刑法分则I：针对财产的犯罪（第26版）

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！

 

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！

【德国】鲁道夫·伦吉尔
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〔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。

《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（Zerstören） ················································································ 545
　　二、毁坏行为（Beschädigen） ········································································· 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