合同诈骗罪认定的困惑——兼谈商法之独立

Confusion about the Determination of Crime of Swindling a Contract

1999年《合同法》颁布后,合同的类型及其订立方式趋于多样化,然而我国立法对《合同法》与《刑法》的协调性关注不够,这给实践中区分合同诈骗罪与诈骗罪带来较大困难。本文试图从民商分立的角度,论述合同诈骗罪与诈骗罪是发生于两个不同领域的犯罪;并从商行为的构成特点入手,为区分两类犯罪提出建议,最终得出商法应独立的主张。

After 1999＇s Law of Contract was issued, the contract＇s kind has become varied. However, our legislation gives little accordance to Law of Contract and Criminal Law, which brings great difficulty in distinguishing crime of swindling a contract and crime of swindling. The article, from the angle of the seperation of civile and commerce, attempts to discuss that they are two different kinds of crime, and from the character of commercial act, brings out its suggestion, and finally concludes that the commercial law should be independent.