侵占不法原因给付物的认定困境与规范路径

不法原因给付所致的民事保护限缩效果具有不法给付行为和主体的规范侧重,投射于刑事可罚性层面,对不法原因仅在受领人单方及受领人不法程度更重时,不能对侵占行为予以绝对限缩甚至湮没。前置民事规范对越轨行为与不法状态的矫正主要通过干预理性经济人间的财产关系予以实现,而后置刑事规范,其所聚焦的主要关系不再为私人主体间利益冲突与平衡,而系国家作为公权力主体与越轨行为人之间的公私二元对立,转向对挑战法秩序的越轨行为予以更强制化规制与预防的新维度。民刑规范在以宪法为基石的法秩序体系中虽然具有适用顺序位阶、规制目的侧重等层面的不同导向,但其适用均以消灭并矫正与法秩序相冲突的不法行为及状态、维护巩固法秩序的稳定为共同指涉与依归。民事前置法对不法给付人与不法给付行为单方侧重性规制与预防,不能实质性矫正不法受领后逾越法秩序的不法状态,其规范目的的侧重所显现的局限性需通过后置刑事规范予以补足。

The Predicament and Normative Path of the Determination of the Embezzlement of Unlawful Cause Payment

The restriction effect of civil protection caused by illegal reason payment has the emphasis of illegal payment behavior and subject. For criminal punishability, when the illegal reason is only more serious in the recipient''s unilateral side and the recipient''s illegal degree, the act of embezzlement can not be absolutely limited or even denied. The correction of deviant behavior and illegal state by civil norms is mainly realized by interfering with the property relationship among rational economic man, while for criminal norms, the main relationship is no longer the conflict of interest and balance among private subjects. Instead, it is the public-private dichotomy between the state as the subject of public power and the deviant actor, turning to a new dimension of stronger regulation and prevention of deviant behavior in challenging legal order. Although civil law and criminal law have different orientations in the order of application and the emphasis on the purpose of regulation in the legal order system based on the constitution, their application is to eliminate and correct the illegal acts and states in conflict with the legal order, and to maintain the stability of the legal order as the common reference and ultimate purpose. The unilateral regulation and prevention of the illegal payer and the illegal payment behavior in the civil law can not essentially correct the illegal state that goes beyond the legal order after the illegal acceptance, and the limitations shown by the emphasis on the purpose of its norms need to be made up through the adjustment of criminal norms.