“风险”视阈下金融诈骗罪与诈骗罪竞合探析
发布时间：2018-07-30 06:52
【摘要】：金融诈骗罪与诈骗罪之间竞合问题的争议,从最初的法条竞合论中的重法补充适用与特别法优先适用,发展到大竞合论、想象竞合论,在处理两罪之间的关系时从理论上已经无法得出一个较为明确的答案,并因此导致实践中产生了许多的困惑,且进一步发展将会导致公信力的降低。为解决该问题,寻求两罪关系的处理方案,本文从金融诈骗罪与诈骗罪之间的实体关系入手,分析出两罪之间的特别与一般的关系,在分割的界限上其实并不分明,存在一种过渡性行为,因而导致原对于两罪关系的认识实际上存在一些偏差,甚至有学者认为特别法并不具有减轻根据,主张适用重法定罪量刑。实际上从理论的分析中,矛盾的争议焦点并非是两罪之间关系的明确与该种关系处理方案的确定,而是对于罪刑设置合理性的质疑,因而本文选择以罪刑设置的合理性为关键点进行分析。关于金融诈骗罪罪刑设置的合理性,从金融诈骗罪具有的金融方面的特点入手,分析出金融诈骗罪实际上是一种对于金融管理秩序的损害,而这种管理秩序的损害又具体体现为对风险秩序的损害上,风险作为金融的特征之一,体现为收益或者损失的不确定性,因此如若没发生金融诈骗行为,被害人的财产权益也并不会受到周严的保护,金融领域的财产损失与当事人对收益追求有着必然的关联,因此财产损失在金融诈骗罪中的可责罚性并没有诈骗罪那么高。从风险的另一角度进行分析,风险秩序的破坏必然伴随着财产权益的破坏,两者之间的关系决定在金融诈骗罪的处理中财产权益是属于风险秩序的一部分,因此对于财产权益的保护并非金融诈骗罪的法益,只是风险秩序的一种表象。在以非法占有为目的上,金融诈骗罪也表现出于诈骗罪相区别的地方,两者所指的非法所有的目的应当进行区分,将金融诈骗罪的非法占有为目的认定为广义上的。在实践上也存在相印证的事实,首先从刑期的设置上,观察出金融诈骗罪的法定刑均低于诈骗罪的法定刑,从具体的案例中进一步观察发现,金融诈骗罪在犯罪金额的计算上与诈骗罪存在明显的区别,金融诈骗罪更为注重因犯罪行为所带来的实际损失,此点是风险增加的具体体现。从法益方面,金融诈骗罪项下各罪名均存在不同的表现形式,但总结各表现均是围绕风险秩序法益在变化。以非法占有为目的在实践验证上也符合了上述认定结论,但针对各罪名特点,在各罪名中表现形式不同,部分犯罪并非以所有为目的,而部分犯罪必然以所有为目的,这是由于金融项下也细分有融资、证券、保险等领域,在各领域具有不同的特点所致。从上述的理论与现象之中,可以得出结论,即金融诈骗罪与诈骗罪不可能成立想象竞合关系,而只是法条竞合关系,金融诈骗罪的罪刑设置合理,因而应当遵循特别法优于一般法的规定,但是在具体问题的处理上,为达到罪刑相适应,对于过渡性行为的处理上应当在坚持以特别法定罪的基础上,在量刑上适当从重,且同金额诈骗罪的量刑幅度为限。对于金融诈骗罪非法占有为目的进一步的改进意见上,提出了应当将资金链断裂等高风险信息披露义务法定化,并逐步减轻金融诈骗罪的法定刑。
[Abstract]:The dispute between the concurrence of the crime of financial fraud and the crime of fraud, from the original law of law competition, the heavy method of supplementary application and the special law precedence, the development to the great concurrence theory, the imaginative concurrence theory, can not get a more definite answer in theory when dealing with the relationship between the two crimes, and thus lead to a lot of practice. The confusion and further development will lead to the reduction of the credibility. In order to solve the problem, to seek the solution of the relationship between the two crimes, this article starts with the substantive relationship between the crime of financial fraud and the crime of fraud, and analyzes the special and general relationship between the two crimes, which is not clear on the dividing line, and therefore there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional act. In fact, there are some deviations in the original understanding of the relationship between the two crimes, and even some scholars believe that the special law does not have the basis of mitigation, and advocates the application of heavy law conviction and sentencing. In fact, from the theoretical analysis, the focus of the dispute is not the definition of the relationship between the two crimes and the determination of the relationship treatment scheme, but the setting of crime and punishment. The rationality of this article is the key point in the analysis of the rationality of the crime setting. The rationality of the crime and punishment of the crime of financial fraud, from the financial aspects of the financial fraud, is a kind of damage to the financial management order, and the damage of this kind of management order is also analyzed. As one of the characteristics of the risk order, the risk is one of the characteristics of the finance, which is reflected in the uncertainty of the income or loss. Therefore, if there is no financial fraud, the property rights and interests of the victim will not be protected by the week strict. The property loss of the financial field has an inevitable connection with the parties' pursuit of income. This property loss in the crime of financial fraud is not as high as the crime of fraud. From another point of view of the risk, the damage of the risk order must be accompanied by the destruction of the property rights and interests. The relationship between the two determines that property rights and interests are part of the risk order in the treatment of the crime of financial fraud. The protection of interest is not the legal benefit of the crime of financial fraud, but a manifestation of the risk order. In the case of illegal possession, the crime of financial fraud is also shown out of the place where the crime of fraud is distinguished. The illegal purposes of the two should be distinguished, and the non legal possession of the crime of financial fraud is defined as a broad sense. There is also an evidence of the fact that the legal punishment of the crime of financial fraud is lower than the legal punishment of the crime of fraud. From the specific case, it is found that the crime of financial fraud is distinctly different from the crime of fraud in the calculation of the amount of the crime. This point is the concrete embodiment of the increase of risk. From the legal interest, there are different forms of expression in all the crimes under the crime of financial fraud, but all the manifestations are around the change of the legal interest of the risk order. The purpose of illegal possession is also consistent with the above conclusion, but in accordance with the characteristics of each crime, it is shown in the various charges. In different forms, part of the crime is not for all purposes, and part of the crime is bound to be all for the purpose. It is due to the subdivision of finance, securities, insurance and other fields, which have different characteristics in various fields. From the theory and phenomenon mentioned above, it can be concluded that the crime of financial fraud and the crime of fraud can not be established. To imagine the relationship between competition and concurrence, the crime and punishment of the crime of financial fraud are set reasonably, so the special law should be followed by the provisions of the general law. However, in the treatment of the specific problems, in order to adapt to the crime, the handling of the transitional behavior should be carried out on the basis of the special legal crime and the proper punishment on the sentencing. And the scope of sentencing of the crime of the same amount of fraud is limited. On the further improvement of the purpose of the illegal possession of the crime of financial fraud, it is proposed that the obligation of high risk information disclosure should be legalized and the legal punishment of the crime of financial fraud should be gradually reduced.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2154195
