诈骗罪中处分行为的体系位置与内容构成

The Systematic Position and Content of the Disposal Conduct in the Crime of Fraud

在诈骗罪的构成要件中,存在两种不同的财产处分行为,分别是作为欺骗内容的财产处分行为和作为欺骗效果的财产处分行为。前者是诈骗罪行为要素的关键内容,后者属于诈骗罪的结果要素。无论是从财产处分行为的本体构造来看,还是从诈骗罪的自我损害性特征来看,抑或是从合理区分诈骗罪与盗窃罪的功能设定来看,都应当坚持处分意识必要说。处分意识不要说的立论基础是引起占有转移的行为即为财产处分行为,但是这个命题不能成立。关于财产处分意识的程度要求,学界存在全面认识说、质量区分说、观察可能性说、极端缓和说等多种观点,但是这些观点均有不足。观察正常市场交易中的财产处分意识的内容,可以推知诈骗罪对财产处分意识的程度要求。要肯定受骗人对某个财产有财产处分意识,需且仅需满足以下两个条件:其一,受骗人实施了财产处分行为;其二,该财产位于受骗人的财产处分行为的覆盖范围之内。

In the crime of fraud,there are two different kinds of property disposal behavior,one is the property disposal behavior as the content of deception,and the other is the property disposal behavior as the effect of deception.The former is the key content of the behavior elements of the crime of fraud,and the latter belongs to the result elements of the crime of fraud.Whether from the perspective of the structure of the conduct of disposing property,or the characteristic of self-damage of the crime of fraud,or the function of distinguishing the crime of fraud from the crime of theft,it is necessary to insist on the Doctrine of Disposal Awareness Required.The foundation for advocating the Doctrine of Disposal Awareness not Required is that the conduct of resulting in the transfer of occupation is the one of disposing property,however,such proposition is not tenable.There are many different views on the degree of awareness of disposing property in the academic circles such as the Doctrine of Comprehensive Knowledge,the Doctrine of Quality Distinction,the Doctrine of Possibility in Observation,the Extremely Moderate Doctrine,however,all of them have shortcomings.By observing the content of the awareness of disposing property in normal market transactions,the requirement of the degree of awareness of disposing property in the crime of fraud could be inferred.It could be concluded that the deceived person has the awareness of disposing property if the following two conditions are met:first,the deceived person has carried out the conduct of disposing property;second,the property is within the scope of the deceived person’s conduct of disposing property.