诈骗罪中处分行为的认定困境与机能定位

The Dilemma of Identifying the Act of Disposition and Its Functional Position in the Crime of Fraud

主张以是否存在处分行为来区分诈骗罪与盗窃罪,是学说上的多数,但不容回避的是,处分行为的认定面临着一些困境。财物转移占有或者财产性利益转移归属的判断并非总是泾渭分明;纯粹客观地判断处分行为存在重大缺陷、要求处分意思时其涵摄范围模糊不清,意思说与行为说的逐渐趋同意味着行为说的问题并未得到彻底解决;在财物诈骗与财产利益诈骗的场合对于处分行为是该统一理解还是采取不同的理解,存在着两难。处分行为所承担的区分机能,充其量是其合理划定诈骗罪成立范围机能的反射效果,该种区分机能不应高估。这意味着,在是否存在处分行为标准模糊、结论不清的例外场合,需要承认诈骗罪与盗窃罪间接正犯之间的法条竞合,并且按照竞合犯处理。

Most doctrines advocate a distinction between fraud and theft based on the presence or absence of the act of disposition.However,there are many dilemmas in the identification of the act of disposition.The determination of the transfer of possession of property or the attribution of a transfer of a property interest is not always clear-cut.It is difficult to identify the act of dispossession solely on an objective basis,yet the content of the subjective idea of the disposition is ambiguous.The gradual convergence between the meaning and the act theory means that the act theory is still problematic.In the context of property fraud and property interest fraud,both a unified and a differentiated understanding of the act of disposition is flawed.The function of the act of dispossession in distinguishing between offenses cannot be overestimated;it is only an incidental consequence of delineating the conditions for the establishment of the crime of fraud.This means that where it is difficult to identify the precise act of dispossession,it is necessary to recognize the existence of a legal overlap between the crime of fraud and the indirect principal offender of the crime of theft.