有效益的交易:合同诈骗罪规范目的证成——以骗逃部分铁路运费案为分析重点

Transaction with Benefit:Justification of the Normative Purpose of the Crime of Contract Fraud-Taking the Case of Partial Evasion of Rail Freight as the Focal Point

合同诈骗罪“兜底条款”如何理解与解释,存在的争议焦点之一是怎样看待合同诈骗罪“列明”行为的价值以及其是否具有构成要件的意义。骗逃部分铁路运费的行为,能否以合同诈骗罪的“兜底条款”定罪处刑,目的解释是可否入罪判断需要坚持的最为重要的解释原则,目的论限缩是填补刑法隐蔽性漏洞的有效方法。符合规范保护目的的行为,应当通过目的论限缩将其出罪化。合同诈骗罪所涉的市场秩序与公私财产损失,是指没有交易目的或者基础、欠缺交易效益与效率前提下的市场秩序与财产损失。有效益或者有效率的、合乎交易目的的合同欺诈行为,不属于合同诈骗罪的规制范围。源于罪刑法定原则的要求,目的解释只应当用于出罪化。经济犯罪的刑法教义学研究与规范目的的理解,离不开社科法学智识的浸润、滋养与支撑。否则,经济犯罪的刑法解释与司法适用,就有可能违反基本的经济规律与经济法则而走向谬误。骗逃部分铁路运费的行为,不应当按照合同诈骗罪的“兜底条款”定罪处刑。

How to understand and interpret the "miscellaneous clause" on the crime of contract fraud is a controversial issue in both theoretical and practical circles. One of the focuses of controversy is how to treat the value of "listing" conduct of contract fraud and whether it has the significance of a constituent element. At the same time, how to correctly grasp the normative purpose of the crime of contract fraud is also the key issue in the determination of the regulatory boundary of the crime. The purpose of criminal law regulation of contract fraud in the market field, especially in the commercial field, is to combat the conducts without transaction benefit, namely those that have no transaction sincerity or transaction ability and foundation. The regulatory scope of contract fraud in the market field has logic and rules different from those in daily life. The conduct that conforms to the normative scope of the crime of contract fraud must be based on the common crime of fraud, but the conduct that conforms to the constituent elements of the common crime of fraud does not necessarily conform to the constituent elements of the crime of contract fraud. The legislation on special fraud crimes in the field of market economy, such as the crime of contract fraud, itself indicates the restrictive position of criminal legislation on the regulation of fraud in the market field. The difference between the filing standard of contract fraud and ordinary fraud in quasi-judicial interpretation is a good explanation and proof of this position. In deciding whether the act of evading part of railway freight can be convicted and punished in accordance with the "miscellaneous clause" on contract fraud, teleological interpretation is the most important interpretation principle to be adhered to and the limitation of teleological interpretation is an effective method to stop the hidden loophole in criminal law. The conduct that conforms to the purpose of normative protection should be decriminalized through the limitation of teleological interpretation. The market order and public and private property losses involved in the crime of contract fraud refer to the market order and property losses on the premise of no transactional purpose or basis and lack of transactional efficiency. An effective or efficient contract fraud that meets the purpose of transaction does not fall within the regulatory scope of the crime of contract fraud. According to the requirements of the principle of legality, teleological interpretation should only be used for decriminalization. The criminal law dogmatic research and the understanding of normative purpose of economic crimes are inseparable from the infiltration, nourishment and support by the intellectual knowledge of social science and law. Otherwise, the criminal law interpretation and judicial application of economic crimes may contravene the basic economic law and become fallacious. The act of evading part of the railway freight should not be convicted and punished in accordance with the "miscellaneous clause" on the crime of contract fraud.