盗窃他人占有之本人财物的行为应如何定性?——基于刑法本土资源的检讨

司法实践中 ,一般将盗窃由他人占有之本人财物的行为认定为盗窃罪。理论界从两个不同角度对此进行解释 ,并引发了盗窃罪法益是所有权还是占有的争论 ,但两种理论解释均有其缺陷。实际上 ,理论和实践都应立足于我国刑法的本土资源。从我国刑事立法上看 ,盗窃罪的法益只能是财产所有权 ;从罪刑法定原则出发 ,此类行为不宜认定为盗窃罪。

How to Determine the Accusation for Such Act as Stealing Other's Possession--A Review Basing on the Native Resource of the Criminal Law

In judicial practice, who steals others' property is often determined as larceny. There are two different explanations about it in the theory of criminal law, thus lead to a disputation: which is the legal interest (object) of larceny, ownership or possession? But both two explanations have their shortcomings. In fact, both theory and practice should base on the native resource of the criminal law. It is the ownership that should be the legal interest (object) of larceny according to our country's criminal legislation. And from the viewpoints of the principle --"A legally prescribed punishment for a specified crime", the act discussed above should not be determined as larceny.