论不作为诈骗行为的界限

Discussion on the Limits to Nonfeasance Fraud Behavior

对于是否将不作为诈骗予以犯罪化的问题,刑法学界与实务界对其经历了一个从否定到肯定的过程,肯定说成为当下德日刑法的通说。但是,对于不作为诈骗应在何种范围内科以刑罚仍需进一步探讨。不作为诈骗一方面需要和不构成诈骗罪的一般民事欺诈行为区分开来,这涉及诈骗罪犯罪圈的划定,即罪与非罪的问题;另一方面需要和作为的诈骗尤其是默示的举动诈骗区分开来,这关系到行为的准确定性以及诈骗罪构成的不同路径。通过对这两个问题的梳理,使得不作为诈骗的成立范围渐次清晰。

As to whether nonfeasance fraud should be seen as crime, criminal law circle and practice circle have undergone a process from negation to affirmation, and positive theory becomes the general theory in present German and Japanese Criminal Law. However, within what scope should a nonfeasance fraud be punished still needs to be further studied. On the one hand, nonfeasance fraud needs to be distinguished from a general civil fraud that does not constitute a crime, which involves the delimitation of fraud crime, namely the crime and non-crime issues; On the other hand, it needs to be differentiated from active fraud especially implied act fraud, which concerns the accurate definition of criminal behaviors and the constitution of fraud. The scope of the establishment of nonfeasance fraud can gradually become clear by means of combing through these two problems.