论犯罪“数额”与金融诈骗罪的定罪量刑

On Criminal Amount with Convictions and Sentencing of Financial Fraud Crimes

我国的司法机关在解释金融诈骗罪的数额时,以行为人实际骗取的数额作为犯罪成立的标准,这与犯罪是对法益的侵害原理不符。根据法益侵害原则,金融诈骗罪中的数额应当理解受害人因被诈骗而损失的数额;金融诈骗罪未遂时的数额,则应当理解为犯罪行为指向的数额。刑法规定,部分金融诈骗罪数额特别巨大并且造成特别重大损失最高刑为死刑,这里的特别重大损失应当指犯罪数额以外的间接损失,而不是犯罪数额以内的未挽回的损失。

Some judicial interpretations think that the amount of financial fraud crimes is those of being cheated by criminals. However, it is unconformity with the principle that crime is an invasion to legal interest in itself. According to the principle of legal interest, the amount of financial fraud crimes is those of victim＇ s loss, and the amount of financial fraud attempt is those of malefaction pointing to. Criminal law stipulates that especial immensity of amount and special momentousness of loss are conditions of death penalty to financial fraud crime. Special momentousness of loss means loss except criminal amount, but not loss in criminal amount which is not being redemptive.