偷换二维码的行为定性引发了实践和理论的争议,关于顾客和商家谁是被害人、行为性质是盗窃还是诈骗都没有形成统一的观点。在认定被害人时,我们应该以行为为核心,将刑法上的被害人同其他部门法中的被害人相区分。在对行为定性时,我们应...偷换二维码的行为定性引发了实践和理论的争议,关于顾客和商家谁是被害人、行为性质是盗窃还是诈骗都没有形成统一的观点。在认定被害人时,我们应该以行为为核心,将刑法上的被害人同其他部门法中的被害人相区分。在对行为定性时,我们应该合理区分在盗骗交织案件中盗窃和诈骗何为主要手段和被害人有无处分行为。笔者对审判实践中以商家作为被害人将行为认定为盗窃罪的做法提出疑问,应该以顾客作为被害人,从而将行为认定为诈骗罪。The nature of the behavior of stealing two-dimensional code has caused controversy in practice and theory. There is no unified view on who is the victim and the nature of the behavior is theft or fraud. When identifying the victim, we should take the behavior as the core and distinguish the victim in criminal law from the victim in other branches of law. When determining the behavior, we should reasonably distinguish between the main means of theft and fraud and whether the victim is punished or not in the mixed case of theft and fraud. The author has some doubts about the practice of identifying the act as theft by taking the merchant as the victim in the trial practice. Therefore, the customer should be regarded as the victim so as to identify the act as the crime of fraud.展开更多
文摘偷换二维码的行为定性引发了实践和理论的争议,关于顾客和商家谁是被害人、行为性质是盗窃还是诈骗都没有形成统一的观点。在认定被害人时,我们应该以行为为核心,将刑法上的被害人同其他部门法中的被害人相区分。在对行为定性时,我们应该合理区分在盗骗交织案件中盗窃和诈骗何为主要手段和被害人有无处分行为。笔者对审判实践中以商家作为被害人将行为认定为盗窃罪的做法提出疑问,应该以顾客作为被害人,从而将行为认定为诈骗罪。The nature of the behavior of stealing two-dimensional code has caused controversy in practice and theory. There is no unified view on who is the victim and the nature of the behavior is theft or fraud. When identifying the victim, we should take the behavior as the core and distinguish the victim in criminal law from the victim in other branches of law. When determining the behavior, we should reasonably distinguish between the main means of theft and fraud and whether the victim is punished or not in the mixed case of theft and fraud. The author has some doubts about the practice of identifying the act as theft by taking the merchant as the victim in the trial practice. Therefore, the customer should be regarded as the victim so as to identify the act as the crime of fraud.
