诈骗罪处分意识的问题研究

The Consciousness of Disposition of the Crime of Fraud

处分行为是区分诈骗罪与盗窃罪的关键环节,而处分意识的有无以及内容决定了处分行为的边界。处分意识实质相当于有瑕疵的被害人同意,是盗窃罪与诈骗罪不法程度高低的基础。因为两罪不法类型与程度的不同,并根据我国的刑法规定,在我国坚持处分意识必要说有其合理性与必然性。处分意识的内容应当根据被害人同意原理构建的双层次处分意识说的理论模型予以确定。第一层次是对特定财产的认识,强调对财产静态的认识;第二层次是特定财产移转或增减的认识,强调对财产动态的认识。财产性利益的增减必须具有能够等视为财物转移的具体性与确实性。同时,应当适度扩充利益盗窃的范畴,以弥补在坚持处分意识必要说时可能造成的处罚漏洞。

The act of disposition is the key to distinguishing the crime of fraud from theft. The presence or absence of the consciousness of disposition and its content determine the boundary of the act of disposition. The consciousness of disposition is equivalent to the victim's consent that is defective, and it lays the foundation for distinguishing the difference of illegality between the crime of fraud and theft. Owing to the different types and illegality of the crime of fraud and theft, and in accordance with the provisions of China's Criminal Law, adherence to the necessity of the consciousness of disposition is reasonable and necessary. The content of the consciousness of disposition should be determined on the theoretical model of the double level consciousness of disposition which is based on the principle of victim's consent. The first level is the understanding of the specific property, focusing on the understanding of the static property; the second level is the understanding of the specific property transferring and changing in quantity, focusing on the understanding of the dynamic property. The increase and decrease of property interests must be regarded as the transferring of the specific property. At the same time, when the necessity of the consciousness of disposition is insisted on, the theft category of property interests should be expanded properly, in order to remedy the punishment loopholes.