侵财犯罪中之占有问题研究

占有是民法和刑法中的重要概念。刑法占有源自民法占有概念体系,但刑法学界往往强调其特殊性,忽视其同质性。在我国占有辅助人对物之占有,在民法或刑法中都不被认可。由于我国刑法规定的职务侵占罪具有特殊性,这使得占有辅助人的行为认定变得模糊不清。对等关系人的占有是简单的共同占有,共有人之一擅自处分占有物,构成侵占罪,而非盗窃罪。被委托的封缄物中内容物属于委托人单独占有,没有受托人占有或共同占有之余地。

Research on the Possession in Property-related Crimes

Possession is an important concept in civil and criminal law. Possession in criminal law is derived from concept system for possession in civil law. However, criminal law scholars tend to emphasize on the particularity of criminal law and neglect its homophily. In China, an individual＇s possession of an object in accordance with the instructions of others is neither accepted in civil law nor in criminal law. Due to the particularity of misappropriation stipulated in China＇s criminal law, identification of the behavior of an individual in possession of an object in accordance with the instructions of others is obscure. The counterparts possession simply represents common ownership, and one of co-owners is arbitrarily in possession of objects, which constitutes crime of encroachment rather than larceny. The trustors are in sole possession of the contents of the sealed items, which are not possessed by the trustees independently or jointly.