欺诈性侦查的概念界定:兼议刑事诉讼法第50条中“欺骗”的含义

Concept Definition of Fraud Investigation: Also Discussion on Implication of “Fraud” in Article 50 under Criminal Procedure Law

欺诈性侦查是一种具有较大争议的侦查行为。对欺诈性侦查进行概念界定时,应考虑概念本身的科学性与可适用性,强调"示假"是欺诈性侦查得以认定的必要条件,从而只将部分具有欺骗色彩的侦查行为视为欺诈性侦查。侦查谋略只是侦查人员智慧的利用,不存在对其进行合法性评价的问题,不宜利用这个概念指称欺诈性侦查。此外,还应当理顺欺诈性侦查与乔装侦查、卧底侦查与技术侦查等概念之间的关系。在对欺诈性侦查进行概念界定的基础上,可以对刑事诉讼法第50条所指的"欺骗"进行合理解释。

Fraud investigation is a kind of controversial investigation behavior. When defining concept of fraud investigation, we need to think out that whether the concept itself is scientific and applicable, underline that ＂to show falseness＂ is the necessary condition in the identification of fraud investigation and further regard part of investigation behavior with features of cheating as fraud investigation. Investigation strategy is decided by use of wisdom of investigation staff and we do not need to conduct legality evaluation on it. It is not suitable to define fraud investigation by use of this concept. Furthermore, we also need to rationalize the relationship of fraud investigation and disguise investigation, undercover investigation and technical investigation. The ＂fraud＂ in article 50 under Criminal Procedure Law can be reasonably explained based on concept definition of fraud investigation.