挪移型第三人涉案财物刑事追缴的判断标准和范围

The Criteria and Scope of the Criminal Recovery of the Property Involved by the Third Party in the Transfer Type

摘要: 第三人取得违法所得方式中最具研究价值的是“挪移型取得”，犯罪行为人将违法所得投入市场，实质上赋予了涉案财物糅合合法因素的可能。我国对挪移型第三人涉案财物刑事追缴的标准和范围尚无明确规定，司法机关应对特定物追缴到底以实现受害人特殊保护，对种类物的追缴则需综合考量第三人主观状态、交易价格、交易手段等因素，在利益衡量理念指导下做出正确判断。就追缴范围而言，即使第三人主观“非善意”，也要排除其在交易中支付的合理对价，对于耦合第三人合法劳动而产生的增值部分不应追缴，对市场规律作用必然产生的增值部分予以追缴，禁止肆意扩张追缴范围，以刻画对挪移型第三人涉案财物刑事追缴的合理边界。

Abstract: The most valuable research value in the way of obtaining illegal income by a third person is “transfer acquisition”. The criminal actor puts the illegal income into the market, which essentially gives the property involved the possibility of combining legal factors. There is no clear stipulation on the standard and scope of the criminal recovery of the property involved in the case of the third party in China. Judicial organs should recover the specific property in order to realize the victim’s special protection. The recovery of the species needs to comprehensively consider the subjective state of the third party, transaction price, transaction means, and other factors and make a correct judgment under the guidance of the concept of interest measurement. As far as the scope of recovery is concerned, even if the third party is subjectively “not in good faith”, it is necessary to exclude the reasonable consideration paid in the transaction. The value-added part generated by the coupling of the third party’s legal labor should not be recovered, and the value-added part inevitably generated by the role of market laws should be recovered. It is prohibited to arbitrarily expand the scope of recovery to depict a reasonable boundary for the criminal recovery of the property involved in the transfer to the third party.