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| 編輯推薦： |
1.清晰罪名框架 + 丰富案例
2.德国联邦最高法院观点 + 学界精粹，快速掌握德国财产犯罪理论发展全貌
3.买短乘长定性等难题怎么解？深耕德国刑法财产犯罪构造，德国刑法视角给你新思路！
|
| 內容簡介： |
|
本书是关于德国刑法财产犯罪构造原理的基础教科书。德国刑法学家鲁道夫·伦吉尔教授用精炼的语言、详尽的罪名构造框架和丰富的案例，清晰地展示了德国刑法财产犯罪理论的整体风貌。尤其是，本书详尽地列举了德国联邦最高法院和学界的主要观点，如果想要快速了解德国刑法财产犯罪的理论发展状况，本书可以作为重要的参考。由于德国的社会交往规范与我国存在不少差异，本书介绍的各罪理论未必能直接照搬到我国的刑法适用中。但是，本书讨论的大量问题是我国刑法理论和实践已经或者即将“遭遇”的，如买短乘长等骗取各种服务的行为如何定性的问题，提出的解决方案未必不适用于我国。至少，讨论这些问题的思路和视角有可借鉴之处。从教科书风格而言，本书与我国现有教科书有一定区别，主要体现在对各罪的构造框架的清晰展示，并在案例中予以贯彻运用。因此，建议本科生和研究生参照这些知识工具，对我国刑法各罪进行本土化的运用，想来这是大有裨益的。外国法的教科书如同一面镜子，在映照中可以更清晰地加深对我国法学知识的理解。认真读完本书，相信一定会有所收获！
|
| 關於作者： |
【德国】鲁道夫·伦吉尔
----------------------------
〔德〕鲁道夫·伦吉尔（Rudolf Rengier）教授，康斯坦茨大学刑法学与相关领域教席教授，是德国最著名的刑法学者之一。1978年，在弗莱堡大学以《现行与未来刑事诉讼法中的拒绝作证权》（Die Zeugnisverweigerungsrechte im geltenden und künftigen Strafverfahrensrecht）为题取得了博士学位；1984年，完成教授资格论文《结果加重犯与同类表现形态》（Erfolgsqualifizierte Delikte und verwandte Erscheinungsformen）。1985年至1986年担任慕尼黑大学刑法、刑诉法与相关领域教授；自1986年起，担任康斯坦茨大学刑法学与相关领域教席教授；2018年荣休。在其众多刑法著作中，尤以三部刑法教科书享誉学界，已被奉为德国法学专业学生的必读经典。
代表著作为刑法系列三部曲:《刑法总论》《刑法分则I:针对财产的犯罪》和《刑法分则II:针对人身权利和公共利益的犯罪》。此三部著作每年修订再版，影响深远。
译者：
王复春，广西大学法学院副教授、硕士生导师，北京大学-波恩大学联合培养法学博士，最高人民法院第四批挂职学者，主要研究方向为中国刑法学、比较刑法学、法律实证研究。
|
| 目錄：
|
《德国刑法财产犯罪分论》目录
导论 ··················································································································································· 001
一、分论的结构 ················································································································· 001
二、尤其是针对财产的犯罪 ······················································································· 001
三、关于本书的使用 ································································································· 003
第一部分 盗窃罪与侵占罪 ···························································································· 5
第一章 盗窃罪（第242条） ························································································ 007
第一节 基础与结构问题 ···························································································· 007
第二节 客观构成要件：他人的动产 ································································· 010
一、动产 ····················································································································· 010
二、”他人性”要素 ······························································································· 011
第三节 客观构成要件：取走 ·················································································· 015
一、他人的占有 ····································································································· 015
二、建立新的占有 ······························································································· 021
三、”打破”（Bruch）他人的占有 ································································· 026
第四节 主观构成要件：故意 ·················································································· 034
第五节 主观构成要件：占为己有意图 ····························································· 034
一、基础 ····················································································································· 034
二、结构问题 ········································································································· 036
三、排除对物本体的占有 ··················································································· 037
四、排除对财物价值的占有 ············································································· 039
五、关于排除占有方面的其他案例的讨论 ············································· 042
六、建立自己的占有 ··························································································· 048
七、建立第三人的占有 ······················································································· 050
八、建立占有的”意图” ···················································································· 056
九、附条件的问题 ······························································································· 058
第六节 企图占为己有的非法性 ·········································································· 060
一、特定之债 ········································································································· 060
二、种类之债 ········································································································· 061
第七节 未遂、既遂与终了 ···················································································· 062
第八节 共同正犯与参与犯 ···················································································· 063
第二章 盗窃罪的特别严重情形（第243条） ····················································· 067
第一节 基础 ················································································································· 067
第二节 在实际案例分析中的第243条 ····························································· 068
第三节 第243条第1款第2句中的具体范例 ················································· 070
一、第1项 ················································································································· 070
二、第2项 ················································································································· 073
三、第3项至第7项 ······························································································· 078
第四节 第243条第2款 ······························································································· 080
第五节 未遂 ················································································································· 083
一、结构问题 ········································································································· 083
二、三种未遂情形 ······························································································· 083
三、未遂的开始与中止 ······················································································· 086
第六节 竞合 ················································································································· 086
第三章 携带武器盗窃、入室盗窃和团伙盗窃 ················································ 091
第一节 基础与结构问题 ···························································································· 091
第二节 携带武器及其他危险工具盗窃（第244条第1款第1a项） ················· 092
一、基础 ····················································································································· 092
二、枪支的概念 ····································································································· 093
三、技术意义上的武器概念 ············································································· 096
四、警示枪支 ········································································································· 096
