不法原因给付型侵占罪的刑法规制

Criminal Law Regulation of Embezzlement Involving Payments Made for Illegal Reasons

摘要: 受领人侵占不法原因给付物之行为是否构成侵占罪属于“民刑交叉”问题。为解决这一问题，应当以法秩序统一性理论为基本前提、以缓和的违法一元论为讨论基础，按照不法原因给付人是否具有返还请求权为标准划分不法原因给付行为。再根据主观原因理论，将两种情况本质的区别要素规范化为具有刑法意义的“给付人始因过错”，给付人具有始因过错则受领人不构成侵占罪，反之则构成。

Abstract: Whether the recipient’s act of encroaching on property given for illegal reasons constitutes the crime of embezzlement is a “civil-criminal crossover” issue. To address this problem, we should take the theory of the unity of legal order as the basic premise and the theory of mitigating illegal monism as the discussion foundation, and classify acts of payment for illegal reasons based on whether the giver has the right to claim restitution. Further, in accordance with the subjective cause theory, the essential distinguishing element between the two situations is standardized as the “giver’s initial fault” with criminal law significance. If the giver has initial fault, the recipient does not constitute the crime of embezzlement; otherwise, it is constituted.