电信诈骗犯罪取款行为的定性研究

A Qualitative Study on the Withdrawal Behavior of Telecom Fraud Crime

电信诈骗犯罪已成近年高发型犯罪,帮助取款人作为其犯罪链条中最后一步,协助电信诈骗实施者转移与处置赃款。但现行法律法规未明确规定帮助取款人取款行为的性质,致使司法实践出现同案不同判现象。为准确认定取款行为的性质,从客观要素角度,应当识别取款行为是否与电信诈骗实行行为存在因果关系、取款人何时参与电信诈骗犯罪以及电信诈骗犯罪何时既遂;从主观要素角度,应当识别帮助取款人是否明知电信诈骗犯罪以及是否与电信诈骗实施者事前通谋。准确识别以上要素后,再结合共谋共同正犯理论与帮助犯理论,认定取款行为的性质。

The crime of telecom fraud has become a high-incidence crime in recent years.As the last step in its criminal chain,the withdrawal assistors help the executors of the telecom fraud to transfer and dispose of the stolen money.However,the current laws and regulations do not clearly define the nature of the act of helping the drawer to withdraw money,which leads to the phenomenon of different judgments in the same case in judicial practice.In order to accurately determine the nature of withdrawal,from the point of view of objective elements,we should identify whether there is a causal relationship between withdrawal and the implementation of telecom fraud,when the drawer is involved in the crime of telecom fraud and when the crime of telecom fraud has been accomplished.From the perspective of subjective elements,it is necessary to identify whether the assistors who help the withdrawals know the crime of telecom fraud and whether they collude with the perpetrators of telecom fraud beforehand.After accurately identifying the above elements,the nature of withdrawal behavior is determined by combining the theory of complicity in principal crime and the theory of assisted crime.