论合同诈骗罪的司法认定
发布时间：2018-11-15 06:42
【摘要】：随着市场经济的快速发展，合同的重要性显现得越发的突出。市场经济社会的实质就是契约关系社会。经济社会中的市场主体通过合同建立、变更、终止相互之间的关系。在我国刑法立法之初，并没有把合同诈骗犯罪独立的规定为犯罪，而是将其归属于诈骗罪之中。这与当时的社会背景有着莫大的关系，因为当时我国实行的是计划经济，合同的适用也就没有像在市场经济中适用得那么的高频率、扩大化、多元化等。随着我国迈入市场经济，改革开放的大浪潮，合同的地位也越发的凸显。1997年修订后的刑法第一次把合同诈骗罪规定为独立的罪名。所谓的合同诈骗罪，就是以非法占有为目的，在合同签订或履行的过程中，编造虚假信息或者隐瞒真实情况，骗取对方财物的行为。随着社会经济的不断发展，，合同逐渐的变得多元化。许多不法分子抓住合同的漏洞，利用合同进行诈骗，骗取公私财物，扰乱市场的健康运行。由于合同自身的一些特点，使其与财产型犯罪，金融犯罪具有某些相似性。在司法实践中难以区分，给该罪的认定带来了困难。本文通过一个真实案例为对象，运用相关的法律规范和理论，对合同诈骗罪的司法认定进行分析。希望对合同诈骗罪的认定与防范有些裨益。 本文约一万七千余字，分为四大部分： 第一部分是案件情况的基本介绍，然后根据案件的情况阐述不同的分歧意见，在分歧意见的基础上对争议焦点进行归纳总结。争议焦点主要包括对吴某诈骗行为的定性以及罪数的确定。 第二部分是法理分析,笔者首先对合同诈骗罪进行了一个理论上的界定，然后从主客观相关构成要件对合同诈骗罪与民事欺诈、职务侵占罪、侵占罪、票据诈骗罪进行了分析和甄别。其次，对合同诈骗罪与票据诈骗罪的竞合和牵连进行了阐述，总结出两罪之间构成竞合与牵连的前提和条件。 第三部分是本案的研究结论，结合第二部分的法理分析，对本案中吴某的诈骗行为以及其利用假支票履行合同的行为进行定性。根据合同诈骗罪的相关理论分析，吴某的行为构成合同诈骗罪。另外，结合法条竞合与牵连犯的理论，吴某的行为构成一罪。 第四部分是本案的研究启示，对整个论文的一个扩展和升华，从中得出启示，提出建议。笔者根据本案的诸多案件情况提出了合同诈骗罪分别在合同签订阶段和履行阶段的防范措施。
[Abstract]:With the rapid development of market economy, the importance of contract is becoming more and more prominent. The essence of market economy society is contract relation society. Economic and social market subjects through the establishment of contracts, change, and end the relationship between each other. At the beginning of our country's criminal law legislation, the crime of contract fraud was not defined as a crime, but classified as a crime of fraud. This has a great relationship with the social background at that time, because at that time our country implemented the planned economy, and the application of the contract was not as high frequency, expansion, diversification and so on as it was applicable in the market economy. Along with our country steps into the market economy, the big tide of reform and opening up, the status of contract is more and more prominent. After 1997, the revised criminal law stipulates the crime of contract fraud as an independent crime for the first time. The so-called crime of contract fraud is the act of fabricating false information or concealing the truth of the other party's property in the process of signing or performing the contract with the purpose of illegal possession. With the development of social economy, the contract becomes diversified gradually. Many lawbreakers seize the loopholes of the contract, use the contract to defraud public and private property, and disrupt the healthy operation of the market. Because of some characteristics of contract itself, it is similar to property crime and financial crime. In judicial practice, it is difficult to distinguish the crime. Through a real case, this paper analyzes the judicial cognizance of the crime of contract fraud by using relevant legal norms and theories. It is hoped that the determination and prevention of the crime of contract fraud will be of some benefit. This paper is about 17000 words, which is divided into four parts: the first part is the basic introduction of the case, then according to the situation of the case to elaborate different opinions, on the basis of different opinions to summarize the focus of the dispute. The focus of the dispute mainly includes the characterization of Wu's fraud and the determination of the number of crimes. The second part is the legal theory analysis, the author first carries on a theoretical definition to the contract fraud crime, then from the subjective and objective related constituent elements to the contract fraud crime and the civil fraud, the duty embezzlement crime. The crime of bill fraud is analyzed and identified. Secondly, it expounds the concurrence and implication of the crime of contract fraud and the crime of bill fraud, and sums up the premise and condition of the constitution of the competition and implication between the two crimes. The third part is the conclusion of the case, combined with the second part of the legal analysis of the case, Wu's fraud and its use of fake cheques to perform the contract qualitative. According to the relevant theoretical analysis of the crime of contract fraud, Wu's behavior constitutes the crime of contract fraud. In addition, combined with the theory of competing articles and implicated offense, Wu's behavior constitutes a crime. The fourth part is the inspiration of the case, an expansion and sublimation of the whole paper, from which to draw inspiration and put forward suggestions. According to many cases in this case, the author puts forward the preventive measures of the crime of contract fraud in the stage of contract signing and the stage of performance respectively.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3;D920.5
