侵占罪中的持有行为探究

侵占罪是指将已然持有的他人财物非法占为已有的行为。这种已然持有行为在刑法条文中表述为行为人通过代为保管他人财物和拾得遗忘物、发现埋藏物而持有他人财物。从代为保管具有的广泛含义来讲，侵占罪中的代为保管概念应予以摒弃，当以外延更广的持有概念取而代之。同时侵占罪的犯罪对象也将由原来的代为保管他人财物、遗忘物、埋藏物转变为他人财物。侵占罪的这一内容上的变更是由侵占罪的易占有为不法所有的实质决定的，因而不会扩大侵占罪的处罚范围；而且也不会违反刑法的谦抑性原则以及罪刑法定原则，反而有利于司法者遵循罪刑法定原则，由此也将有利于推动中国刑事法治的发展。

Analysis of Hold in the Crime of Embezzlement

The crime of embezzlement is that one makes other people＇s property that he already holding illegally for himself. This hold statement in criminal law is that actors holding other people＇s property through safekeeping other people＇s property and picking up lost property and finding objects buried. From entrust custody has a broad meaning, the concept of safekeeping in the embezzlement should be abandon, and take concept of hold instead of it. At the same time, crime targets in the embezzlement that is safekeeping other people＇s property, lost property and objects buried will change into other people＇s property. This change is determined by substance of the embezzlement that is changing possess into illegal own. So it will not expand the scope of punishment in the crime of embezzlement, and will not violate the principle of submissiveness and crimes and penalties prescribed by law of criminal law. On the contrary, it is good for justice obey this principle, and can promote the rule of law in china forward.