论骗购保障房行为的刑法规制

发布时间：2018-03-06 09:20

本文选题：骗购保障房　切入点：诈骗罪　出处：《湘潭大学》2014年硕士论文　论文类型：学位论文

【摘要】：骗购保障房行为的概念为非低收入群体的直接申请人为侵占保障房这一国家福利而采取弄虚作假、隐瞒真相的手段，有个人单独运作和团伙合作两种方式的骗购行为。对于本属于低收入群体的福利被侵占以致其生存环境恶劣得不到应有的改善，本文认为其社会危害性已经达到了严重的程度。如果不追究其罪刑，则刑法的惩罚功能和预防功能得不到实现。所以对其追究刑事责任是必要的，但是在现有刑法体系中定以诈骗罪的罪名进行处罚不妥，因为诈骗罪以较大数额为定罪要件之一，而在骗购保障房行为中的具体数额如何认定有争议；保障房作为不动产，与同地段的商品房的差价以万计，一旦定罪则会处以十年以上的有期徒刑或无期徒刑，对其打击力度过于严厉；再有，诈骗罪的行为模式中受骗人为具有处分权限并做出了交付或者处分行为，开发商才为处分人。对于增设骗购保障房罪也不妥，本文认为增设骗取社会福利罪为最适宜，保障房本质上作为一种社会福利，虽然骗购保障房行为侵犯了国家的利益，但是主要侵犯的是国家对社会福利的管理秩序。同时可以解决数额难以认定的难题。对利用法律漏洞和审核资料人员的疏忽大意而获利的人员同样进行处罚，不放过一个犯罪分子。增设社会福利罪从四个构成要件出发。主体为年满16周岁的自然人和单位。对政府机关集体骗购保障房的行为，其危害性更为严重，所以单位中应包括政府机关，对直接负责的主管人员和直接责任人做出从重处罚。主观方面为故意，不存在过失犯罪，故意中包括直接故意和间接故意。政府机关人员的骗购行为有骗购的故意，，也有渎职的故意，对一个行为触犯了两种罪名，直接定为渎职罪。本罪的客体为国家对社会福利的管理秩序。保障房作为一种社会福利，与低保、医保、廉租房、限价房一样都为社会福利，虽然侵犯了国家的财产利益，但是其主要侵犯的是国家对福利制度的侵犯。客观方面为行为人采取弄虚作假、隐瞒真相的手段，因为国家福利的获取一般为书面资料的审核。骗取社会福利的行为可以由个人单独运作，也可以由团伙合作获取社会福利。团伙合作具有完整的犯罪链条，其社会危害性更为严重，对其头目应予以加重处罚。
[Abstract]:The concept of buying indemnificatory apartment's behavior is that direct applicants from non-low-income groups, in order to encroach on indemnificatory apartment's national welfare, resort to fraudulent means to conceal the truth. There are individuals working alone and groups of people working together in two ways to cheat... When the welfare of the low-income group is encroached upon and their living environment is not improved as it should be, This article holds that its social harmfulness has reached a serious degree. If it is not investigated for its crime and punishment, the function of punishment and prevention of criminal law will not be realized. Therefore, it is necessary to investigate its criminal responsibility. However, it is inappropriate to punish the crime of fraud in the existing criminal law system, because the crime of fraud is one of the elements of conviction with a large amount of money, and how to determine the specific amount in the act of cheating indemnificatory apartment is controversial; indemnificatory apartment, as a real estate, The price difference between commercial housing in the same area is tens of thousands. Once convicted, it will be sentenced to imprisonment of not less than 10 years or life imprisonment, which is too hard to crack down on; moreover, In the behavior mode of fraud crime, the deceived person has the authority to deal with the crime and has made the delivery or punishment behavior, the developer is the punishment person. For the crime of cheating and buying indemnificatory apartment is also inappropriate, this article thinks that the most appropriate crime is to add the crime of obtaining social welfare by fraud. Indemnificatory apartment is essentially a kind of social welfare, even though the purchase of indemnificatory apartment infringes the interests of the country. But the main violation is the state's order of administration of social welfare. At the same time, it can solve the difficult problem that the amount is difficult to determine. Those who take advantage of the loopholes in the law and the carelessness of the audit personnel are also punished. From the four constitutive elements, the main body of the crime is natural persons and units who have reached the age of 16. It is even more harmful to the government organs to deceive and buy indemnificatory apartment collectively. Therefore, the unit should include government organs and impose heavier penalties on the directly responsible persons in charge and those directly responsible. The subjective aspect is intentional and there is no negligent crime. Intention includes direct intent and indirect intent. The fraud and purchase behavior of government organ personnel has the intention of cheating and dereliction of duty. For one act, there are two kinds of crimes. As a direct crime of dereliction of duty. The object of this crime is the management order of the state's social welfare. Indemnificatory apartment, as a kind of social welfare, as a kind of social welfare, as a minimum, medical insurance, low-rent housing, and price-limited housing, is also a social welfare, although it violates the property interests of the state. But its main violation is the violation of the welfare system by the state. Objectively, it takes the means of fraud and concealment of the truth for the perpetrator. Because the acquisition of state welfare is generally an examination of written information. The act of defrauding social welfare can be operated by individuals alone, or groups can cooperate to obtain social welfare. Gang cooperation has a complete criminal chain. Its social harm is more serious, its leader should be heavier punishment.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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