摘要
目前学界争议颇多的偷换二维码案系新型支付方式下衍生的财产犯罪的典型表现。对其定性存在盗窃罪与诈骗罪两种观点,其中诈骗罪内部又存在普通诈骗说、双向诈骗说、三角诈骗说等分歧。在顾客扫码支付之前或之后,商家从未取得对钱款的占有,且行为人并未采取秘密窃取的方式非法取得对钱款的占有,因此不成立盗窃罪。行为人偷换二维码的行为使受骗人顾客基于错误认识处分了其钱款,且使自己遭受了损失,应采普通诈骗说(顾客被骗人说),为此偷换二维码的行为构成诈骗罪。
The controversial crime of QR code substitution in academia is a typical performance of property crime derived from the new method of payment. With its definition not yet clear, most believe it is either larceny or fraud. However, divergence emains among those who holds the latter idea includingfraud theory, hi-directional fraud theory, tripartite fraud theory. Larceny is ill-founded because the shopkeeper has not gained the possession of the money, before or after the payment, and that the actor did not acquire the money by stealing secretly. Since the act of QR code substitution victimized the customers by tricking them into paying based on their misconceptions, it should be categorized as fraud theory thereby constituting fraud.
