陳某合同詐騙案研究
發(fā)布時(shí)間：2018-09-09 09:22
【摘要】：市場(chǎng)經(jīng)濟(jì)活動(dòng)中，不可避免地存在著大量的合同糾紛和爭(zhēng)議。其中的一些違反了合同法的規(guī)定，相關(guān)當(dāng)事人要承擔(dān)一定的民事責(zé)任，而還有一部分不僅侵犯了民事法律關(guān)系，而且嚴(yán)重地侵犯了市場(chǎng)經(jīng)濟(jì)秩序和他人的合法財(cái)產(chǎn)所有權(quán)，這是為我國(guó)刑法所不允許的。1997年刑法第二百二十四條將合同詐騙罪從詐騙罪中分離出來，明確設(shè)立了合同詐騙罪，從而規(guī)范經(jīng)濟(jì)活動(dòng)中的欺詐犯罪。經(jīng)歷了十余年的經(jīng)濟(jì)生活的考驗(yàn)，合同詐騙犯罪的認(rèn)定仍然存在不少的難點(diǎn)，而最大的難點(diǎn)莫過于對(duì)非法占有故意的認(rèn)定。陳某合同詐騙案是筆者在日常工作中辦理的一件典型的合同詐騙案件。該案涉及了合同詐騙犯罪的兩個(gè)最大的難點(diǎn)和重點(diǎn)：一是非法占有的故意，二是合同詐騙與合同糾紛的區(qū)別。實(shí)際上，從司法實(shí)踐來看，無論是非法占有的故意和合同詐騙與合同糾紛的區(qū)別，最終都能從行為人的主觀故意中找到突破口。也即是說，合同詐騙的主觀方面是當(dāng)事人是否構(gòu)成犯罪、構(gòu)成此罪與彼罪的最重要的衡量要素。而實(shí)際是，在司法活動(dòng)中，主觀方面的取證大都還依賴著行為人及相關(guān)當(dāng)事人的言辭證據(jù)，在刑訴法修改后，這種調(diào)查取證方式將不再適應(yīng)新的需要。那么如何突破主觀方面的束縛就成為司法者必須面對(duì)的問題。本文將以陳某合同詐騙案為切入點(diǎn)，深刻探討合同詐騙犯罪的主觀方面認(rèn)定的相關(guān)問題。以陳某合同詐騙犯罪為載體，深入地論述了司法實(shí)踐中合同詐騙犯罪認(rèn)定的難點(diǎn)，即非法占有目的的認(rèn)定以及與合同糾紛的區(qū)別。本文開篇即對(duì)陳某合同詐騙案進(jìn)行了分析，并引出了本文將探討的問題。在第二部分探討了法學(xué)理論中非法占有目的與合同糾紛區(qū)別的理論，并得出了司法實(shí)踐中最為合理的學(xué)說。第三部分通過另外的兩起相似的合同詐騙案例與陳某案件相形成對(duì)比，最終得出了實(shí)踐中辦理此類案件的方法與經(jīng)驗(yàn)。并在第四部分予以詳細(xì)論述。本文的目的不在于對(duì)合同詐騙案件本身進(jìn)行理論性的探討，也不在于用一個(gè)典型案件概括整類經(jīng)濟(jì)案件，而僅僅是通過實(shí)踐中的案例進(jìn)行深入的、理性的思考，盡可能地找出辦理此類案件的通用偵查、審查手段，，為實(shí)踐中辦理此類案件積累經(jīng)驗(yàn)，以便提高訴訟效率，提高辦理案件的準(zhǔn)確率，保證案件質(zhì)量。
[Abstract]:In the market economy activities, there are inevitably a large number of contract disputes and disputes. Some of them violate the provisions of the contract Law, and the relevant parties have to bear certain civil liabilities, while some of them not only violate the civil legal relations, but also seriously violate the market economic order and the legal property ownership of others. Article 224 of 1997 Criminal Law separates the crime of contract fraud from the crime of fraud, and clearly establishes the crime of contract fraud, thus standardizing the crime of fraud in economic activities. After more than ten years of economic life, there are still many difficulties in the identification of contract fraud, and the biggest difficulty is the determination of illegal possession. Chen Mou contract fraud case is a typical contract fraud case handled by the author in daily work. The case involves two major difficulties and emphases in the crime of contract fraud: one is the intention of illegal possession, the other is the difference between contract fraud and contract dispute. In fact, from the judicial practice, whether illegal possession of intent and contract fraud and contract disputes, ultimately can find a breakthrough from the subjective intent of the perpetrator. That is to say, the subjective aspect of contract fraud is whether the parties constitute a crime and constitute the most important measure of this crime and that crime. In fact, in the judicial activities, the subjective aspect of the evidence is also dependent on the perpetrator and the relevant parties of the verbal evidence, after the revision of the Criminal procedure Law, this investigation and evidence will no longer adapt to the new needs. So how to break through the constraints of the subjective aspects of the judiciary must be faced with the problem. This article will take Chen Mou contract fraud case as the breakthrough point, deeply discusses the contract fraud crime subjective aspect cognizance correlation question. Taking Chen Mou contract fraud crime as the carrier, this paper deeply discusses the difficulties in the identification of contract fraud crime in judicial practice, that is, the identification of the purpose of illegal possession and the difference between the crime and the contract dispute. At the beginning of this paper, the author analyzes Chen's contract fraud, and leads to the problems to be discussed in this paper. In the second part, the author discusses the theory of the difference between the purpose of illegal possession and the contract dispute in the legal theory, and draws the most reasonable theory in the judicial practice. The third part through the other two similar cases of contract fraud and Chen case to form a contrast, and finally obtained the practice of handling such cases and experience. And in the fourth part to give a detailed discussion. The purpose of this paper is not to probe into the contract fraud case itself theoretically, nor to generalize the whole economic case with a typical case, but to think deeply and rationally through the practical cases. As far as possible, we can find out the general investigation and examine means of dealing with such cases, accumulate experience for handling such cases in practice, so as to improve the efficiency of litigation, improve the accuracy of handling cases, and ensure the quality of cases.
