非法占有目的之利用意思的疑难问题和理论深化

The Difficult Problems and Theoretical Deepening of the Intention of Using for the Purpose of Illegal Possession

非法占有目的中利用意思的认定呈现不断缓和的趋势,应明确内涵并框定范围。利用意思虽是行为人的主观想法,但应进行刑法规范性评价和认定。利用意思不必是单一、纯粹的,其评价具有包容性。利用意思所包含的财物效用形式多样,但对财物效用的理解需根植于财物的性质特征,因而利用意思所享受的财物效用限于利用财物而从财物本身直接产生效用。利用意思所指向的财物对象可以是财产性利益,且限于取得行为时已有对其利用的意思。

The intention of using for the purpose of illegal possession refers to that using or disposing the property according to the purpose it may have,and enjoying the utility or benefit it may generate.The identification of the intention of using shows a trend of continuous easing,so its connotation and scope should be defined.Although the intention of using is the subjective idea of the actor,it should be evaluated by criminology.The intention of using need not be single or pure.If the actor contains both the idea of using and destroying,the intention of using can also be identified.The intention of using also includes the one that the actor lets others in his stand acquire and use the property.It doesn’t matter that the actor has the definite intention of using or has the possible intention of using.The intention of using can be for specific property,but also for general property.The utility and benefit of the property is varied but should be limited and based on its nature and character.Enjoying the utility or benefit of the property means that the utility or benefit is generated from the property itself,the actor can directly enjoy the utility or benefit by using the property,rather than the property is just a means,the property infringement indirectly brings the benefit or effect.It doesn’t matter that the intention of using is realized at or after the acquisition of the property.The property object of the intention of using should be correctly identified.