论虚拟网络中财产性利益占有转移的可能性

On the Possibility of Transfer of Property Interests in Virtual Networks

“更换二维码案件”是数字网络深入发展过程中,催生出的新类型财产犯罪案件之一种。由于此类案件财产转移方式虚拟化,行为过程涉及多方,行为手段“盗骗交织”,行为宜定性为诈骗还是盗窃引发巨大争议。以诈骗罪定性必然面临行为模式重构的“结构化危机”,而犯罪对象的无形化又使得以“有体物”为核心构建的传统刑法占有理论客观上不能完全适应此类侵害财产性利益案件的分析,从而使定性为盗窃罪面临处理困境。因新型案件的出现而频繁立法显然不合理,因此需回归到合理范围内寻找能够实现逻辑自洽的解释路径,即拓宽盗窃罪的对象,从占有标的出发,合理地扩大解释占有的内涵,论证网络盗窃中财产性利益占有转移的可能性。

“The case of changing QR codes” is one of the new types of property crimes that have emerged in the deep development of digital networks. Due to the virtualization of property transfer in such cases, involving multiple parties during the behavior process, and the interweaving of behavior methods such as theft and deception, there is a huge controversy over whether the behavior is classified as fraud or theft. The characterization of fraud inevitably faces a “structured crisis” of behavior pattern reconstruction, and the invisibility of the criminal object makes the traditional criminal law possession theory based on “tangible objects” objectively unable to fully adapt to the analysis of such cases of infringement of property interests, thus making it difficult to handle the crime of theft. Frequent legislation due to the emergence of new cases is obviously unreasonable. Therefore, it is necessary to return to a reasonable range and find a logical and consistent interpretation path, that is, to broaden the scope of theft, start from the object of possession, reasonably expand the connotation of interpretation of possession, and demonstrate the possibility of property interest transfer in online theft.