本文编号：2332428
[Abstract]:With the rapid development of market economy, the importance of contract is becoming more and more prominent. The essence of market economy society is contract relation society. Economic and social market subjects through the establishment of contracts, change, and end the relationship between each other. At the beginning of our country's criminal law legislation, the crime of contract fraud was not defined as a crime, but classified as a crime of fraud. This has a great relationship with the social background at that time, because at that time our country implemented the planned economy, and the application of the contract was not as high frequency, expansion, diversification and so on as it was applicable in the market economy. Along with our country steps into the market economy, the big tide of reform and opening up, the status of contract is more and more prominent. After 1997, the revised criminal law stipulates the crime of contract fraud as an independent crime for the first time. The so-called crime of contract fraud is the act of fabricating false information or concealing the truth of the other party's property in the process of signing or performing the contract with the purpose of illegal possession. With the development of social economy, the contract becomes diversified gradually. Many lawbreakers seize the loopholes of the contract, use the contract to defraud public and private property, and disrupt the healthy operation of the market. Because of some characteristics of contract itself, it is similar to property crime and financial crime. In judicial practice, it is difficult to distinguish the crime. Through a real case, this paper analyzes the judicial cognizance of the crime of contract fraud by using relevant legal norms and theories. It is hoped that the determination and prevention of the crime of contract fraud will be of some benefit. This paper is about 17000 words, which is divided into four parts: the first part is the basic introduction of the case, then according to the situation of the case to elaborate different opinions, on the basis of different opinions to summarize the focus of the dispute. The focus of the dispute mainly includes the characterization of Wu's fraud and the determination of the number of crimes. The second part is the legal theory analysis, the author first carries on a theoretical definition to the contract fraud crime, then from the subjective and objective related constituent elements to the contract fraud crime and the civil fraud, the duty embezzlement crime. The crime of bill fraud is analyzed and identified. Secondly, it expounds the concurrence and implication of the crime of contract fraud and the crime of bill fraud, and sums up the premise and condition of the constitution of the competition and implication between the two crimes. The third part is the conclusion of the case, combined with the second part of the legal analysis of the case, Wu's fraud and its use of fake cheques to perform the contract qualitative. According to the relevant theoretical analysis of the crime of contract fraud, Wu's behavior constitutes the crime of contract fraud. In addition, combined with the theory of competing articles and implicated offense, Wu's behavior constitutes a crime. The fourth part is the inspiration of the case, an expansion and sublimation of the whole paper, from which to draw inspiration and put forward suggestions. According to many cases in this case, the author puts forward the preventive measures of the crime of contract fraud in the stage of contract signing and the stage of performance respectively.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3;D920.5
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