合同诈骗中“双重诈骗行为”的定性和处理

Characterizationand Treatment of “Double Fraud” in Contract Fraud

近年来,合同诈骗犯罪中出现了"双重诈骗"的特殊类型。行为人实施一个合同诈骗行为后,利用该行为取得的财物进行了第二次诈骗行为,从形式上看前行为和后行为属于手段和目的的关系。对于此类型犯罪,学界和实务界没有形成统一的处理意见,导致同案不同罚的结果。对于此类型案件,如数罪并罚,量刑过重。应当将前一行为定性为合同诈骗,由刑法进行规制,而后一行为定性为民事欺诈,由民法所调整,只按照合同诈骗罪一罪处理。

In recent years,there has been a special type of"double fraud"in contract fraud crimes.After the perpetrator committed a contract fraud,he used the act to obtain property for the second fraud.Formally speaking,the former and the latter belong to the relationship between means and ends.As for this type of crime,there is no unified opinion on how to deal with it in the academic and practical fields,which leads to different punishment for the same case.For this type of case,several crimes are punishable concurrently,teratary punishment is overweight.The former act shall be defined as contract fraud,regulated by the criminal law,the latter as civil fraud,adjusted by the civil law,and shall be dealt with only in accordance with the crime of contract fraud.