非法佔有目的的不同意義 基於對盜竊、侵佔、詐騙的比較研究

The Different Meanings of the Purpose of Illegal. Possession Based on a Comparative Study of Theft, Embezzlement and Fraud

傳統觀點將盜竊罪中的非法佔有目的過度擴張至其他財產罪中，存在明顯疑問，非法佔有目的的解釋需要根據個罪客觀要件的不同予以分別對待，其本身不存在統一的含義。在剝奪所有意圖的側面，由盜竊罪與詐騙罪的客觀要件所決定，兩者的保護法益不能一元化理解。無論採取所有權說、本權說亦或是佔有說，盜竊罪都需要主觀上剝奪所有的意思，但應嚴格限定其含義，而詐騙罪只要客觀上存在財產損失即可，無需額外的剝奪意思。此外，侵佔罪的剝奪所有意圖包含於侵佔故意之中，其並非是主觀超過要素。在取得所有意圖的側面，盜竊罪中的占為所有意圖不應作為主觀超過要素，這一點與侵佔罪是一致的，但基於盜竊與侵佔客觀要件的差異，兩者的含義仍有區別。而詐騙罪中需要嚴格區別獲利意圖與取得意思，對財物的處分能夠確定實現經濟價值的，主觀上均具有獲利意圖，因此在詐騙罪中不適宜再沿用非法佔有目的的概念。

The traditional view extends the purpose of illegal possession of theft excessively to other property crimes, and that is obviously questionable. The interpretation of the purpose of illegal possession should be treated separately according to the different objective elements of a crime, which means that there is no unified meaning in itself. In the aspect of the purpose of depriving others' ownership, determined by objective elements of theft and fraud, the legal interest of the two should not be regarded as same one. Regardless of the theories of ownership, the original possession right and possession, the offender of theft should always have the purpose of depriving others' ownership in his mind, but the meaning of this kind of purpose need to be explained strictly, while for the offender of fraud, this kind of purpose is needless as long as his deed leads to some objective property loss. In addition, for the crime of embezzlement, the purpose of depriving others' ownership is included in the intention of misappropriation, and it is not transcendental inner tendency. In the aspect of the purpose of acquiring ownership, for crime of theft, this kind of purpose is not transcendental inner tendency, which is consistent with the crime of embezzlement. However, based on the difference between the objective elements of theft and embezzlement, the meaning of the two is still different. As far as the crime of fraud, it is necessary to distinguish the purpose of making a profit and the purpose of acquiring ownership. If the disposition of property could certainly realize the economic value of property, then the offender of fraud must have the purpose of making a profit in his mind, thus it is not suitable to use the concept of the purpose of illegal possession.