[Abstract]:The dispute between the concurrence of the crime of financial fraud and the crime of fraud, from the original law of law competition, the heavy method of supplementary application and the special law precedence, the development to the great concurrence theory, the imaginative concurrence theory, can not get a more definite answer in theory when dealing with the relationship between the two crimes, and thus lead to a lot of practice. The confusion and further development will lead to the reduction of the credibility. In order to solve the problem, to seek the solution of the relationship between the two crimes, this article starts with the substantive relationship between the crime of financial fraud and the crime of fraud, and analyzes the special and general relationship between the two crimes, which is not clear on the dividing line, and therefore there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional act. In fact, there are some deviations in the original understanding of the relationship between the two crimes, and even some scholars believe that the special law does not have the basis of mitigation, and advocates the application of heavy law conviction and sentencing. In fact, from the theoretical analysis, the focus of the dispute is not the definition of the relationship between the two crimes and the determination of the relationship treatment scheme, but the setting of crime and punishment. The rationality of this article is the key point in the analysis of the rationality of the crime setting. The rationality of the crime and punishment of the crime of financial fraud, from the financial aspects of the financial fraud, is a kind of damage to the financial management order, and the damage of this kind of management order is also analyzed. As one of the characteristics of the risk order, the risk is one of the characteristics of the finance, which is reflected in the uncertainty of the income or loss. Therefore, if there is no financial fraud, the property rights and interests of the victim will not be protected by the week strict. The property loss of the financial field has an inevitable connection with the parties' pursuit of income. This property loss in the crime of financial fraud is not as high as the crime of fraud. From another point of view of the risk, the damage of the risk order must be accompanied by the destruction of the property rights and interests. The relationship between the two determines that property rights and interests are part of the risk order in the treatment of the crime of financial fraud. The protection of interest is not the legal benefit of the crime of financial fraud, but a manifestation of the risk order. In the case of illegal possession, the crime of financial fraud is also shown out of the place where the crime of fraud is distinguished. The illegal purposes of the two should be distinguished, and the non legal possession of the crime of financial fraud is defined as a broad sense. There is also an evidence of the fact that the legal punishment of the crime of financial fraud is lower than the legal punishment of the crime of fraud. From the specific case, it is found that the crime of financial fraud is distinctly different from the crime of fraud in the calculation of the amount of the crime. This point is the concrete embodiment of the increase of risk. From the legal interest, there are different forms of expression in all the crimes under the crime of financial fraud, but all the manifestations are around the change of the legal interest of the risk order. The purpose of illegal possession is also consistent with the above conclusion, but in accordance with the characteristics of each crime, it is shown in the various charges. In different forms, part of the crime is not for all purposes, and part of the crime is bound to be all for the purpose. It is due to the subdivision of finance, securities, insurance and other fields, which have different characteristics in various fields. From the theory and phenomenon mentioned above, it can be concluded that the crime of financial fraud and the crime of fraud can not be established. To imagine the relationship between competition and concurrence, the crime and punishment of the crime of financial fraud are set reasonably, so the special law should be followed by the provisions of the general law. However, in the treatment of the specific problems, in order to adapt to the crime, the handling of the transitional behavior should be carried out on the basis of the special legal crime and the proper punishment on the sentencing. And the scope of sentencing of the crime of the same amount of fraud is limited. On the further improvement of the purpose of the illegal possession of the crime of financial fraud, it is proposed that the obligation of high risk information disclosure should be legalized and the legal punishment of the crime of financial fraud should be gradually reduced.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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