论合同诈骗罪主观要件的司法认定及案件侦办

Study on the Judicial Identification of Subjective Elements of Contract Fraud and Case Investigation

合同诈骗犯罪主观要素证明困难一直是困扰实务的难题,具体存在定性难和举证难两大困境。区分合同诈骗罪与一般合同不诚信行为的关键在于非法占有目的的认定。当下的审判工作中出现以签订情节和履约状况为基础推定主观要件的认定倾向,虽为困境解决提供了方向指引,但仍存在民事纠纷刑事化以及反推定规则应用下举证不能的风险。侦查机关在办理相关案件时,应当坚持主客观统一,从推定所需的基础事实入手,围绕合同的签订和履行的整个过程,制定切实可行的侦查策略,强调全案证据的收集。

the difficulty in proving the subjective elements of contract fraud crime has been a puzzle in practice.There are two dilemmas,one is qualitative difficulty,the other is evidential difficulty.The key to distinguish the crime of contract fraud from the dishonest behavior of general contract lies in the determination of the purpose of illegal possession.In the current trial work,there is a tendency to presume the subjective elements based on the signed circumstances and the performance of the con tract.Although it provides direction for the solution of the dilemma,there is still the risk of the criminal civil disputes and the failure of proof under the application of anti presumption rules.When dealing with the relevant cases,the investigation organ should adhere to the unity of subjective and objective,start with the basic facts needed by presumption,develop practical investigation strategies around the whole process of signing and performing the contract,and emphasize the collection of evidence in the whole case.