票据诈骗罪若干疑难问题探讨

On Several Problems of Fraud on Commercial Instrument

票据诈骗罪中的非法占有目的应采排除权利人意思说。对非法占有目的的推定必须结合票据诈骗罪的实际情况,在坚持必要的前置调查取证和主客观相一致的司法推定原则的基础上,同时参照最高法院相关司法解释并通过排除合理怀疑和保障被告人权利方面进行有效推定。票据诈骗罪应以被害人所受损失数额说作为既遂标准,其中数额基本犯不存在未遂的情形,数额加重犯存在未遂的情形。

In fraud on commercial instrument, the right owner＇s will theory should be eliminated from the purpose of illegal possession. When inferring the purpose the reality of the fraud must be considered and the judicial principle of investigating and collecting evidence previously must be insisted; at the same time, the judicial explanation of the Supreme Court should be taken as a reference and the inference can be done effectively through clearing reasonable suspicion and ensuring the defendant＇s rights. Fraud on commercial instrument should take the amount of the victim＇s loss as the accomplishment standard, while the defender who reaches the basic amount has no possibility of unaccomplishment and the defender who is involved in a large amount has the possibility of unaccom-plishment.