关键词: 不法原因给付, 给付, 委托, 侵占罪, 犯罪对象

Abstract:

Scholars have different views on whether the property given for illegal reasons can be crime target in the crime of
embezzlement. Among them are the theory of affirmation，the theory of negation and binary theory. The theory of affirmation
is based on the differences between the department laws，but it does not explain why the criminal law protects the benefits
that civil law does not. The theory of negation advocates the unity of order of the laws，but it only requires the consistency
of the concepts of the department laws，without considering the peculiarity of the criminal law. The binary theory stresses
the distinction between entrustment and payment based on the civil law，and puts forward the concept of“entrustment for
illegal reasons”，which is opposed by many civil law scholars. The traditional arguments of the affirmation theory cannot be
established. The latest demonstration argues that there are some defects in the theory of affirmation in that it can’t adjust to the
new trend of the gradual separation of the power of ownership in property turnover. Seen from the perspective of protection of
law benefits，criminal law can not only protects the property interests，but maintains the security of social order. On the other
hand，the provisions of the criminal law do not clearly define that“others’property”must be legitimate property. Therefore，
the theory of affirmation can be established，which argues that the payment for illegal reasons can constitute the crime tareet of
the crime of embezzlement.

Key words: payment for illegal reasons, prestation, entrustment, the crime of embezzlement, crime target