“風險”視閾下金融詐騙罪與詐騙罪競合探析
發(fā)布時間：2018-07-30 06:52
【摘要】：金融詐騙罪與詐騙罪之間競合問題的爭議,從最初的法條競合論中的重法補充適用與特別法優(yōu)先適用,發(fā)展到大競合論、想象競合論,在處理兩罪之間的關系時從理論上已經(jīng)無法得出一個較為明確的答案,并因此導致實踐中產(chǎn)生了許多的困惑,且進一步發(fā)展將會導致公信力的降低。為解決該問題,尋求兩罪關系的處理方案,本文從金融詐騙罪與詐騙罪之間的實體關系入手,分析出兩罪之間的特別與一般的關系,在分割的界限上其實并不分明,存在一種過渡性行為,因而導致原對于兩罪關系的認識實際上存在一些偏差,甚至有學者認為特別法并不具有減輕根據(jù),主張適用重法定罪量刑。實際上從理論的分析中,矛盾的爭議焦點并非是兩罪之間關系的明確與該種關系處理方案的確定,而是對于罪刑設置合理性的質(zhì)疑,因而本文選擇以罪刑設置的合理性為關鍵點進行分析。關于金融詐騙罪罪刑設置的合理性,從金融詐騙罪具有的金融方面的特點入手,分析出金融詐騙罪實際上是一種對于金融管理秩序的損害,而這種管理秩序的損害又具體體現(xiàn)為對風險秩序的損害上,風險作為金融的特征之一,體現(xiàn)為收益或者損失的不確定性,因此如若沒發(fā)生金融詐騙行為,被害人的財產(chǎn)權益也并不會受到周嚴的保護,金融領域的財產(chǎn)損失與當事人對收益追求有著必然的關聯(lián),因此財產(chǎn)損失在金融詐騙罪中的可責罰性并沒有詐騙罪那么高。從風險的另一角度進行分析,風險秩序的破壞必然伴隨著財產(chǎn)權益的破壞,兩者之間的關系決定在金融詐騙罪的處理中財產(chǎn)權益是屬于風險秩序的一部分,因此對于財產(chǎn)權益的保護并非金融詐騙罪的法益,只是風險秩序的一種表象。在以非法占有為目的上,金融詐騙罪也表現(xiàn)出于詐騙罪相區(qū)別的地方,兩者所指的非法所有的目的應當進行區(qū)分,將金融詐騙罪的非法占有為目的認定為廣義上的。在實踐上也存在相印證的事實,首先從刑期的設置上,觀察出金融詐騙罪的法定刑均低于詐騙罪的法定刑,從具體的案例中進一步觀察發(fā)現(xiàn),金融詐騙罪在犯罪金額的計算上與詐騙罪存在明顯的區(qū)別,金融詐騙罪更為注重因犯罪行為所帶來的實際損失,此點是風險增加的具體體現(xiàn)。從法益方面,金融詐騙罪項下各罪名均存在不同的表現(xiàn)形式,但總結各表現(xiàn)均是圍繞風險秩序法益在變化。以非法占有為目的在實踐驗證上也符合了上述認定結論,但針對各罪名特點,在各罪名中表現(xiàn)形式不同,部分犯罪并非以所有為目的,而部分犯罪必然以所有為目的,這是由于金融項下也細分有融資、證券、保險等領域,在各領域具有不同的特點所致。從上述的理論與現(xiàn)象之中,可以得出結論,即金融詐騙罪與詐騙罪不可能成立想象競合關系,而只是法條競合關系,金融詐騙罪的罪刑設置合理,因而應當遵循特別法優(yōu)于一般法的規(guī)定,但是在具體問題的處理上,為達到罪刑相適應,對于過渡性行為的處理上應當在堅持以特別法定罪的基礎上,在量刑上適當從重,且同金額詐騙罪的量刑幅度為限。對于金融詐騙罪非法占有為目的進一步的改進意見上,提出了應當將資金鏈斷裂等高風險信息披露義務法定化,并逐步減輕金融詐騙罪的法定刑。
[Abstract]:The dispute between the concurrence of the crime of financial fraud and the crime of fraud, from the original law of law competition, the heavy method of supplementary application and the special law precedence, the development to the great concurrence theory, the imaginative concurrence theory, can not get a more definite answer in theory when dealing with the relationship between the two crimes, and thus lead to a lot of practice. The confusion and further development will lead to the reduction of the credibility. In order to solve the problem, to seek the solution of the relationship between the two crimes, this article starts with the substantive relationship between the crime of financial fraud and the crime of fraud, and analyzes the special and general relationship between the two crimes, which is not clear on the dividing line, and therefore there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional act. In fact, there are some deviations in the original understanding of the relationship between the two crimes, and even some scholars believe that the special law does not have the basis of mitigation, and advocates the application of heavy law conviction and sentencing. In fact, from the theoretical analysis, the focus of the dispute is not the definition of the relationship between the two crimes and the determination of the relationship treatment scheme, but the setting of crime and punishment. The rationality of this article is the key point in the analysis of the rationality of the crime setting. The rationality of the crime and punishment of the crime of financial fraud, from the financial aspects of the financial fraud, is a kind of damage to the financial management order, and the damage of this kind of management order is also analyzed. As one of the characteristics of the risk order, the risk is one of the characteristics of the finance, which is reflected in the uncertainty of the income or loss. Therefore, if there is no financial fraud, the property rights and interests of the victim will not be protected by the week strict. The property loss of the financial field has an inevitable connection with the parties' pursuit of income. This property loss in the crime of financial fraud is not as high as the crime of fraud. From another point of view of the risk, the damage of the risk order must be accompanied by the destruction of the property rights and interests. The relationship between the two determines that property rights and interests are part of the risk order in the treatment of the crime of financial fraud. The protection of interest is not the legal benefit of the crime of financial fraud, but a manifestation of the risk order. In the case of illegal possession, the crime of financial fraud is also shown out of the place where the crime of fraud is distinguished. The illegal purposes of the two should be distinguished, and the non legal possession of the crime of financial fraud is defined as a broad sense. There is also an evidence of the fact that the legal punishment of the crime of financial fraud is lower than the legal punishment of the crime of fraud. From the specific case, it is found that the crime of financial fraud is distinctly different from the crime of fraud in the calculation of the amount of the crime. This point is the concrete embodiment of the increase of risk. From the legal interest, there are different forms of expression in all the crimes under the crime of financial fraud, but all the manifestations are around the change of the legal interest of the risk order. The purpose of illegal possession is also consistent with the above conclusion, but in accordance with the characteristics of each crime, it is shown in the various charges. In different forms, part of the crime is not for all purposes, and part of the crime is bound to be all for the purpose. It is due to the subdivision of finance, securities, insurance and other fields, which have different characteristics in various fields. From the theory and phenomenon mentioned above, it can be concluded that the crime of financial fraud and the crime of fraud can not be established. To imagine the relationship between competition and concurrence, the crime and punishment of the crime of financial fraud are set reasonably, so the special law should be followed by the provisions of the general law. However, in the treatment of the specific problems, in order to adapt to the crime, the handling of the transitional behavior should be carried out on the basis of the special legal crime and the proper punishment on the sentencing. And the scope of sentencing of the crime of the same amount of fraud is limited. On the further improvement of the purpose of the illegal possession of the crime of financial fraud, it is proposed that the obligation of high risk information disclosure should be legalized and the legal punishment of the crime of financial fraud should be gradually reduced.
