摘要
日本民法规定不法原因给付者可能丧失给付物的返还请求权,但日本刑事判例在多数场合下认定横领不法原因给付财物的行为成立横领罪。学说上则有肯定说、否定说和两分说的对立。从违法一元论出发,民法上不能得到保护的在刑法上也不应保护,但不法原因给付者在民法上并非当然丧失返还请求权,受托者在刑法上仍有可能成立横领罪。刑法上应区分不法原因委托与给付,在不法原因委托的场合,才可能成立横领罪。我国民法没有不法原因给付的明文规定,但日本刑法学中的相关理论特别是两分说对我们仍有借鉴意义。
According to Japanese civil law, the person who made payment or a present with an unlawful intent may not be entitled to claim for restitution. However, on a number of occasions, such act has been determined as embezzlement in criminal cases in Japan. Academically, there are three doctrines held in this respect, including positive, negative and dichotomy approaches. Sticking to the monist notion in relation to illegal acts, what can not be protected in civil law, shall not be protected in criminal law, either. But the person who made the payment or a present thing with an unlawful intent does not naturally lose the claim for restitution in civil law, and the person who accepted the payment/thing may still be pursued embezzlement crime according to criminal law. Criminal law, therefore, should distinguish mandate under unlawful intent from payment/present made with an unlawful intent. Only for the former act, can the crime of embezzlement be established.
出处
《环球法律评论》
CSSCI
北大核心
2009年第6期114-121,共8页
Global Law Review
基金
中国博士后基金一等资助项目<刑民关系的基础理论>成果
项目编号20060400269