五、危险工具的概念 ··························································································· 097
六、携带（Beisichführen）要素 ········································································· 105
七、关于职务上携带武器的行为人 ··························································· 109
第三节 携带其他工具盗窃（第244条第1款第1b项） ····································· 110
一、适格的行为工具 ··························································································· 110
二、携带要素 ········································································································· 114
三、使用意图 ········································································································· 114
第四节 第244条第1款第1项范围内的部分中止 ············································· 116
第五节 入室盗窃（第244条第1款第3项和第4款） ········································· 117
一、基础与构造框架 ··························································································· 117
二、所保护的住宅 ······························································································· 118
三、其他 ····················································································································· 121
第六节 团伙盗窃（第244条第1款第2项、第244a条） ···································· 123
一、结构问题 ········································································································· 123
二、团伙的概念 ····································································································· 123
三、”作为团伙的成员”实行犯罪并且”与其他团伙成员协作” ············· 125
四、加重的团伙盗窃（第244a条） ··························································· 131
第四章 侵占罪（第246条） ························································································· 133
第一节 基础与结构问题 ···························································································· 133
第二节 ”他人的动产”要素 ···················································································· 136
第三节 ”自己或者第三人建立占有”要素 ····················································· 138
一、主观要素（占为己有意图） ····································································· 138
二、客观要素（占为己有行为） ····································································· 139
三、无先行占有基础的占为己有 ····································································· 143
四、为第三人占为己有 ······················································································· 145
五、占为己有的违法性 ······················································································· 147
第四节 重叠的占为己有 ···························································································· 147
第五节 背信型侵占（第246条第2款） ··························································· 150
第六节 补充性条款 ····································································································· 151
第五章 特别规定（第247条至第248c条） ························································ 154
第一节 家庭或者亲属间盗窃（第247条） ····················································· 154
第二节 盗窃、侵占价值极其低廉的物（第248a条） ···································· 155
第三节 擅自使用交通工具罪（第248b条） ·················································· 155
一、构成要件 ········································································································· 155
二、竞合 ····················································································································· 158
第四节 盗取电能罪（第248c条） ··········································································· 158
第二部分 抢劫罪、抢劫型盗窃罪、敲诈勒索罪以及抢劫型袭击汽车司机罪 ························································································································· 161
第六章 抢劫罪（第249条） ························································································· 163
第一节 基础和结构问题 ···························································································· 163
第二节 针对人身的暴力 ···························································································· 165
一、暴力概念 ········································································································· 165
二、展开 ····················································································································· 166
第三节 以对身体或者生命造成当场危险相胁迫 ············································· 168
第四节 特定的加重手段与取走之间的关系 ··················································· 170
一、目的上的联系 ······························································································· 170
二、时间与地点上的联系 ··················································································· 172
三、通过不作为使用暴力 ··················································································· 174
四、以杀人故意抢劫 ··························································································· 176
第五节 主观构成要件 ································································································· 176
第六节 力图占为己有的非法性 ·············································································· 177
第七节 未遂 ················································································································· 177
第八节 共同正犯与参与犯 ························································································ 179
一、承继的共同正犯与帮助犯 ········································································· 179
二、其他 ····················································································································· 181
第九节 竞合 ················································································································· 182
第七章 加重抢劫罪（第250条） ··············································································· 184
第一节 基础 ················································································································· 184
第二节 第250条第1款 ······························································································· 185
一、第250条第1款第1a项 ················································································· 185
二、第250条第1款第1b项 ················································································· 185
三、第250条第1款第1c项 ················································································· 187
四、第250条第1款第2项 ··················································································· 188
第三节 第250条第2款 ······························································································· 188
一、第250条第2款第1项 ··················································································· 188
二、第250条第2款第2项 ··················································································· 194