【學(xué)位授予單位】：黑龍江大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D924
本文編號(hào)：2231975
[Abstract]:In the market economy activities, there are inevitably a large number of contract disputes and disputes. Some of them violate the provisions of the contract Law, and the relevant parties have to bear certain civil liabilities, while some of them not only violate the civil legal relations, but also seriously violate the market economic order and the legal property ownership of others. Article 224 of 1997 Criminal Law separates the crime of contract fraud from the crime of fraud, and clearly establishes the crime of contract fraud, thus standardizing the crime of fraud in economic activities. After more than ten years of economic life, there are still many difficulties in the identification of contract fraud, and the biggest difficulty is the determination of illegal possession. Chen Mou contract fraud case is a typical contract fraud case handled by the author in daily work. The case involves two major difficulties and emphases in the crime of contract fraud: one is the intention of illegal possession, the other is the difference between contract fraud and contract dispute. In fact, from the judicial practice, whether illegal possession of intent and contract fraud and contract disputes, ultimately can find a breakthrough from the subjective intent of the perpetrator. That is to say, the subjective aspect of contract fraud is whether the parties constitute a crime and constitute the most important measure of this crime and that crime. In fact, in the judicial activities, the subjective aspect of the evidence is also dependent on the perpetrator and the relevant parties of the verbal evidence, after the revision of the Criminal procedure Law, this investigation and evidence will no longer adapt to the new needs. So how to break through the constraints of the subjective aspects of the judiciary must be faced with the problem. This article will take Chen Mou contract fraud case as the breakthrough point, deeply discusses the contract fraud crime subjective aspect cognizance correlation question. Taking Chen Mou contract fraud crime as the carrier, this paper deeply discusses the difficulties in the identification of contract fraud crime in judicial practice, that is, the identification of the purpose of illegal possession and the difference between the crime and the contract dispute. At the beginning of this paper, the author analyzes Chen's contract fraud, and leads to the problems to be discussed in this paper. In the second part, the author discusses the theory of the difference between the purpose of illegal possession and the contract dispute in the legal theory, and draws the most reasonable theory in the judicial practice. The third part through the other two similar cases of contract fraud and Chen case to form a contrast, and finally obtained the practice of handling such cases and experience. And in the fourth part to give a detailed discussion. The purpose of this paper is not to probe into the contract fraud case itself theoretically, nor to generalize the whole economic case with a typical case, but to think deeply and rationally through the practical cases. As far as possible, we can find out the general investigation and examine means of dealing with such cases, accumulate experience for handling such cases in practice, so as to improve the efficiency of litigation, improve the accuracy of handling cases, and ensure the quality of cases.
【學(xué)位授予單位】：黑龍江大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2012
【分類號(hào)】：D924
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本文編號(hào)：2231975
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