张文博合同诈骗案的法理研究
发布时间：2019-04-28 14:46
【摘要】：合同诈骗罪是我国市场经济日益发展过程中出现的新型欺诈性犯罪,是我国市场经济发展到一定阶段的必然产物。自从1997年《刑法》将合同诈骗罪作了规定,使该罪成为了独立的罪名,改变了司法实践中合同诈骗犯罪行为认定为诈骗罪的做法,这对合同诈骗罪的研究和司法实践具有指导性的意义。虽然这样的立法也遭到了一些专家学者的质疑,但是随着近十多年来的司法实践表明,对合同诈骗犯罪的新规定已经收到了良好的法律效果和社会效果;同时这也促进了专家学者们对合同诈骗罪的更深层次的研究。但是,合同诈骗是经济领域常见多发的犯罪,在高速的市场经济条件下也呈现出来了一些新的难题,笔者试图以张文博合同诈骗案为例,围绕着合同诈骗罪的相关难题进行探讨分析,以求找到解决的方法。 本文框架由三个部分组成,包括案情及诉讼过程、存在问题的理论梳理及解决思路和该案处理结果评析:第一部分是案情介绍,主要概括了案情的来龙去脉,同时列举控辩双方主要的争议焦点并由此引发出笔者对本案要论述的法理问题;第二部分紧接着第一部分中引发出的法理问题,进行理论上的梳理及提出解决思路。特别是控辩双方在认定上存在较大争议的合同的范围、欺诈的理解、犯罪数额的认定及“非法占有目的”的认定,笔者结合刑法学界中多种学说进行有条理的分析,着重从被告人张文博客观方面和主观方面入手梳理罪与非罪的区分。同时,对本案中本罪与贷款诈骗罪竞合关系进行简单论述;第三部分是对本案处理结果的评析,分为理论总结和判决评析两部分。理论总结部分主要从本文中运用到的刑法学界理论结合具体案情,给本案作一个归纳性总结;判决分析部分主要针对合浦县人民法院对本案的判决作了简单的回应。 本文从张文博合同诈骗罪的真实案例入手,引出合同诈骗罪在司法实践中存在的诸多难点问题,通过对本案疑难问题提出的解决思路并结合立法目的和司法实践,试图就合同诈骗罪在理论和实践中存在的问题进行梳理,并进行较为深入的法理分析,以期指导司法实践。
[Abstract]:The crime of contract fraud is a new type of fraud crime in the developing process of market economy in our country, and it is the inevitable product of the development of market economy in China to a certain stage. Since 1997, the Criminal Code stipulated the crime of contract fraud, which has made it an independent crime and changed the practice of determining the crime of contract fraud as a crime of fraud in judicial practice. This is instructive to the study of the crime of contract fraud and judicial practice. Although such legislation has also been questioned by some experts and scholars, with the judicial practice of more than ten years, the new provisions of contract fraud crime have received good legal and social effects; At the same time, it also promotes the further research on the crime of contract fraud by experts and scholars. However, contract fraud is a common crime in the economic field, and it also presents some new problems under the condition of high-speed market economy. The author tries to take Zhang Wenbo's contract fraud case as an example. This paper discusses and analyzes the related problems of contract fraud, in order to find a way to solve it. The framework of this paper consists of three parts, including the case and the litigation process, the theoretical analysis and solution of the existing problems, and the evaluation of the outcome of the case: the first part is the presentation of the case, which mainly summarizes the origin and context of the case. At the same time, the author enumerates the main controversial focus of the prosecution and defense, which leads to the legal issues to be discussed by the author in this case. The second part is followed by the legal problems caused by the first part. In particular, the scope of the contract, the understanding of fraud, the determination of the amount of crime and the determination of the purpose of "illegal possession" in the cognizance of the contract in dispute between the prosecution and the defense are analyzed in a systematic way in the light of a variety of theories in the field of criminal law. Focus on the defendant Zhang Wenbo from the objective and subjective aspects of sorting out the distinction between crime and non-crime. At the same time, the relationship between this crime and the crime of loan fraud in this case is simply discussed; the third part is the evaluation of the outcome of the case, which is divided into two parts: theoretical summary and judgment evaluation. The theoretical summary part mainly from the theory of criminal law applied in this paper combined with the specific case to make a inductive summary of the case; the judgment analysis part mainly aimed at the Hepu County people's Court to make a simple response to the judgment of this case. This article starts with the real case of Zhang Wenbo's crime of contract fraud, leads to many difficult problems in the judicial practice of the crime of contract fraud, and through solving the difficult problems in this case, combining the legislative purpose and judicial practice, This paper attempts to sort out the problems existing in the theory and practice of the crime of contract fraud, and carries on a more in-depth legal analysis in order to guide the judicial practice.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.3;D920.5
本文编号：2467719
[Abstract]:The crime of contract fraud is a new type of fraud crime in the developing process of market economy in our country, and it is the inevitable product of the development of market economy in China to a certain stage. Since 1997, the Criminal Code stipulated the crime of contract fraud, which has made it an independent crime and changed the practice of determining the crime of contract fraud as a crime of fraud in judicial practice. This is instructive to the study of the crime of contract fraud and judicial practice. Although such legislation has also been questioned by some experts and scholars, with the judicial practice of more than ten years, the new provisions of contract fraud crime have received good legal and social effects; At the same time, it also promotes the further research on the crime of contract fraud by experts and scholars. However, contract fraud is a common crime in the economic field, and it also presents some new problems under the condition of high-speed market economy. The author tries to take Zhang Wenbo's contract fraud case as an example. This paper discusses and analyzes the related problems of contract fraud, in order to find a way to solve it. The framework of this paper consists of three parts, including the case and the litigation process, the theoretical analysis and solution of the existing problems, and the evaluation of the outcome of the case: the first part is the presentation of the case, which mainly summarizes the origin and context of the case. At the same time, the author enumerates the main controversial focus of the prosecution and defense, which leads to the legal issues to be discussed by the author in this case. The second part is followed by the legal problems caused by the first part. In particular, the scope of the contract, the understanding of fraud, the determination of the amount of crime and the determination of the purpose of "illegal possession" in the cognizance of the contract in dispute between the prosecution and the defense are analyzed in a systematic way in the light of a variety of theories in the field of criminal law. Focus on the defendant Zhang Wenbo from the objective and subjective aspects of sorting out the distinction between crime and non-crime. At the same time, the relationship between this crime and the crime of loan fraud in this case is simply discussed; the third part is the evaluation of the outcome of the case, which is divided into two parts: theoretical summary and judgment evaluation. The theoretical summary part mainly from the theory of criminal law applied in this paper combined with the specific case to make a inductive summary of the case; the judgment analysis part mainly aimed at the Hepu County people's Court to make a simple response to the judgment of this case. This article starts with the real case of Zhang Wenbo's crime of contract fraud, leads to many difficult problems in the judicial practice of the crime of contract fraud, and through solving the difficult problems in this case, combining the legislative purpose and judicial practice, This paper attempts to sort out the problems existing in the theory and practice of the crime of contract fraud, and carries on a more in-depth legal analysis in order to guide the judicial practice.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.3;D920.5
【引证文献】
相关硕士学位论文 前1条
1 吴莹;廖国万合同诈骗案研究[D];黑龙江大学;2013年
，本文编号：2467719
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