诈骗罪与敲诈勒索罪的竞合研究——以单一行为型案件为中心的考察

A Study on the Concurrence of Crime of Extortion and Fraud-A Study on Single-Act Cases

对于兼具欺诈与敲诈因素的单一行为型案件如何处理,实践中一直存在较大争议。认为诈骗罪与敲诈勒索罪属于互斥关系的主张,会导致行为要素与结果要素的混淆、被害人视角与行为人视角的抵牾等问题,难以为司法实践提供逻辑严密、体系一贯的解决方案。应当坚持修正的“竞合论”,肯定诈骗罪与敲诈勒索罪能够成立某一罪名的既遂与另一罪名的未遂的想象竞合。这有利于行为人视角的复归,贯彻全面评价原则,构建具有正当性与可操作性的判断标准。根据修正的“竞合论”,在定性时,应当先审查行为能否被同时评价为欺诈与敲诈,以认定行为的性质;再按照客观归属理论考察财产处分是属于欺诈因素还是敲诈因素所制造的风险的实现,以决定最终的处断结论。

There has always been considerable controversy in Chinese judicial practice over how to handle single-act cases that involve both fraud and extortion elements.This is primarily because the academia has not yet reached a consensus on the relationship between the crimes of extortion and fraud,and many researchers have not been able to provide a systematic and standardized judgment scheme for judicial practice on how to properly distinguish between the two crimes.The crime of fraud and the crime of extortion are mutually exclusive.This leads to confusion between behavioral elements and result elements,and conflicts between the victim’s perspective and the offender’s perspective,making it difficult to provide a logically rigorous and systematic solution for judicial practice.With the view that the two crimes are overlapping of legal provisions,it is difficult to explain the relationship between the inclusion and being included among the Tatbestand of the crimes,and it is impossible to fully evaluate its illegal content,which has many disadvantages.We should adhere to the modified theory of concurrence and affirm that the crime of fraud and extortion can establish the ideal concurrence of one crime and the attempt of another crime.According to the modified theory of concurrence,when handling a case of requesting property with elements of fraud and extortion,it is necessary to judge:(1)Whether,from an objective point of view,the conduct can be regarded as both fraudulent and extortionate;(2)According to objective imputation,should property losses be attributed to elements of fraud or extortion?Among them,the purpose of step one is to determine whether the case contains elements of both fraud and extortion.If the behavior is only fraud or only extortion,then it only needs to be treated as one crime of fraud or extortion.The purpose of step two is to draw a final qualitative conclusion about the offender.If the risk created by the fraud factor materializes into property losses,then the case is the ideal concurrence of the crime of attempted extortion and the crime of completed fraud.The crime with a heavier penalty among the two should be chosen,and the completed crime of fraud should be punished.If the risks created by the factors of extortion materialize into property losses,then the case is the ideal concurrence of the crime of completed extortion and the crime of the attempted fraud.The crime with the heavier punishment should be chosen among the two crimes,and the crime of completed extortion should be punished.The above judgment steps place great emphasis on objective judgment and normative judgment.This is conducive to the return of the offender’s perspective,the implementation of comprehensive evaluation principles,and the construction of legitimate and operable judgment standards.Based on the above judgment steps,we can effectively solve the difficult problem of identifying“fictitious harm”cases,“fictitious evil harm”cases,and“false reporting”cases in practice.