打击电信网络诈骗犯罪的困境检视与实务应对--以137个案例为切入

Research on the Dilemma View and Practical Response of Crime of Telecommunication Network Fraud——Take 137 Cases as Breakthrough

伴随着互联网的日益普及和计算机技术的高速发展,电信网络诈骗犯罪呈井喷之势增长,社会危害后果严重。相较于传统诈骗犯罪,电信网络诈骗犯罪具有团伙化,组织化,犯罪手段内容多样化,区域辐射性明显,跨区跨境突出,成本低、隐蔽性高等新特点。这导致司法实践在处理此类案件中存在取证难、定性难特别是诈骗罪与掩饰、隐瞒犯罪所得罪的区别定性、认定难,如主观故意、诈骗数额、主从犯认定难等问题。对此,可突出电子证据的取证作用并结合《关于办理电信网络诈骗等刑事案件适用法律若干问题的意见》,对帮助取款行为,主观故意,诈骗数额,主从犯进行认定。

With the growing popularity of the Internet and the rapid development of computer technology, the crime of fraud in telecommunications networks has been increasing and the consequences of social harm are serious. Compared with the traditional crime of fraud, the crime of the telecom network fraud has the charac-teristics of ganging and organizing, the crime means and content are diversified, the regional radiation is obvi-ous, the cross border is prominent, the cost is low, and the concealment is high. This leads to judicial practice in dealing with such cases. It is difficult to obtain evidence, and the qualitative difficulty is especially the crime of fraud and disguise and concealment of the crime. It is difficult to identify the crime, such as the sub-jective intention, the amount of fraud and it is difficult to identify the principal and the subordinate. In this re-gard, it is possible to highlight the evidence of electronic evidence and to combine the views on the application of legal issues in criminal cases such as telecommunications network fraud, which can help to identify the act of withdrawal, the subjective intention, the amount of fraud and the principal and subordinate offenders.