不法原因给付与侵占罪的成否

Payment Made by Illegal Cause and Its Impact on the Establishment of Crime of Embezzlement

受领人将不法原因给付物据为己有的行为是否成立侵占罪,涉及法益保护、法秩序的统一性等诸多问题。肯定说不符合法益保护原则与法秩序统一性的原理,各种两分说所采取的区分标准不明确或者不合理,其结论也有悖于刑法的谦抑性。民法上的合法行为,不可能成为刑法上的违法行为,就此而言,刑法判断不应当具有独立性。民法上的违法行为,并不当然具有刑法上的违法性,在此方面,应当强调刑法判断的独立性。即使某种行为的合法性在民法上存在分歧,基于刑法的谦抑性,也不应将这种行为作为犯罪处理。质言之,只要给付者基于不法原因将财物交付给他人,即使其是否属于不法原因“给付”在民法上可能存在争议,也不应将受领人的行为认定为侵占罪。

Whether the act of taking payment made by illegal cause as his own can establish the crime of embezzlement involves many issues related to the protection of legal interests and the unity of legal order.Theory that approves the establishment does not conform with the principle of the protection of legal interests and the unity of legal order,while different theories that distinguish different cases are not clear or reasonable with their distinction standards,also their conclusions are contrary to the modest application of criminal law.A legal act in the civil law cannot be deemed as an illegal act in the criminal law,in this regard,a criminal determination should not be independently made.An illegal act in the civil law does not necessarily have the illegality in the criminal law,in this regard,the independent nature should be emphasized.Even if there is disagreement about the legality of an act in the civil law,it should not be treated as a criminal act based on the modest application of criminal law.In essence,only if the payer delivers the property and goods to others by illegal cause,even though the legality of such delivery may be controversial in the civil law,the act of the receiver should not be determined as the crime of embezzlement in the criminal law.