合同诈骗罪实务问题探讨——基于50份判决书的分析

Discussion on Practical Issues of Contract Fraud Crime—Based on an Analysis of 50 Judgments

合同诈骗罪系经济犯罪,通过确定客体性质,能够认定合同的性质。“合同”应涉及市场经济秩序,且在交易关系中存在双务、有偿的特征。合同的形式仅限于书面,不符合民法上关于合同形式的界定,与现实情况脱节,不利于全面保护。是否存在非法占有的目的,是合同诈骗的主观核心要件,也是区分合同诈骗与合同欺诈的关键点。合同诈骗罪与诈骗罪存在法条竞合,是特别法与一般法的关系,两罪区分点在于欺骗的手段是否采用“合同”的形式。非法占有目的产生的时间影响判断行为是否构成犯罪。在被害人交付财物后遂产生目的,可能涉嫌侵占罪或按照民事合同的违约制度处理。关于犯罪数额的认定,应当严格按照证据认定的事实为准,不得单以被告人的口供确定,更不能采纳司法机关提供的佐证力不足的证据。

The crime of contract fraud is an economic crime, and the determination of the nature of the object can guide the determination of the nature of the contract. A “contract” is a dual service, paid contract that involves the order of a market economy and has a transaction relationship. The form of the contract is limited to written form, which does not comply with the definition of contract form in civil law and is disconnected from the actual situation, which is not conducive to achieving comprehensive protection. The purpose of illegal possession is the key point to distinguish between contract fraud and contract fraud, and it is also the subjective core element to determine whether it constitutes contract fraud. The crime of contract fraud and the crime of fraud have a concurrent legal relationship, which is the relationship between special law and general law. The difference between the two crimes lies in whether the means of deception adopt the form of a “contract”. The time impact of the purpose of illegal possession determines whether the act constitutes a crime. If the purpose of illegal possession occurs before the contract is established, during the performance of the contract, and before the victim delivers the property, it meets the time requirement. If the purpose arises after the victim delivers the property, it may be suspected of committing the crime of embezzlement or being dealt with in accordance with the breach of contract system in civil contracts. The determination of the amount of crime should be strictly based on the facts determined by the evidence, and cannot be determined solely based on the defendant’s confession, let alone the evidence provided by judicial authorities with insufficient supporting force.