摘要
成立诈骗罪,以陷入错误认识的被害人实施交付财产的交付行为(处分行为)为必要。是否属于交付行为,行为样态这种客观限定几乎没有意义,被害人的认识内容才具有决定性意义;而且,只要受骗者对占有转移的状况存在认识即可,不要求另外存在交付意思。三角诈骗中,被害人不是指遭受经济损失者,而应该是财物的占有者,因而,就第1款诈骗罪需要采取三角诈骗这种结构的,实际上仅限于通过欺骗占有辅助者而让其交付财物的情形。另外,诈骗罪最终处罚的是那些有违被害人之真实意思而转移财物的行为,这实质上是将一种盗窃罪的间接正犯类型特别地予以构成要件化,因而诈骗罪与盗窃罪之间的关系原本应该是,将具有盗窃罪之实质的部分犯罪行为作为诈骗罪来予以处罚,因此,难以绝对地划定两罪的界限。
For the crime of fraud to be established,it is necessary for the wronged victim to have performed the act of delivery of property(i.e.act of disposition).Such an objective qualification of the pattern of conduct is of little significance as to whether or not it is an act of delivery,and the victim’s knowledge about the act is decisive.Moreover,the existence of a separate meaning of delivery is not required as long as the deceived person is aware of the state of the transfer of possession.In a triangular fraud,the victim is not the person who has suffered financial loss but should be the person in possession of the property,so that the structure of triangular fraud required for the offence of fraud specified in Paragraph 1 is in fact limited to cases where the delivery of property has been made by deceiving the person who is in an auxiliary position in possessing the property at issue.Moreover,the offence of fraud,which ultimately punishes the transfer of property against the true intention of the victim,essentially constitutes a special element of a type of indirect perpetratorship of the crime of theft,so that the relationship between the offence of fraud and the crime of theft should have been such that part of the criminal act that has the essence of the crime of theft is punished as the offence of fraud,making it difficult to draw an absolute line between the two offences.
出处
《法治现代化研究》
2020年第3期187-200,共14页
Law and Modernization
关键词
诈骗罪
占有的转移
交付行为
交付意思
三角诈骗
crime of fraud
transfer of possession
act of delivery
meaning of delivery
triangular fraud
