合同诈骗罪兜底条款范围之界定

The Definition of the Scope of Contract Fraud Crime Pocket Clause

摘要: 兜底条款解释的“无计划性”在适应经济社会高速发展的同时，维持了法的稳定。在合同诈骗罪兜底条款适用中，解释规则的不确定导致合同诈骗罪兜底条款范围的模糊，合同诈骗罪呈现口袋化趋势。合同诈骗罪兜底条款的范围界定需坚持罪刑法定原则，基于经济犯罪的二次违法、同质性特征，以符合构成要件为基本，运用“列明行为为参照”的同类解释规则进行合理判断，才能够兼顾社会治理与经济发展的双向发展。

Abstract: The “unplanned” interpretation of the bottom line clause not only adapts to the rapid development of economy and society, but also maintains the stability of law. In the application of the pocket clause of contract fraud, the uncertainty of interpretation rules leads to the ambiguity of the scope of the pocket clause of contract fraud, and the crime of contract fraud presents a tendency of pocketing. The scope definition of the cover clause of the crime of contract fraud should adhere to the principle of legal punishment, based on the characteristics of the second violation and homogeneity of economic crimes, based on meeting the constitutive requirements, using the same interpretation rules of “listed behavior as the reference” to make a reasonable judgment, in order to give consideration to the two-way development of social governance and eco-nomic development.