- 學位論文
背信罪本質及成立要件之檢討－兼論背信罪共同正犯之適用問題
An review of the essence and constituent elements of Crime of breach of trust－also on the problem of the application of the joint principal offender of Crime of breach of trust
摘要
現今的經濟活動日漸多樣化，自制定以來未歷經修正之刑法背信罪，在解釋與適用上也遇到一些困難。而背信罪以「為違背其任務之行為」作為背信行為之態樣，如此概括的描述造成判斷上的不明確，且與其他財產犯罪產生適用上的問題。而在經濟活動的過程中，具有決策權之事務處理者所為之決定，有無造成本人損益往往無法當下判斷，而僅以財產之得失來認定有無損害，亦存有疑義。此外，在客觀事實認定具有重要性之主觀要件，除了故意外，尚設有圖利與損害之意圖，其間之關係與適用亦須探討。因此，本文主要是針對刑法背信罪之規定在解釋與適用上存在的問題，從背信罪本質之定位問題開始，進而就違背任務行為之判斷與財產損害結果之認定，及主觀要件上所存在之問題，參考日本的相關文獻，試著提出解釋方法或修法建議，來解決目前背信罪存在之問題。 另一方面，在背信罪之事例中，經常出現協助事務處理者完成任務之第三人，而此第三人通常無事務處理之身分，且與事務處理者雙方皆係立於自身之利益來達成經濟活動，彼此間存在對立、緊張之關係，此時若輕易的使交易相對人成立背信罪之共同正犯的話，事實上是對經濟活動造成某種程度的制約。因而有見解以「對向犯」之概念來排除相對人共同正犯之適用，不過，如此之做法是否適當，不無疑義。因此，本文參考日本實務與學術見解之討論，作為我國之借鏡，希望使我國在背信罪共同正犯之適用得以更加完善。
並列摘要
As current economic activities become more various, Crime of breach of trust in Criminal Law also have difficulties in explication and application since it has not been modified since its enactment. A person who acts “contrary to his duties” commits Crime of breach of trust. It is hard to make judgments by such unclear description which also leads to problems of the application of other property crimes. In the process of economic activities, it is still doubtful to judge damages caused by decisions made by people with decision-making authority merely from property loss for the damages are difficult to evaluate at once. In addition, it needs to be further discussed that the relationship and applications between the significant subjective elements regarded by objective facts and the deliberate intention to make profits and to harm. In consequence, the research is aimed at the existent problems of Crime of breach of trust in explication and application. From the essences of Crime of breach of trust and judgment of the acts contrary to duties to recognition of damaged property and problems of subjective element, the research is to propose the ways to explain and modify the law, and to solve the existent problems of Crime of breach of trust with reference from Japan. On the other hand, a third person often helps the person handling affairs to complete the mission in the cases of Crime of breach of trust. The third person does not have the identity as the person handling affairs; they trade with each other for their own interests. The relationship between them is inverse and tense. Actually, it's constraints on economic activity, in case easy to judge the person who oppose to the perpetrator of the accomplice of Crime of breach of trust. There is judgment using the "opposite" of the concept to exclude the person who oppose to the perpetrator of the accomplice, but the judgment is in doubt. Therefore, with the reference of practices in Japan and academic discussions, the research is aim to improve the application of the accomplice of Crime of breach of trust in Taiwan.