethical basis of imbalance and the anti-ethical nature of imbalance can the ethical awareness of illegal possession be applied to the discussion of criminal law. The establishment of the two parties, the original state of possession and the transfer of possession are the basic structures of illegal possession. It is the criminal law definition of illegal possession that the opposite party imposes unilaterally on the damage to the original owner’s net benefit. The five aspects of the dispute over access, the determination of the original state of possession, the consideration of the balance of interests, the determination of the subjects of both parties, and the meaning of delivery show the interpretation function of illegal possession in the application of criminal law. It is urgent to adjust the structure of criminal types, rationalize the logic of criminal law of both sides, and establish a modest concept of criminal law.