“套路贷”诈骗“错误认识”的实践偏离及其矫正

On the"Wrong Understanding"in the"Trap Loan"Type Fraud:Deviation in Judicial Practice and Its Correction

当前我国关于“套路贷”诈骗犯罪“错误认识”的司法界定存在诸多偏差,如回避受骗者是否陷于错误认识而以“套路贷”特征的符合性来认定诈骗罪成立,以对行为人“非法占有目的”的分析取代受骗者“陷于错误认识”的论证,将受骗者是否明知“套路”排除出“套路贷”诈骗罪的影响要素范围,以虚假债权债务的客观形成直接推导被害人主观上存在错误认识等。此类偏差并不具有司法处置上的合理性,不仅与诈骗罪成立要求不相符合,而且实际架空了诈骗罪法定构成要件的司法适用。实践中,应厘清“套路”与“错误认识”的关联性,明晰“错误认识”与交付财产间的因果性。应当围绕“错误认识”要素,对当前司法界定的“套路贷”诈骗犯罪分化处置;严格“错误认识”与“非法占有目的”界分,确立行为人目的与被害人认知的双重评判;坚持刑法有限适度介入,准确把握被害人明知“套路”的法律适用。

At present,there are many kinds of different deviation in the judicial determination of"wrong understanding"in the crime of fraud in the form of"trap loan"such as ignoring whether the victim has wrong understanding and determining the crime of fraud based on the conduct's conformity to the characteristics of"trap loan",replacing the proof of the victim's wrong understanding by the analysis of the perpetrator's illegal purpose of possession,excluding the victim's knowledge of"trap loan"from the scope of influencing factors of the crime of fraud in the form of"trap loan",the direct deduction from the objective establishment of false creditor's rights and debts to the victim's wrong understanding.These kinds of deviation are not rational in terms of judicial treatment,which are not only inconsistent with the requirements of the constitution of the crime of fraud,but also actually make the statutory constituents of the crime of fraud useless in the judicial application.In practice,we should clarify the correlation between"trap"and"wrong understanding",and make clear the causality between"wrong understanding"and the transfer of occupation of property.We should focus on the element of"wrong understanding"to differently deal with the crime of fraud in the form of"trap loan"defined by the current judicial system;We should strictly distinguish"wrong understanding"from"illegal purpose of possession",and make two determinations respectively concerning the perpetrator's purpose and the victim's cognition;We should adhere to the limited and moderate intervention by criminal law and accurately apply the law to the situation that the victim has a clear knowledge of"trap".