【學位授予單位】：江西財經(jīng)大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D924.3
本文編號：2154195
[Abstract]:The dispute between the concurrence of the crime of financial fraud and the crime of fraud, from the original law of law competition, the heavy method of supplementary application and the special law precedence, the development to the great concurrence theory, the imaginative concurrence theory, can not get a more definite answer in theory when dealing with the relationship between the two crimes, and thus lead to a lot of practice. The confusion and further development will lead to the reduction of the credibility. In order to solve the problem, to seek the solution of the relationship between the two crimes, this article starts with the substantive relationship between the crime of financial fraud and the crime of fraud, and analyzes the special and general relationship between the two crimes, which is not clear on the dividing line, and therefore there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional behavior. Therefore, there is a transitional behavior, therefore, there is a transitional act. In fact, there are some deviations in the original understanding of the relationship between the two crimes, and even some scholars believe that the special law does not have the basis of mitigation, and advocates the application of heavy law conviction and sentencing. In fact, from the theoretical analysis, the focus of the dispute is not the definition of the relationship between the two crimes and the determination of the relationship treatment scheme, but the setting of crime and punishment. The rationality of this article is the key point in the analysis of the rationality of the crime setting. The rationality of the crime and punishment of the crime of financial fraud, from the financial aspects of the financial fraud, is a kind of damage to the financial management order, and the damage of this kind of management order is also analyzed. As one of the characteristics of the risk order, the risk is one of the characteristics of the finance, which is reflected in the uncertainty of the income or loss. Therefore, if there is no financial fraud, the property rights and interests of the victim will not be protected by the week strict. The property loss of the financial field has an inevitable connection with the parties' pursuit of income. This property loss in the crime of financial fraud is not as high as the crime of fraud. From another point of view of the risk, the damage of the risk order must be accompanied by the destruction of the property rights and interests. The relationship between the two determines that property rights and interests are part of the risk order in the treatment of the crime of financial fraud. The protection of interest is not the legal benefit of the crime of financial fraud, but a manifestation of the risk order. In the case of illegal possession, the crime of financial fraud is also shown out of the place where the crime of fraud is distinguished. The illegal purposes of the two should be distinguished, and the non legal possession of the crime of financial fraud is defined as a broad sense. There is also an evidence of the fact that the legal punishment of the crime of financial fraud is lower than the legal punishment of the crime of fraud. From the specific case, it is found that the crime of financial fraud is distinctly different from the crime of fraud in the calculation of the amount of the crime. This point is the concrete embodiment of the increase of risk. From the legal interest, there are different forms of expression in all the crimes under the crime of financial fraud, but all the manifestations are around the change of the legal interest of the risk order. The purpose of illegal possession is also consistent with the above conclusion, but in accordance with the characteristics of each crime, it is shown in the various charges. In different forms, part of the crime is not for all purposes, and part of the crime is bound to be all for the purpose. It is due to the subdivision of finance, securities, insurance and other fields, which have different characteristics in various fields. From the theory and phenomenon mentioned above, it can be concluded that the crime of financial fraud and the crime of fraud can not be established. To imagine the relationship between competition and concurrence, the crime and punishment of the crime of financial fraud are set reasonably, so the special law should be followed by the provisions of the general law. However, in the treatment of the specific problems, in order to adapt to the crime, the handling of the transitional behavior should be carried out on the basis of the special legal crime and the proper punishment on the sentencing. And the scope of sentencing of the crime of the same amount of fraud is limited. On the further improvement of the purpose of the illegal possession of the crime of financial fraud, it is proposed that the obligation of high risk information disclosure should be legalized and the legal punishment of the crime of financial fraud should be gradually reduced.
【學位授予單位】：江西財經(jīng)大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D924.3
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