三角诈骗的类型

Types of Tripartite Fraud

三角诈骗是德国、日本等国刑法理论和审判实践普遍使用的概念;三角诈骗不仅是客观存在的犯罪现象,而且与两者间的诈骗没有实质区别;三角诈骗概念不是伪命题,承认三角诈骗概念,不仅具有实体法的意义,而且具有诉讼法的意义。传统类型的三角诈骗表现为,具有处分权限的受骗人基于认识错误处分被害人(第三者)的财产,因而使被害人遭受财产损失。诉讼诈骗是传统类型三角诈骗的典型,在诉讼诈骗中,处分行为人是法官而不是被害人;不应当认为诉讼诈骗中的被害人是处分行为人、法官只是单纯的受骗人;换言之,不存在受骗人没有处分财产的三角诈骗。本文试图论证另一种类型的三角诈骗,即具有处分权限的受骗人基于认识错误处分自己的财产,却导致被害人(第三者)遭受财产损失。这种新类型的三角诈骗,与传统类型的三角诈骗以及两者间的诈骗没有实质区别;承认这种新类型的三角诈骗,有利于处理相关疑难案件。

Tripartite fraud is a concept commonly used both in Germany, Japanese and other countries＇criminal theories and trial practices. Tripartite fraud is a crime phenomena objectively existed,and it is not substantively different from the fraud between two parties. The concept of tripartite fraud is not a false proposition. To recognize this concept, will not only have the significance of the substantive law, but also have the meaning of the procedural law. The traditional type of tripartite fraud is that the deceived person who has the authority or status to dispose of property disposes of the victim＇s （or the third party＇s） property based on wrong understanding, thus causes the victim to suffer the loss of property. Litigation fraud is the traditional and typical type of tripartite fraud. In litigation fraud, the person who has the authority or status to dispose of property is the judge instead of the victim; it should not be held that the person who disposes of property is the victim himself, while the judge is purely deceived into wrong understanding; in other words, there is no tripartite fraud if the deceived person has not disposed of property. In addition, this article attempts to demonstrate another type of triangle fraud, which is, the deceived person who has the authority or status to dispose of property disposes of his own property based on wrong understanding, but causes the victim （or the third party） to suffer the property loss. This is a new type of tripartite fraud, and it is not substantively different from traditional type of tripartite fraud and fraud between two parties. However, identification of this new type of tripartite fraud, will be beneficial to deal with relevant hard cases.