财产犯罪中财产性利益的事实占有:以存款债权为中心

The Factual Possession of Property Interest in the Crime against Property:Centering on Deposit Claims

区分占有与所有是盗窃罪规范构造的基石,无论对象是有体物还是财产性利益,均应在此基础上结构性地理解占有概念。财产性利益的所有,是指法律上的权利归属,应遵循民事权利分配规则;财产性利益的占有,是指事实上的行使可能性,应在刑法上作独立判断。规范占有概念导致占有与所有的混同,以及盗窃有体物与盗窃财产性利益的实行行为构造发生二元分化。事实占有概念不否认占有的规范性,但反对以权利归属作为判断财产性利益占有及其转移的标准。财产性利益之上往往存在多重且相互独立的事实占有主体,一方建立占有不以打破另一方占有为前提,因而建立占有可先于破坏占有而发生。当且仅当行为人不仅取得了对财产性利益的事实行使可能性(建立占有),也消除了原权利人对财产性利益的事实行使可能性(破坏占有)时,方符合盗窃罪占有转移的行为特征。

The dogmatic structure of theft is founded on the distinction between possession and ownership.Whether the object of theft is a tangible object or an intangible property interest,the concept of possession should be structurally understood on the basis of this distinction.The ownership of property interest refers to its legal attribution of rights and should be subject to the rule of civil law,whereas the possession of property interests refers to its factual possibility of exercise and should be independently judged in criminal law.The normative concept of possession leads to the confusion between possession and ownership,resulting in a dualistic approach to the construction of theft involving tangible objects and intangible property interests.The factual concept of possession does not exclude the normativity of possession,but opposes taking the legal attribution of rights as the standard for possession and its transfer of property interests.There are often multiple subjects that have independent factual possession of the same property interest,and the establishment of possession by one party does not presuppose the break of another,thus the establishment of possession can occur before the break of possession.The transfer of possession as a fundamental element of theft is considered as fulilled when and only when the offender not only obtains the factual possibility of the exercise of property interests(establishment of possession)but also eliminates this possibility(break of possession)for the original right owner.