合同诈骗罪及其合同效力的司法认定——以“托盘贸易案”展开

Approaches to Judicial Identification of Contract fraud and Fraud-involved Contract Validity——A case study of“pallet financing business”

涉诈骗类型的刑民交叉案件属疑难复杂案件,其中,尤以合同诈骗罪与其合同效力的认定问题最为突出。就实践中刑民交叉案件的关联形态来说,“先刑后民”“刑民并行”虽为不少学者所主张,但在实体层面,“先民后刑”更具理论、立法、司法的合理性,能为合同欺诈与合同诈骗罪的界分提供一定的判断依据。对于托盘融资活动中易被认定为合同诈骗罪的几种情况,要立足于合同诈骗罪的构造,重视限制解释与综合判断。如果行为人没有隐瞒影响合同性质或目的实现的“重要事项”,即便存在欺骗方法,也不是合同诈骗罪。基于刑民规范的不同价值,对涉诈骗犯罪中的合同效力的认定,应当坚持在私法范畴内,根据《民法典》关于民事法律行为效力规则进行教义学分析,此类合同不符合法律规定的无效情形,而是可撤销类型的合同。

criminal and civil cases involving fraud are the most complicated to handle,especially when it comes to the determination of contract fraud and the validity of the crime-involved contract.Though in practice many scholars have proposed that priority should be given to the criminal part of the case,yet as a matter of fact,giving priority to what is civil is more reasonable in theory,legislation and judicature,as it can provide a better basis for distinguishing contract fraud from crime of fraud.For the several situations where pallet financing activities are likely to be identified as contract fraud,caution must be taken to ensure a clear construction of contract fraud,limited interpretation and compre⁃hensive judgement.If the parties involved have no intent to conceal the“important matters”that affect the nature and purpose of the contract,even if there is cheating in the process,the contract should not judged as fraud.On the basis of the difference between civil law and criminal law,the determination of the validity of a fraud-involved contract should be made by examining it in the context of private law,and analyzing its validity according to relevant stipulations in the Code of Civil Law.A contract of this kind is not one defined as invalid by law,but one that is revocable.