侵占罪适用问题探析

侵占罪是侵犯财产罪中的一个新罪名。通过分析人对物持有、支配关系的主观意识 ,遗忘物和遗失物的区别和行为人拒不退还或者拒不交出的时间 ,界定了侵占罪与盗窃罪、侵占罪与不当得利 ,进而指出侵占罪的具体构成要件是以非法占有他人财物为目的 ,将他人的遗忘物非法占为己有 ,数额较大 ,案发前拒不交还的行为 ,旨在解决由于法律条文抽象性和相关司法解释滞后性的矛盾 ,使法官在实际工作中做到客观、公正的评判。

On the Crime of Taking Forcible Possession of Things and Related Cases

As a newly promulgated crime of converting property, the crime of taking forcible possession of things forgotten by others is analyzed involving people's subjective awareness of possessing and dominating a thing. The crime is differentiated from larceny and improper gaining according to the facts that the thing which a person has obtained was lost or forgotten by others and that when the thing was returned to the owner or handed over to the department concerned. Thus, the crime is defined as such a behavior that a person takes illegally forcible possession of a thing which is of comparatively high value and was forgotten by others and, in particular, he or she refused to return or hand over before being charged. The strict definition is clarified with the purpose to settle the contradiction between the abstract of legal provisions and time-lag of judical explanation so as to make the judgement more objective and fair in practice.