作者：徐光华
作者介绍：江西财经大学法学院教授，江西财经大学法治政府研究中心研究员，法学博士
出版日期：2016年12月9日
内容提要 对81个"非法取回本人所有而被他人合法占有的财物"样本案例的定罪、量刑、犯罪数额认定的考察发现,原则上只有造成占有人财产损失的才会以财产罪定罪,而若判处财产罪会导致量刑畸重,所以,样本判决限制财产罪的适用和犯罪数额的认定以实现量刑轻缓。本文认为,优先考虑量刑合理的"以刑制罪"忽略了定罪的准确性,易消弥财产罪之间、财产罪与其他罪之间的界限;部分判决量刑畸轻、犯罪数额认定混乱、判决书说理不一;样本判决"以刑制罪"有其实践理性,但缺乏必要的规范约束易导致乱象。由此反思我国刑法对财产罪的定量立法模式,较重的法定刑是导致"以刑制罪"的根本原因。立法赋予量刑更大的裁量空间将有助于缓解司法上的"以刑制罪",也有助于对包括占有权在内的财产法益的全面保护并实现罪刑均衡。
关键词 以刑制罪 所有权 占有权 量刑均衡
Abstract: According to the empirical researches of the 81 sample cases of "retrieving self-properties illegally that legally occupied by others" on its conviction, measurement of penalty and determination of crime amount, it can be seen that in principal, only causing the damage of the property of the occupier can it be convicted of property crime. Sentenced to property crime would lead to excessively heavy punishment. However, sentences of sample cases would limit the application of the property crime and the cognizance of the crime amount in order to realize the sentencing mitigation. Giving priority to the reasonable measurement of penalty that "affirming a crime by penalty" ignores the accuracy of conviction and easy to quell the bound among property crimes as well as the bound between property crime and other crime which would cause too minor measurement of penalty, confusion of determination of crime amount and difference on judgment argumentation. The quantitative legislation mode and the relatively heavy sentence of Chinese criminal law is the root cause of "affirming a crime by penalty" ". The sample sentences of "affirming a crime by penalty" has its practical rationality but is lack of necessary regulation restraint which would easily lead to concussion. If the penalty could be given more measurement space in the perspective of legislation, it will help mitigating "affirming a crime by penalty" and help to realize the comprehensive protection of property right including the right of possession as well as contribute to the balance between crime and punishment.