财产犯罪保护法益的抉择与实践展开:财产权利说

The Choice and Practice of Legal Interests Protection in Property Crimes:Property Right Theory

关于财产犯罪保护法益,我国目前主要存在占有说、所有权说的对峙。其中,占有说对财产制度的理解流于形式,不当扩张犯罪圈的同时又导致处罚漏洞。所有权说只关注自物权,忽视他物权和债权,无法实现对财产权利的全面保护。应坚持将财产犯罪的本质定义为对物权和债权不法侵害的财产权利说。该说在所有权人转移合法占有人财产的场合,能根据权利保护的相对性作出合理的出罪、入罪判断;当所有权人取回被行政机关扣押的财物时,将该种行为解释为与财产权利无涉的妨碍行政管理秩序的行为予以出罪;在违禁品犯罪的刑法处置中,根据违禁品的财产权利属性阙如,根据行为本身对社会秩序的侵害定罪量刑。

As for the protection of legal interests in property crimes,there is mainly a confrontation between the possession and ownership theory in China at present.Among them,the understanding of the property system by the theory of possession is a mere formality,which not only expands the criminal circle but also leads to loopholes in punishment.The ownership theory only focuses on jus in re propria,neglect jus in re aliena and creditor's rights,and cannot achieve comprehensive protection of property rights.We should adhere to the definition of the essence of property crimes as property rights of which the real rights and creditor's rights are illegally infringed upon.In the case that the owner transfers the property of the legitimate possessor,a reasonable judgment of guilt or innocence can be made based on the relativity of rights protection.When the owner retrieves the property seized by the administrative authority,the act shall be interpreted as a behavior which hinders the order of administrative management and is not related to property rights,so that the actor shall be deemed innocent.In the criminal law disposal of prohibited goods crimes,based on the absence of the property rights attributes of prohibited goods,conviction and sentencing are determined based on the infringement of social order by the behavior itself.