诈骗罪财产处分行为研究
发布时间：2018-11-14 12:48
【摘要】：摘要：以往在司法实践中,判断诈骗罪通常将目光聚焦于欺骗行为,以欺骗手段非法获取财产的行为即诈骗行为。随着社会经济的不断发展,财产犯罪的方式日益复杂化,刑法理论对诈骗罪的研究也在逐步深入。一方面,成立诈骗罪不仅要求欺骗行为,而且需要财产处分行为,且基于自愿的财产处分行为是诈骗罪区分于其他犯罪的独有特征(已得到广泛认同)。另一方面,对法人、机器是否具有财产处分的资格,不动产、财产性利益能否成为财产处分的对象等问题存在争议。 首先,处分行为者的范围与资格是受到限制的。以能否陷入错误认识为标准,否定幼儿、严重精神病患者、法人、机器等缺乏认识能力或者认识可能性的人成为处分者。另外,没有处分权限的人也不能作为处分行为的实施者。其次,财产处分行为的构成是重点讨论的部分。处分的对象包括无体物、违禁品、财产性利益等,处分行为的方式有作为与不作为两种形式。针对财产性利益、不动产和不完全基于错误认识的处分行为,有其特殊的表现形式。处分行为与错误认识间具有心理上的因果联系,处分行为与财产损失之间应当存在直接联系,即处分行为之后无需其他违法行为就能造成财产损失。最后,处分意思是财产处分行为的必要条件。处分意思由认识、意志两方面组成,其中对财产的认识程度上,对财产性质的认识是必要的,无须认识到具体数量、价值,对财产种类的认识则需要根据社会经验具体判断。处分意志是行为人处分行为的自愿性、自发性和自然性。本文针对一些长期争论的问题以及理论上没有注意到的问题,提出了创新性意见。对于处分行为人的资格,认为法律和合同能够赋予某些本不具有处分资格的人处分权限,从而使之成为受骗者。处分行为与错误认识之间的因果联系应当是直接的、决定性的,并非只要陷入错误认识并处分财产就能作为诈骗罪中的处分行为看待。对财产性利益的处分不同于对普通财物的处分：基于财产性利益的特点,处分财产性利益并不需要实际交付或者登记,只要受骗者基于错误认识做出意思表示即可,当然,这种意思表示的结果是能够最终导致财产损失的。
[Abstract]:Absrtact: in the past judicial practice, the judgment of fraud crime usually focuses on deceptive behavior, the act of obtaining property illegally by deception is fraud. With the development of society and economy, the way of property crime is becoming more and more complicated. On the one hand, the establishment of the crime of fraud requires not only deceptive behavior, but also property disposition, and based on voluntary disposition of property, it is the unique characteristic of fraud to distinguish it from other crimes (which has been widely accepted). On the other hand, whether the legal person, the machine has the property disposition qualification, the immovable property, the property interest can become the property disposition object and so on. First of all, the scope and qualifications of the offenders are limited. Based on the criterion of whether or not to fall into wrong cognition, people who lack the cognitive ability or the possibility of cognition, such as children, severe psychopath, legal person, machine and so on, are punished. In addition, the person who does not have the sanction authority also cannot act as the punishment perpetrator. Secondly, the composition of property disposition is the key part of the discussion. The objects of punishment include incorporeal objects, contraband goods, property interests and so on. There are special forms of property interests, immovable property and disposition based on false cognition. There is a psychological causal relationship between disposition and misconception, and there should be a direct connection between disposition and property loss, that is, property loss can be caused after punishment without other illegal acts. Finally, disposition is the necessary condition of property disposition. The intention of disposition consists of two aspects: cognition and will, in which it is necessary to recognize the nature of property to the degree of understanding of property, not to recognize the specific quantity and value, but to judge the type of property according to social experience. Disposition will is the volition, spontaneity and naturalness of the behavior of punishment. In this paper, some innovative suggestions are put forward in view of some long-debated problems and problems that have not been paid attention to in theory. As to the qualification of the punishment perpetrator, the law and the contract can give some people who do not have the disposition the authority to punish, thus make them become the deceiver. The causal relationship between punishment and misconception should be direct and decisive, and not be regarded as punishment in the crime of fraud as long as we fall into wrong understanding and dispose of property. The disposition of property interests is different from the disposition of ordinary property: based on the characteristics of property interests, disposition of property interests does not require actual delivery or registration, as long as the deceived person makes an expression of intention based on wrong understanding, of course, The result of this expression of will can eventually lead to property loss.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.35
