论诈骗罪中的财产处分行为--处分意识不要说之提倡

Property Disposition in the Crime of Fraud——A Case for the Doctrine of Unnecessity of Disposition Consciousness

处分行为可谓我国当前诈骗罪的核心要件,国内传统理论过分倚重处分意识要素,且试图无差别融合德国与日本的处分行为理论,有错位与杂之嫌。诈骗罪的不法类型并非自我损害犯罪,而是利用被骗人实现财产损害的他人损害犯罪。处分行为所谓的自我损害标识功能与区分功能均建立在人为预设的排他信条之上,其唯一规范功能在于构建财产损害与欺骗行为之间的归责关联,从而将财产损害归责于行为人的欺骗行为。处分行为在我国语境下应表述为任何直接导致财产转移的作为、容忍和不作为,只有直接性要件才是处分行为的本质要件,自愿性要件与处分意识均是为了维持排他信条而人为增加的要素,并不可取。

Disposition of property currently constitutes the core element of the crime of fraud in China.Chinese traditional theories overly hinge upon the awareness aspect of disposition,attempting an indiscriminate amalgamation of German and Japanese theories,thereby raising concerns of misalignment and hybridity.The exclusive relationship between fraud and theft has significantly influenced the shaping of property disposition.Nevertheless,to guide the interpretation of property disposition by the exclusive relationship is in essence to guide the interpretation of the constituent elements of fraud by neighboring constituent elements of theft.In essence,fraud is not a self-injurious crime,but rather a crime of causing harm to others through the deception of the victim.Without the victim's property disposal,the danger inherent in the perpetrator's deceptive act cannot be realized.Consequently,the function of property disposal is not to identify the self-injurious nature of fraud or to differentiate between fraud and theft.Its sole normative function is to establish an attributional connection between property damage and deception that attributes property damage to the perpetrator's deceptive act.To establish this attributional linkage,property disposal must directly result in the transfer of property.Therefore,the element of directness is integral to property disposal,and the willingness or awareness of the deceived person regarding the disposal has no bearing on this aspect.In a sense,the most typical form of fraud occurs when the deceived person is duped without being aware of the fraud.In the context of the Chinese jurisdiction,property disposal should be defined as any act,tolerance,or inaction directly culminating in property transfer.The elements of voluntariness and consciousness of disposal are artificially introduced distinguishing factors to uphold exclusivity,a proposition deemed unacceptable.The subjective dimension of property disposal can be further subcategorized into the intention and the consciousness of disposal.The doctrine of unnecessity of disposition consciousness doesn't entirely disregard the subjective intent of the victim but necessitates the victim's recognition of the factual manifestation of property transfer.It is an inevitable deduction from the attribution structure of fraud that can address various issues related to misconceptions and is in line with the contemporary imperative of criminal policy to combat the proliferation of telecommunications and online fraud.According to this doctrine,fraud and theft may occur concurrently and this conclusion is consistent with the broader notion of robbery and extortion being in a competitive relationship.Undoubtedly,the relationship between fraud and theft is a multifaceted issue.This paper merely scratches the surface,suggesting the possibility of the two crimes competing with each other by analyzing the functions and elements of property disposal.