三、第250条第2款第3a项 ················································································· 194
四、第250条第2款第3b项 ················································································· 194
五、案例解题 ········································································································· 194
第四节 终了阶段实现的加重事由 ······································································· 196
第五节 竞合、部分中止 ···························································································· 197
第八章 抢劫致人死亡（第251条） ········································································· 199
第一节 基础与结构问题 ···························································································· 199
第二节 基本犯与死亡结果之间特定的危险实现关联性 ························· 201
一、基础 ····················································································································· 201
二、在终了阶段使用致死的强制手段 ························································· 203
第三节 轻率 ················································································································· 206
第四节 与杀人犯罪的竞合 ························································································ 207
第五节 未遂与中止 ····································································································· 209
一、未遂 ····················································································································· 209
二、中止 ····················································································································· 210
第六节 共同正犯与参与 ···························································································· 213
第九章 抢劫型盗窃（第252条） ··············································································· 216
第一节 基础和结构问题 ···························································································· 216
第二节 客观构成要件 ································································································· 217
一、犯盗窃罪 ········································································································· 217
二、在犯罪的当场（auf frischer Tat） ························································· 218
三、”被发现”要素 ······························································································· 220
四、强制部分 ········································································································· 222
第三节 主观构成要件 ································································································· 222
第四节 正犯与参与 ····································································································· 224
一、共同正犯及其边界 ······················································································· 224
二、部分的共同正犯 ··························································································· 226
第五节 竞合 ················································································································· 227
第六节 案例解题 ····································································································· 228
第十章 敲诈勒索罪（第253条、第255条） ··························································· 230
第一节 基础和结构问题 ···························································································· 231
第二节 强制手段 ········································································································· 233
第三节 财产处分的争议点 ························································································ 236
一、基础 ····················································································································· 236
二、案例解题 ········································································································· 238
三、争论 ····················································································································· 239
四、三角敲诈勒索 ······························································································· 242
第四节 抢劫（第249条）与敲诈勒索财物（第255条）之间的界限 ······················································································· 244
第五节 敲诈勒索债权 ································································································· 248
第六节 财产损失 ········································································································· 249
第七节 确保型敲诈勒索与带有确保性质的强制下的财产损失 ················· 252
一、基础 ····················································································································· 252
二、带有确保性质的情形 ··················································································· 253
三、不具有确保性质的情形 ··············································································· 254
第八节 主观构成要件 ································································································· 255
第九节 谋取获利的非法性 ························································································ 256
第十节 应受谴责性条款（第253条第2款） ···················································· 258
第十一节 加重的抢劫型敲诈勒索罪 ································································· 259
第十二节 竞合 ············································································································· 261
一、与第263条的竞合 ······················································································· 261
二、其他的竞合问题 ··························································································· 262
第十三节 其他问题 ····································································································· 262
第十一章 抢劫型袭击汽车司机罪（第316a条） ················································· 264
第一节 基础 ················································································································· 264
第二节 构成要件 ········································································································· 265
一、结构问题 ········································································································· 265
二、实施针对身体、生命或者决定自由的袭击 ········································· 266
三、袭击的对象是机动车的司机或者乘客 ··············································· 269
四、利用道路交通的特殊条件 ········································································· 271
五、主观构成要件 ······························································································· 274
六、文献中对判例的讨论 ··················································································· 274
第三节 案例解题 ····································································································· 275
