盜用財物若干問題研究
發(fā)布時間：2019-01-03 12:28
【摘要】：盜用是指意圖一時使用并具有返還意思,非法使用他人財物的行為。社會整體經(jīng)濟水平不斷提高,人類擁有財產(chǎn)的價值也不斷攀升,汽車、直升機等使用價值巨大的財產(chǎn)已經(jīng)走進普通人的生活。然而,犯罪手段也趨于多樣化,盜開汽車、盜用船舶、盜用耕牛、盜用房屋、盜用計算機運算能力等盜用行為層出不窮。公民財物價值不斷增高,財物的使用權也越來越值得刑法保護,加之盜用行為日漸增多,部分盜用行為已經(jīng)嚴重侵害到了公民的財產(chǎn)權益,已然具有了相當?shù)目闪P性。為了嚴謹?shù)亩ㄐ员I用行為,合理的處罰部分盜用行為,全面的保護財產(chǎn)權益,盜用行為應到得到新的定性。在日本,為了處罰部分盜用行為,日本學者試圖通過解釋非法占有目的方法,將部分盜用行為硬性解釋為具有非法占有目的,從而導致了不斷擴大解釋非法占有目的。此外,一開始日本法院通過判斷盜用人有無返還意思,進而來認定該盜用行為是否需要科以刑罰,而后來,隨著進一步擴大處罰盜用的需要,即使盜用人在轉移財物時具有返還意思,法院為了處罰該盜用行為,也會判定為具有非法占有目的。這就說明,為了達到懲處部分盜用的目的,日本法院走在一條擴大解釋甚至是模糊非法占有目的的道路上。很明顯,在處罰部分盜用行為的論證方法上,解釋非法占有目的的方法不僅是對非法占有目的的擴大解釋,更進一步模糊了盜用行為與盜竊的界限,使法院可以隨意認定盜用可罰。通過對比分析的方法可知,我國對于盜用行為性質(zhì)的認定,也在走與日本相同的道路。我國通說也認為盜竊罪主觀上需要非法占有目的這一要件。同樣,面對已然具有了相當可罰性的部分盜用行為,學者們也試圖通過解釋非法占有目的的方法去擴大盜竊罪的處罰范圍,從而將部分盜用行為規(guī)制為盜竊罪。而這種方法存在很大的缺陷,首先是同樣會導致擴大解釋非法占有目的,其次會導致對部分可罰的盜用行為的量刑偏重,最后是這種解釋的方法并不能周延的處罰可罰的盜用行為。我國刑法對于盜用行為沒有詳細的規(guī)制,司法解釋只處罰少數(shù)的盜開汽車行為,司法解釋也沒有解決這些缺陷。分析現(xiàn)有司法解釋對盜用行為的定性可知,司法解釋處罰面過窄,僅對盜用機動車的行為進行處罰,導致司法解釋處罰盜用行為具有局限性。面對形形色色的盜用行為,僅通過解釋非法占有目的方法已經(jīng)不能滿足處罰盜用的需要。為了解決解釋非法占有目的的方法的不足,對比分析中外刑法中對盜用行為的規(guī)定,在此基礎上,初步提出盜用罪的立法建議。盜用行為應當單獨入罪,就可以解決現(xiàn)有法律框架內(nèi)對盜用行為定性處罰的缺陷。盜用罪,是指具有返還意圖,非法使用公私財物,數(shù)額較大或者盜用特殊財物、多次盜用的行為。并且創(chuàng)新地闡述了盜用罪的法條設計,為盜用行為單獨入罪提供了理論依據(jù)。
[Abstract]:Embezzlement refers to the act of illegally using other people's property with intent to use it temporarily and with the intention of returning it. The overall economic level of the society continues to improve, and the value of property owned by human beings is also rising. The property of huge use value such as automobiles and helicopters has entered the life of ordinary people. However, the criminal means also tend to be diversified, such as theft of cars, theft of ships, theft of cattle, theft of houses, embezzlement of computer computing ability, and so on. The value of civil property is increasing, the right to use property is more and more worthy of criminal law protection, coupled with the increasing acts of embezzlement, some embezzlement has seriously infringed upon the property rights and interests of citizens, and has already had a considerable degree of punishment. In order to strictly define embezzlement, punish part of embezzlement reasonably and protect property rights and interests comprehensively, embezzlement should be given new characterization. In Japan, in order to punish part of the embezzlement, Japanese scholars try to explain the purpose of illegal possession by explaining the method of illegal possession, and interpret part of the embezzlement as having the purpose of illegal possession, which leads to the continuous expansion of the interpretation of the purpose of illegal possession. In addition, at first, the Japanese court decided whether the embezzlement would require punishment by judging whether the embezzler had the intention of returning it or not, but later, as the need for punishment for embezzlement was further expanded, Even if the embezzler has the intention of returning the property, the court will decide that it has the purpose of illegal possession in order to punish the embezzlement. This shows that, in order to punish part of the embezzlement, the Japanese courts are on the road of expanding interpretation and even blurring the purpose of illegal possession. It is clear that the method of explaining the purpose of illegal possession is not only an expansion of the interpretation of the purpose of illegal possession, but also a further blurring of the boundary between embezzlement and theft in the argumentation of punishment for part of embezzlement. Make it possible for the court to decide that embezzlement is punishable. Through comparison and analysis, we can see that our country is following the same road as Japan in determining the nature of embezzlement. The general theory of our country also thinks that the crime of larceny needs the purpose of illegal possession subjectively. Similarly, in the face of the already quite punishable part of embezzlement, scholars also try to expand the scope of punishment of theft by explaining the purpose of illegal possession, so as to regulate part of embezzlement as theft. But this method has the very big flaw, first will also lead to the expansion of the interpretation of illegal possession purposes, and then will lead to a part of the penalty for misappropriation, Finally, this method of interpretation does not provide a comprehensive penalty for punishable embezzlement. The criminal law of our country has no detailed regulation on embezzlement, judicial interpretation only penalizes a few car theft, and judicial interpretation does not solve these defects. By analyzing the nature of the existing judicial interpretation of embezzlement, we can see that the punishment of judicial interpretation is too narrow, and only the act of embezzlement of motor vehicles is punished, which leads to the limitation of judicial interpretation of punishment for embezzlement. In the face of all kinds of embezzlement, only by explaining the purpose of illegal possession can not meet the need of punishment for embezzlement. In order to solve the deficiency of the method of explaining the purpose of illegal possession, this paper contrasts and analyzes the provisions of embezzlement in Chinese and foreign criminal law, on the basis of which, it puts forward the legislative suggestions on the crime of embezzlement. Embezzlement should be criminalized separately, which can solve the defects of the qualitative punishment of embezzlement within the existing legal framework. The crime of embezzlement refers to the act of having the intention of returning, illegally using public and private property, large amount or embezzling special property and embezzling many times. And innovatively elaborated the embezzlement crime law design, has provided the theory basis for the embezzlement behavior separately criminalizes.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D924.35
