财产犯罪的刑民关系分析——以权利外观理论为出发点

Analysis of the Criminal-Civil Relationship of Property Crimes—The Appearance of Rights Theory as a Starting Point

摘要: 通常认为，民法中的权利归属是认定财产犯罪的前提：在民法中，当行为人利用虚假权利外观，致使第三人在善意时，基于正当信赖支付对价而取得相关财产之所有权时，权利外观理论发挥着保护善意第三人之作用，使其“屏蔽”原权利人之追索而丧失取得之所有权。换言之，其使原财产权利人承担不利后果。在刑法中，刑民判断的侧重点不同，财产犯罪被害人以及行为的认定应回归刑法本体的处理，而不必采取权利外观理论作为判断要素，对法秩序统一性不应当极端化。

Abstract: It is generally accepted that the attribution of rights in civil law is a prerequisite for the identification of property offences: in civil law, the doctrine of appearance of rights serves to protect bona fide third parties by “shielding” them from the original owner’s claims when the perpetrator uses a false ap-pearance of rights to obtain ownership of the property in good faith, based on the payment of con-sideration in justifiable reliance. The doctrine of the appearance of rights serves to protect bona fide third parties by “shielding” them from the claims of the original owner and forfeiting the acquired title. In other words, it exposes the original owner of the property to adverse consequences. In criminal law, the focus of criminal and civil judgement is different, and the identification of victims of property crime and conduct should be returned to the treatment of criminal law proper, without the need to adopt the appearance of rights doctrine as an element of judgement, and the uniformity of the legal order should not be polarised.