侵占不法原因给付物的法律规制——以刑民评价冲突的消解为切入点

Legal Regulation on Embezzling the Object by Illegal Prestation:the Elimination of Conflict between the Criminal and Civil Law Evaluation

围绕同一不法原因给付的法律事实,刑法与民法之间的评价冲突难以消解,此时需要从刑民交叉回归到刑民分立,划定刑民各自规制的案件事实。案件事实的相对性是违法判断相对性的基础内容,属于缓和的违法一元论与违法相对论的共通部分,所以对侵占不法原因给付物的处理不应因违法判断的立场不同而有所差异。不法原因给付制度要求给付物归受领人所有,在符合民事不法原因给付的场合,阻却侵占罪的成立,民法适用区间之外属于刑法的评价范围,对此需要对区分说予以修正。如果给付行为的不法程度较轻、给付尚未终局或者受领人的不法程度更高,受领人将给付物非法占为己有,构成侵占罪。

It is difficult to resolve the conflicts between criminal law and civil law when evaluating the same fact of the payment of illegal causes,in which case,it is necessary to return from the intersection of civil law and criminal law to the separation between the two,and to delimit the case fact of regulation between them.The relativity of case fact is the basic content of the relativity of illegal judgment,which belongs to the common part of soft illegal monism and illegal relativity.Hence the treatment on possession objects of the payment of illegal causes should not be different because of the different positions of illegal judgment.According to the system of the payment of illegal causes in civil law,the given object shall belong to the recipient,so the recipient’s act shall not be committed by crime of embezzlement.The range not applicable for civil law belongs to criminal law,which needs to amend the theory of differentiation.If the illegality of delivery is relatively minor,the payment is not yet final,or the illegality of the recipient is greater than the payer,the recipient will illegally occupy the object for himself,which constitutes the crime of embezzlement.