试论诈骗罪中的处分行为

Disciplinary Actions of the Crime of Fraud

摘要: 虽然在刑法条文中没有明确规定处分行为是诈骗罪的独立构成要素，但在传统的刑法理论中，诈骗罪构成行为中的处分行为是区分诈骗罪与其他财产性犯罪的重要依据，所以对处分行为多方面的清楚认定是非常有必要的。刑法中的处分行为与民法中的处分行为概念不完全等同，刑法上的处分行为概念的外延大于等于民法理论中的处分行为。关于处分行为的认定也分有多种学说，如所有权转移说、占有转移说、持有转移说等。处分财产的实质应当是对财物占有的转移。受害者在向实施欺骗行为的诈骗者转移财物时应当做到主观意识与客观行为相统一，即受骗人已经认识到所处分的财产并基于错误认识自愿地处置给行为人。本文将从处分行为的概念、实质、主客观层面、主体等多角度展开分析。

Abstract: Although in criminal law, there are no clear definitions that disciplinary actions are a kind of independent constituent element of fraud crime, in the traditional criminal law theories, such disciplinary actions are used as some important ground that distinguishes fraud from other property crimes. Therefore, it is very necessary to clearly identify disciplinary actions through various aspects. The concept of disciplinary action mentioned in criminal law is not completely equal to that listed under civil law, as the extension of the former is larger than or equal to the latter. Furthermore, there are a variety of theories regarding the identification of disciplinary actions, such as transfer of ownership, transfer of occupation and transfer of tenure, and so on. The essence of the disposition of property should be the transfer of possession of the assets. There should be a consistency in the subjective awareness and objective behavior of the victim, during the process of transferring their property to the defrauder. In other words, the deceived is already fully aware of the property to dispose, and based on some wrong understanding is willing to transfer it to the defrauder. The paper proceeds to unfold its analysis from multiple perspectives of the concepts, nature, subjective and objective levels, and the subject of disciplinary action.