- 英文摘要
- Weber’s typology of formal and substantive law is an influential analytical framework in legal sociology. This paper uses the commonly encountered “pseudo-property crimes” as its point of departure for examining the underlying tension between the formalization in the civil-criminal dichotomy and the social substantive order. Through an analysis of embezzlement in financial leasing, which presents multiple forms of legal formalization and serves as a representative case, this paper analyzes the formalistic inconsistencies and instabilities that arise when legal experts attempt to reconcile prevailing economic understandings with civil and criminal frameworks. The analysis demonstrates that the seemingly independent concepts of civil and criminal interests are closely intertwined within a shared socio-economic order, thereby challenging the “two-tiered formalization” of civil and criminal property interests, demonstrating that the distinction between civil and criminal law reflects a dynamic choice of normative effects rather than a static distinction between legal interest concepts, and arguing that the notion of “pseudo-property crime” reflects underlying issues of symbolic power and judicial alienation from the formal legal system.
Furthermore, by drawing upon the characteristics of social financialization inherent in financial leasing, the paper examines the quantitative liquidity and abstract character of the formalization of property-related legal interests. Integrating the criminal law characteristics of labeling, painfulness, demoralization, and social harmfulness with the reconstruction of meaning generated by social financialization, the paper argues that the normative effects of civil and criminal law do not inherently possess clear boundaries in terms of severity, leniency, or legal effect. Ultimately, the paper concludes that whether the formalization of civil and criminal norms is based on legal interests or normative effectiveness, it ultimately depends on the governance imagination of legal experts and case-specific judgments regarding substantive social order, rather than the abstract and objective characteristics often assumed in legal doctrine. Failure to recognize this reality will undermine the legitimacy of legal authority and public confidence in the judiciary.
- 目次
- 壹、前言：法之形式性與實質性
貳、融資性租賃的民法形式性歧異與實質樣貌
一、融資性租賃之意義
二、融資性租賃契約之基本特徵
三、融資性租賃之民事定性爭議：分歧的形式化
四、融資性租賃之紛雜實況
參、侵占融資性租賃物的形式化難題
一、以民法形式所有權判斷之困難
二、解構兩層形式化：重返實質性
肆、流動的實質性與二元形式性
一、金融化：融資性租賃背後的新實質性
二、在流動的實質秩序中建構形式性
伍、結論