第四节 既遂与未遂 ··································································································· 276
第五节 其他 ················································································································· 277
第三部分 诈骗罪与类似于诈骗的犯罪 ···································································· 279
第十二章 诈骗罪（第263条） ····················································································· 281
第一节 基础和结构问题 ···························································································· 282
第二节 欺骗 ················································································································· 283
一、事实 ····················································································································· 283
二、欺骗行为 ········································································································· 285
第三节 认识错误 ········································································································· 295
一、基础 ····················································································································· 295
二、受骗者产生怀疑并轻信 ············································································· 299
三、认识的归属 ····································································································· 301
第四节 财产处分 ········································································································· 303
一、基础 ····················································································································· 303
二、盗窃与二者间的诈骗财物的界限 ························································· 307
三、间接正犯的盗窃与三者间关系（三角诈骗）的诈骗财物之间的界限 ······································································ 312
四、二者间关系中的诈骗债权 ········································································· 317
五、三者间关系中的诈骗债权 ········································································· 320
第五节 财产损失 ········································································································· 322
一、基础 ····················································································································· 322
二、经济的财产概念与法律－经济的财产概念 ········································· 322
三、关于无意识的自我损害理论 ····································································· 329
四、特别的：捐赠诈骗、乞讨诈骗和礼物诈骗 ········································· 329
五、损失的计算、赔偿金和总体清算原则 ··············································· 331
六、个别的（或者个人的）损害点理论 ························································· 337
七、缔约诈骗与危害性损害 ············································································· 339
八、关于财产损失的其他说明和案例群 ······················································· 349
第六节 主观构成要件 ································································································· 364
一、故意 ····················································································································· 364
二、获利意图 ········································································································· 364
第七节 未遂与中止 ····································································································· 369
第八节 企图获利的非法性 ························································································ 373
第九节 竞合 ················································································································· 375
第十节 正犯与参与 ····································································································· 376
第十一节 刑罚加重 ····································································································· 376
第十三章 计算机诈骗（第263a条） ········································································· 381
第一节 基础与结构问题 ···························································································· 382
第二节 一般的构成要件要素 ···················································································· 383
第三节 各实行行为 ····································································································· 385
一、对程序进行不正确的调整（第263a条第1款第1种子类型） ·········································································· 385
二、使用不正确的数据或者不完整的数据（第263条第1款第2种子类型） ····························································· 385
三、未经授权使用数据（第263a条第1款第3种子类型） ··············································································· 386
四、对程序造成的其他非法影响（第263a条第1款第4种子类型） ····································································· 402
第四节 其他 ················································································································· 404
第十四章 滥用保险罪（第265条）、伪造保险事故罪（第263条第3款第2句第5项） ························································································································· 406
第一节 第265条 ············································································································· 406
一、客观构成要件 ······························································································· 406
二、主观构成要件 ······························································································· 408
三、其他 ····················································································································· 409
第二节 伪造保险事故罪（第263条第3款第2句第5项） ········································· 410
一、基础 ····················································································································· 410
二、关于伪造保险事故的目的 ········································································· 410
第十五章 骗取服务罪（第265a条） ··········································································· 413
第一节 基础 ················································································································· 413
第二节 滥用自动装置（第265a条第1款第1种子类型） ········································· 414
第三节 第265a条第1款第2种子类型 ······································································· 416
第四节 骗取运输服务（第265a条第1款第3种子类型） ········································· 416
第五节 骗取入场（第265a条第1款第4种子类型） ················································· 417
第十六章 类似于诈骗的经济犯罪（第264条、第264a条、第265b条） ························································································································· 419
第一节 经济刑法的基本问题 ···················································································· 419
第二节 补助金诈骗罪（第264条） ········································································ 420
