论窃取欠条行为的定性

On the Qualitative Behavior of Stealing IOUs

在司法实践中,存在大量窃取欠条的案件。在这些案件中,大多是债务人为逃避债务,侵害债权人的合法债权的行为。第三人窃取他人欠条的情况也时有出现。我国现行刑法理论中对该行为的认定存在很大争议,虽部分司法机关的实践中有相关法规出现,仍无法达成司法中的统一意见,对该行为也缺少恰当的处罚意见。本文立足于法律对财产犯罪的规定以及我国司法实践,对窃取欠条的行为进行讨论,以得出正确的结论。本文首先讨论欠条的法律性质,确定欠条属于财产犯罪的对象,并界定欠条属于财产性利益。其次,对窃取欠条的行为根据行为主体不同分类讨论。其中债务人窃取欠条应认定盗窃罪。第三人窃得欠条没有后续行为的为无罪、虚构其经过债权人授权的事实向债务人主张债务的为诈骗罪、以毁坏为理由威胁债权人交出财物的为敲诈勒索罪以及窃得后卖与债务人的成立与债务人的共犯。在此基础上讨论该行为的犯罪形态问题,认定在欠条是债权债务唯一凭证的前提下窃取欠条属于犯罪既遂。最后讨论该后续行为,认定撕毁、隐匿行为属于盗窃罪的事后不可罚行为从而不应当被论罪。出卖欠条的行为人若前行为被评价为取得型犯罪则出卖行为因是前行为的延续而不可罚,收买欠条的债务人应以掩饰、隐瞒犯罪所得罪论处。

In judicial practice, there are many cases of stealing IOUs. In most of these cases, it is the behavior of the debtor to evade the debt and infringe the legitimate creditor’s right. The third person steals the circumstance that others IOUs also appear from time to time. In China’s current criminal law theory, there is a great dispute on the identification of this act. Although some judicial organs have relevant laws and regulations in practice, they still cannot reach a unified opinion in the judiciary, and there is a lack of appropriate punishment opinions on this act. Based on the legal provisions of property crime and China’s judicial practice, this paper discusses the behavior of stealing IOUs, in order to draw a cor-rect conclusion. This paper first discusses the legal nature of IOU, determines that IOU belongs to the object of property crime, and defines that IOU belongs to property interests. Secondly, the be-havior of stealing IOUs is classified and discussed according to different behavior subjects. Among them, debtors that steal IOUs should identify larceny. A third party who steals an IOU without fol-low-up is not guilty;Fraud is committed if it falsely claims that it has been authorized by the credi-tor to claim a debt against the debtor;Fictitious facts authorized by the creditor to claim a debt against the debtor are guilty of fraud;The theft of an IOU and its sale with the debtor constitutes an accomplice with the debtor. On the basis of this, the criminal form of the act is discussed, and it is concluded that stealing IOU is a completed crime under the premise that IOU is the only proof of creditor’s right and debt. Finally, the follow-up behavior is discussed, and it is determined that the tearing and concealing behavior is an unpunished behavior of larceny and should not be punished. If the doer of selling IOU is evaluated as the acquisition type crime, the selling behavior is not pun-ishable, because it is the continuation of the behavior before, and the debtor of buying IOU should be punished by covering up and concealing the crime.