本文編號：2399359
[Abstract]:Embezzlement refers to the act of illegally using other people's property with intent to use it temporarily and with the intention of returning it. The overall economic level of the society continues to improve, and the value of property owned by human beings is also rising. The property of huge use value such as automobiles and helicopters has entered the life of ordinary people. However, the criminal means also tend to be diversified, such as theft of cars, theft of ships, theft of cattle, theft of houses, embezzlement of computer computing ability, and so on. The value of civil property is increasing, the right to use property is more and more worthy of criminal law protection, coupled with the increasing acts of embezzlement, some embezzlement has seriously infringed upon the property rights and interests of citizens, and has already had a considerable degree of punishment. In order to strictly define embezzlement, punish part of embezzlement reasonably and protect property rights and interests comprehensively, embezzlement should be given new characterization. In Japan, in order to punish part of the embezzlement, Japanese scholars try to explain the purpose of illegal possession by explaining the method of illegal possession, and interpret part of the embezzlement as having the purpose of illegal possession, which leads to the continuous expansion of the interpretation of the purpose of illegal possession. In addition, at first, the Japanese court decided whether the embezzlement would require punishment by judging whether the embezzler had the intention of returning it or not, but later, as the need for punishment for embezzlement was further expanded, Even if the embezzler has the intention of returning the property, the court will decide that it has the purpose of illegal possession in order to punish the embezzlement. This shows that, in order to punish part of the embezzlement, the Japanese courts are on the road of expanding interpretation and even blurring the purpose of illegal possession. It is clear that the method of explaining the purpose of illegal possession is not only an expansion of the interpretation of the purpose of illegal possession, but also a further blurring of the boundary between embezzlement and theft in the argumentation of punishment for part of embezzlement. Make it possible for the court to decide that embezzlement is punishable. Through comparison and analysis, we can see that our country is following the same road as Japan in determining the nature of embezzlement. The general theory of our country also thinks that the crime of larceny needs the purpose of illegal possession subjectively. Similarly, in the face of the already quite punishable part of embezzlement, scholars also try to expand the scope of punishment of theft by explaining the purpose of illegal possession, so as to regulate part of embezzlement as theft. But this method has the very big flaw, first will also lead to the expansion of the interpretation of illegal possession purposes, and then will lead to a part of the penalty for misappropriation, Finally, this method of interpretation does not provide a comprehensive penalty for punishable embezzlement. The criminal law of our country has no detailed regulation on embezzlement, judicial interpretation only penalizes a few car theft, and judicial interpretation does not solve these defects. By analyzing the nature of the existing judicial interpretation of embezzlement, we can see that the punishment of judicial interpretation is too narrow, and only the act of embezzlement of motor vehicles is punished, which leads to the limitation of judicial interpretation of punishment for embezzlement. In the face of all kinds of embezzlement, only by explaining the purpose of illegal possession can not meet the need of punishment for embezzlement. In order to solve the deficiency of the method of explaining the purpose of illegal possession, this paper contrasts and analyzes the provisions of embezzlement in Chinese and foreign criminal law, on the basis of which, it puts forward the legislative suggestions on the crime of embezzlement. Embezzlement should be criminalized separately, which can solve the defects of the qualitative punishment of embezzlement within the existing legal framework. The crime of embezzlement refers to the act of having the intention of returning, illegally using public and private property, large amount or embezzling special property and embezzling many times. And innovatively elaborated the embezzlement crime law design, has provided the theory basis for the embezzlement behavior separately criminalizes.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D924.35
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