错误汇款领得行为之刑法认定——从比较法视角切入

Criminal Law Recognition of Wrongful Remittance Acquisition

因对占有、财物等概念的理解存在差异,各国对错误汇款类案件存在不同的解决方案。日本、德国刑法体系在此类案件上的明显分歧在于是否成立诈骗罪。日本在财产犯罪中设置了对物犯罪和对利益犯罪两种不同的罪名,因而选择以法律占有作为出发点成立不作为的诈骗罪;德国则从物权法出发,基于民事、刑事法秩序一致的理由,否认了财产犯罪的成立。由于法规范的不同,对于德、日刑法的处理方式应当批判吸收。在我国刑法语境下,从侵占罪出发处理此类案件是一个更现实的选择。侵占罪的构成要件该当必须肯定对存款债权的占有,并且注意发挥“代为保管的他人财物”和“拒不返还”这两个特色要件的机能。

Different countries have diverse solutions to cases of wrong remittances, due to differences in the understanding of concepts such as possession and property. The obvious distinction between the criminal law systems of Japan and Germany in such cases lies in whether the crime of fraud is established. In property crimes, Japan has set up two kinds of crimes of crimes against property and crimes against interests, so it chooses to use legal possession as the starting point to establish the crime of fraud of inaction;Germany starts from the property law denied the establishment of a property crime, in light of that the order of civil and criminal laws coherence. Due to the difference in legal norms, the handling methods of German and Japanese criminal laws should be critical absorbed. In the context of criminal law in China, it is more practical to deal with such cases from the crime of embezzlement. The constituent elements of the crime of embezzlement should affirm the possession of the deposit creditor’ rights and pay attention to the functions of the two characteristic elements of “property kept by others” and “refuse to return”.