金融诈骗犯罪主观目的诉讼证明困境与出路论

Predicament and Choice on the Subjective Intent of Financial Fraud Crime

金融诈骗犯罪主观目的的内涵与证明标准和证明程度是判断金融欺诈行为是否构成犯罪的关键。长期以来理论界的众说纷纭导致了诉讼证明的困难重重 ,进而导致了司法实践的主观随意。为公正合理地处理金融诈骗犯罪案件 ,解决诉讼证明的司法困境 ,需要在刑法中对金融诈骗的犯罪构成进行分段规制 ;

The connotation of subjective intent in the crime of financial fraud, together with its standard of proof and the degree of proof, is the key issue in determining whether or not an act of financial fraud has constituted the crime of financial fraud. Varied opinions long existing in the theoretical circle have made the proof work in this regard more difficult, resulting in great discretion with respect to the determination of the crime in judicial practice. This author holds that, for the purposes of handling the crime of financial fraud justly and fairly and getting the proof work out of current predicament, it is therefore necessary to standardize the constitution of the crime in question in the criminal law as well as the judicial application of presumption.