第三节 投资诈骗罪（第264a条） ·········································································· 423
第四节 信贷诈骗罪（第265b条） ·········································································· 424
第四部分 背信罪与类似于背信的犯罪 ······································································· 427
第十七章 背信罪（第266条） ····················································································· 429
第一节 基础与结构问题 ···························································································· 429
第二节 滥用型构成要件（第266条第1款第1种子类型） ····································· 432
第三节 背信型构成要件（第266条第1款第2种子类型） ····································· 435
一、财产照管义务 ······························································································· 435
二、关于背信型构成要件的范围的扩展案例 ··············································· 437
三、关于产生义务的忠诚关系 ········································································· 441
四、实行行为 ········································································································· 442
五、财产持有人的同意 ······················································································· 443
六、损害有限公司的背信 ··················································································· 443
第四节 财产不利 ········································································································· 446
一、基础 ····················································································································· 446
二、关于财产减少的”直接性” ········································································· 447
三、其他情形 ········································································································· 450
四、危害性损害的问题 ······················································································· 452
五、特别：所谓私设黑金库 ················································································· 453
第五节 正犯与参与 ····································································································· 455
第六节 其他 ················································································································· 457
第十八章 滥用支票卡与信用卡罪（第266b条） ················································· 459
第一节 基础与结构问题 ···························································································· 459
第二节 滥用通用信用卡 ···························································································· 462
一、基础 ····················································································································· 462
二、”三方体系”作为出发点以及立法模式 ················································· 463
三、当今主流的”四方体系” ············································································· 464
第三节 滥用”二方体系”的客户信用卡 ····························································· 466
第四节 滥用电子现金体系中的借记卡 ································································ 467
第五节 有权的持卡人滥用借记卡 ········································································ 469
一、在机构自己的自动取款机上的滥用 ······················································· 469
二、在非机构的自动取款机上的滥用 ··························································· 470
三、滥用通用信用卡的取现功能 ····································································· 470
第六节 转让与骗取通用信用卡 ·············································································· 470
第五部分 事后关联型犯罪 ··························································································· 473
第十九章 包庇罪（第257条） ····················································································· 475
第一节 基础和结构问题 ···························································································· 475
第二节 客观构成要件 ································································································· 477
一、上游犯罪及其利益 ······················································································· 477
二、上游犯罪的利益作为确保的对象 ························································· 478
三、对确保利益的协助 ······················································································· 479
第三节 主观构成要件 ································································································· 481
一、故意 ····················································································································· 481
二、保护利益的意图 ··························································································· 481
第四节 包庇罪与上游犯罪帮助犯的界限 ························································ 482
第五节 其他 ················································································································· 483
第二十章 妨害刑罚权罪（第258条、第258a条） ················································· 486
第一节 基础和结构问题 ···························································································· 486
第二节 妨害起诉（第258条第1款） ···································································· 487
一、上游犯罪 ········································································································· 487
二、妨害 ····················································································································· 488
第三节 妨害刑罚执行（第258条第2款） ···························································· 492
第四节 主观构成要件与未遂 ················································································ 493
第五节 个人的刑罚排除事由（第258条第5款和第6款） ································· 493
一、第258条第5款 ······························································································· 493
二、第258条第6款 ······························································································· 495
三、与其他规定的关系 ······················································································· 495
四、认识错误 ········································································································· 496
第六节 客观归责、正犯与参与 ·············································································· 497
一、基础 ····················································································································· 497
二、辩护行为 ········································································································· 498
第七节 利用职务妨害刑罚权（第258a条） ························································ 499
第二十一章 窝赃罪（第259条、第260条、第260a条） ········································· 503
第一节 基础和结构问题 ···························································································· 504
第二节 上游犯罪 ········································································································· 505
