贪污罪既遂与未遂若干问题研究

关于贪污罪是否存在未遂形态,存在否定说与肯定说,笔者赞成肯定说,认为贪污罪属于结果犯,因而存在犯罪未遂,刑法总则规定的构成犯罪预备、未遂和中止的一般原则,同样适用于贪污罪;关于贪污罪既遂与未遂的认定标准,存在失控说、控制说与占有说,笔者则主张非法占有说,认为非法占有公共财物是贪污罪的核心内容,因此可以直接将是否非法占有公共财物作为区分贪污罪的既遂与未遂的标准;贪污罪的既遂与未遂形态具有不同的构成特征。

A Study on Issues about Attempted and Accomplished Embezzlement and Unaccomplishment of Corruption

People hold both positive and negative attitudes towards whether there is attempted embezzlement. This article argues for the latter for the reason that embezzlement also belongs to consequential offences and thus includes attempted embezzlement. The principles of crime preparation, attempted crime and crime desistance in the general provisions of Chinese criminal law can also be applied to embezzlement. As to the determination of embezzlement, this article holds that attempted and accomplished embezzlement can be distinguished by examining whether there is illegal possession of public properties. This article also points out various characteristics of attempted and accomplished embezzlement.