诈骗罪中的处分行为研究
发布时间：2018-10-31 18:31
【摘要】：实践中,诈骗罪的认定存在一定的难度,究其原因,主要在于对诈骗罪中处分行为的把握出现一定程度的偏差。从而导致了盗窃与欺诈相互交织的刑事案件得不到准确的定罪和量刑,这就在一定程度上损害了法的安定性、统一性和国民的预测可能性。盗窃罪与诈骗罪都是司法实践中多发的案件类型,划清二者间的界限,求得定罪与量刑标准的统一,已经成为刑事审判工作的当务之急。本文通过阐明处分行为的一系列构成要件及其内涵,划清了盗窃罪与诈骗罪的界限,以期对准确定罪和量刑以及增强司法活动的科学性、权威性和一致性有所裨益。 本文总共分为五章,第一章的内容是处分行为的概述,包括处分行为的概念及内涵、处分行为作为构成要件的必要性、处分行为的域外立法考察；第二章从主客观两个方面详细介绍了处分行为的主要构成要素,包括处分行为的实施主体、处分意识、直接性要件；第三章介绍了处分行为的具体表现形式；第四章明确了几种特殊情况下处分行为的判断,包括三角诈骗、无钱食宿、欺骗他人放弃财物；最后一章的内容则是在前文的基础上,提出的几点在认定处分行为过程中需要特别注意的问题。 第二章的内容是本文的重点,系统阐述了处分行为的主要构成要件及其内涵,明确了处分行为的成立,必须结合受骗者的主客观要素进行综合判断,要求受骗者主观上具有处分的意思,客观上实施了转移占有的行为。
[Abstract]:In practice, it is difficult to identify the crime of fraud. The main reason is that there is a certain degree of deviation in the grasp of the punishment in the crime of fraud. As a result, the criminal cases of theft and fraud intertwined without accurate conviction and sentencing, which to some extent damaged the stability of the law, unity and the possibility of national prediction. Larceny and fraud are the multiple types of cases in judicial practice. It has become an urgent task to draw a clear line between the two and to obtain the unity of conviction and sentencing standards. By expounding a series of constitutive elements and their connotations of disciplinary action, this paper makes a clear distinction between the crime of larceny and the crime of fraud, with a view to determining the crime and sentencing and enhancing the scientific nature of the judicial activities, which is beneficial to the authority and consistency. This article is divided into five chapters, the first chapter is a summary of the disposition behavior, including the concept and connotation of the disposition act, the necessity of the disposition act as a constituent element, the extraterritorial legislative investigation of the disposition act; The second chapter introduces the main components of the disciplinary action from the subjective and objective aspects, including the implementation of the disciplinary action, disciplinary awareness, direct elements, the third chapter introduces the specific forms of the punishment behavior; The fourth chapter clarifies the judgment of some special cases, including triangle fraud, lack of money, food and accommodation, cheating others to give up property; The content of the last chapter is on the basis of the above, several points need special attention in the process of determining the disciplinary action. The content of the second chapter is the focus of this paper. The main elements and connotation of the disposition behavior are systematically expounded, and the establishment of the punishment behavior is clarified. It must be combined with the subjective and objective elements of the deceived person to make a comprehensive judgment. The deceiver is required to have the intention of disposition subjectively and objectively to carry out the act of transferring possession.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924.35
本文编号：2303172
[Abstract]:In practice, it is difficult to identify the crime of fraud. The main reason is that there is a certain degree of deviation in the grasp of the punishment in the crime of fraud. As a result, the criminal cases of theft and fraud intertwined without accurate conviction and sentencing, which to some extent damaged the stability of the law, unity and the possibility of national prediction. Larceny and fraud are the multiple types of cases in judicial practice. It has become an urgent task to draw a clear line between the two and to obtain the unity of conviction and sentencing standards. By expounding a series of constitutive elements and their connotations of disciplinary action, this paper makes a clear distinction between the crime of larceny and the crime of fraud, with a view to determining the crime and sentencing and enhancing the scientific nature of the judicial activities, which is beneficial to the authority and consistency. This article is divided into five chapters, the first chapter is a summary of the disposition behavior, including the concept and connotation of the disposition act, the necessity of the disposition act as a constituent element, the extraterritorial legislative investigation of the disposition act; The second chapter introduces the main components of the disciplinary action from the subjective and objective aspects, including the implementation of the disciplinary action, disciplinary awareness, direct elements, the third chapter introduces the specific forms of the punishment behavior; The fourth chapter clarifies the judgment of some special cases, including triangle fraud, lack of money, food and accommodation, cheating others to give up property; The content of the last chapter is on the basis of the above, several points need special attention in the process of determining the disciplinary action. The content of the second chapter is the focus of this paper. The main elements and connotation of the disposition behavior are systematically expounded, and the establishment of the punishment behavior is clarified. It must be combined with the subjective and objective elements of the deceived person to make a comprehensive judgment. The deceiver is required to have the intention of disposition subjectively and objectively to carry out the act of transferring possession.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924.35
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