一、”针对他人财产的”违法的行为 ····························································· 505
二、”他人的”行为 ······························································································· 507
三、上游犯罪和窝赃之间的时间关联 ························································· 507
第三节 上游犯罪所得”财物”作为对象 ······························································ 509
一、财物的概念 ····································································································· 509
二、替代窝赃 ········································································································· 510
第四节 实行行为 ········································································································· 512
一、买入或者为自己或第三人获取 ································································· 512
二、出售与协助出售 ··························································································· 516
第五节 主观构成要件 ································································································· 519
第六节 未遂 ················································································································· 520
第七节 由上游犯罪的参与者实施的窝赃 ························································ 522
一、上游犯罪参与的情形 ··················································································· 522
二、不知情地参与上游犯罪 ············································································· 523
第八节 第260条、第260a条 ····················································································· 524
第二十二章 洗钱罪、隐瞒非法获取的财产价值罪（第261条） ····························· 526
第一节 基础和构造 ····································································································· 526
第二节 行为对象 ········································································································· 529
第三节 实行行为 ········································································································· 532
一、第261条第1款第1句的实行行为 ··························································· 532
二、第261条第1款第2句的限制 ····································································· 535
三、第261条第2款的实行行为 ········································································· 537
四、”社会相当的”行为 ······················································································· 537
第四节 主观构成要件 ································································································· 539
第五节 其他 ················································································································· 539
第六部分 毁坏财物罪（第303条至第305a条） ························································· 541
第二十三章 毁坏财物罪（第303条） ········································································· 543
第一节 基础与结构问题 ···························································································· 543
第二节 行为对象：他人的财物 ·············································································· 545
第三节 第303条第1款的行为 ················································································ 545
一、损坏行为（Zerst?ren） ················································································ 545
二、毁坏行为（Besch?digen） ········································································· 546
三、单纯地剥夺物或者排斥使用 ····································································· 548
四、特别是通过涂画、污损、丑化或者未经许可贴画报的毁坏行为 ········································································· 549
第四节 第303条第2款 ······························································································· 551
一、第303条第1款与第2款的关系 ····································································· 551
二、实行行为 ········································································································· 552
第二十四章 其他的毁坏财物犯罪（第304条至第305a条） ····································· 555
第一节 毁坏公共财物罪（第304条） ···································································· 555
第二节 毁坏建筑物罪（第305条） ·········································································· 557
第三节 损坏重要的生产工具罪（第305a条） ···················································· 558
第二十五章 篡改数据罪（第303a条）与破坏计算机罪（第303b条） ························ 559
第一节 篡改数据罪（第303a条） ·········································································· 559
第二节 破坏计算机罪（第303b条） ······································································ 562
第七部分 其他针对财产的犯罪 ····················································································· 565
第二十六章 妨害强制执行罪（第288条） ······························································· 567
第一节 基础与结构问题 ···························································································· 567
第二节 对债务人即将强制执行 ·············································································· 568
第三节 属于债务人财产的一部分 ··········································································· 569
第四节 关于实行行为 ································································································· 570
一、变卖 ····················································································································· 570
二、隐匿 ····················································································································· 571
第五节 主观构成要件 ································································································· 571
第二十七章 非法取回质物罪（第289条） ······························································· 573
第一节 基础和结构问题 ···························································································· 573
第二节 受保护的权利 ································································································· 574
第三节 ”取走”要素 ··································································································· 575
第四节 主观构成要件 ································································································· 576
第二十八章 非法狩猎罪（第292条） ········································································· 578
第一节 基础 ················································································································· 578
第二节 客观构成要件 ································································································· 578
第三节 错误情形 ········································································································· 580
关键词索引 ················································································································································· 582
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