本文编号：2331200
[Abstract]:Absrtact: in the past judicial practice, the judgment of fraud crime usually focuses on deceptive behavior, the act of obtaining property illegally by deception is fraud. With the development of society and economy, the way of property crime is becoming more and more complicated. On the one hand, the establishment of the crime of fraud requires not only deceptive behavior, but also property disposition, and based on voluntary disposition of property, it is the unique characteristic of fraud to distinguish it from other crimes (which has been widely accepted). On the other hand, whether the legal person, the machine has the property disposition qualification, the immovable property, the property interest can become the property disposition object and so on. First of all, the scope and qualifications of the offenders are limited. Based on the criterion of whether or not to fall into wrong cognition, people who lack the cognitive ability or the possibility of cognition, such as children, severe psychopath, legal person, machine and so on, are punished. In addition, the person who does not have the sanction authority also cannot act as the punishment perpetrator. Secondly, the composition of property disposition is the key part of the discussion. The objects of punishment include incorporeal objects, contraband goods, property interests and so on. There are special forms of property interests, immovable property and disposition based on false cognition. There is a psychological causal relationship between disposition and misconception, and there should be a direct connection between disposition and property loss, that is, property loss can be caused after punishment without other illegal acts. Finally, disposition is the necessary condition of property disposition. The intention of disposition consists of two aspects: cognition and will, in which it is necessary to recognize the nature of property to the degree of understanding of property, not to recognize the specific quantity and value, but to judge the type of property according to social experience. Disposition will is the volition, spontaneity and naturalness of the behavior of punishment. In this paper, some innovative suggestions are put forward in view of some long-debated problems and problems that have not been paid attention to in theory. As to the qualification of the punishment perpetrator, the law and the contract can give some people who do not have the disposition the authority to punish, thus make them become the deceiver. The causal relationship between punishment and misconception should be direct and decisive, and not be regarded as punishment in the crime of fraud as long as we fall into wrong understanding and dispose of property. The disposition of property interests is different from the disposition of ordinary property: based on the characteristics of property interests, disposition of property interests does not require actual delivery or registration, as long as the deceived person makes an expression of intention based on wrong understanding, of course, The result of this expression of will can eventually lead to property loss.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.35
【参考文献】
相关期刊论文 前10条
1 李世阳;;论诈骗罪中的财产处分行为[J];北京大学研究生学志;2011年02期
2 姜金良;;财产性利益可成为侵犯财产罪的犯罪对象——以盗窃欠条为例[J];滨州职业学院学报;2009年01期
3 周光权,李志强;刑法上的财产占有概念[J];法律科学.西北政法学院学报;2003年02期
4 张明楷;财产性利益是诈骗罪的对象[J];法律科学.西北政法学院学报;2005年03期
5 于改之,周玉华;诉讼诈骗行为的定性及相关问题探究——从诈骗罪之行为结构的考察出发[J];法商研究;2005年04期
6 李翔;;论诈骗犯罪中的财产处分行为[J];法学;2008年10期
7 任海涛;;刑法中的非法占有目的[J];甘肃政法学院学报;2006年06期
8 张红昌;;论诈骗罪中的处分意识[J];湖北警官学院学报;2010年01期
9 张明楷;论三角诈骗[J];法学研究;2004年02期
10 袁博;;论财物类诈骗罪中处分意识的构造[J];中国检察官;2013年12期
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