业务侵占:贪污罪的解释方向  

Embezzlement: Direction of Interpretation of the Crime of Corruption

作　　者：王彦强[1] 

机构地区：[1]南京师范大学法学院

出　　处：《法学研究》2018年第5期136-152,共17页Chinese Journal of Law

基　　金：江苏省高校优势学科建设工程(PAPD);中国法治现代化研究院院内项目资助

摘　　要：立法与司法解释对贪污罪入罪标准的修正,导致贪污罪与盗窃、诈骗等侵犯财产罪之间产生严重的罪刑失衡。为解决这一问题,学者们提出了不同的解决方案。竞合论方案,包括想象竞合说和特别关系法条竞合从一重处断说,虽然简单易行,但这一方案或者因为理由不充分,或者因为混淆了功能、性质迥异的罪量、罪质因素,破坏了行为类型(定型)的统一性,甚至引发同一行为类型内部产生罪刑失衡,而难以采行。因此只能尝试互斥论方案,即坚持贪污罪应为单一侵占行为类型,将盗窃、诈骗等行为方式排除在贪污罪之外,从而从一开始就否定贪污罪与盗窃罪、诈骗罪的竞合关系。无论从罪刑均衡的角度看,还是从体系解释、法条文理、语义解释、目的解释的角度看,互斥论方案都是能够成立的。The recent adjustment of the standard of the crime of corruption,especially the substantial increase of the amount standard of this crime,by the new amendment to the Chinese Criminal Law and related judicial interpretations has led to serious punishment imbalance between the crime of corruption and such ordinary property crimes as theft and fraud and it is therefore necessary to seek an appropriate solution to this problem in criminal dogmatics.The solutions based on the concurrence theory-either treating the relationship between this two kinds of crime as“imaginative joiner of offenses”,or treating it as“overlap of articles of law”and dealing with it according to the principle of“heavier clause first”-are simple and easy to implement,but difficult to adopt,because these two solutions may lead to serious“crisises in dogmatics”:the former ignores the fact that the legal interests protected by corruption crime and those protected by ordinary property crimes are identical,and blurs the boundary between“imaginative joiner of offenses”and“overlap of articles of law”,whereas the latter confuses the quality element with the quantity element,undermines the unity of conduct classification,and even leads to new imbalance between crime and punishment within the same category of conduct.Therefore,we can only try the solution based on mutex,which insists that“embezzlement”is the only behavior type of the crime of corruption;that there is no concurrence relation between the crime of corruption and the crimes of theft and fraud in the first place;and that the behavior which is called“committing theft or fraud by taking advance of his or her position”only constitutes the crime of theft or fraud and has nothing to do with the crime of corruption.In this way,the problem of punishment imbalance arising from the concurrence between these two kinds of crimes can be easily solved.It can be argued that the solution based on mutex is tenable both from the perspective of the necessity of realizing the bala

关 键 词：贪污罪 职务侵占罪 竞合论 业务侵占 

分 类 号：D924.392[政治法律—刑法学]