論詐欺罪詐術之意涵

Abstract

刑法詐欺罪是很常見的犯罪，但在個案適用上仍有不少疑義。本文嘗試說明詐欺罪的保護法益，是人對財產的支配關係，並證立以制度性社會交往模式，即被人們廣泛踐行以相互承認彼此主體性的對待模式，作為判斷詐術所輸出風險在刑法上容許與否的標準，並將之適用到具體案例中。制度性社會交往模式並無法以某個外於此觀點的方式來理解，而只能將自己置身其中來尋求。本文在具體案例的運用也因此僅是某一瞬間對制度的觀察與想像，比起全然的同意或批評，本文所希求的毋寧是更多的思考與對話。

Fraud under criminal law is a commonly committed crime, but there are still quite a few doubts as to its application in individual cases. This study will attempt to explain how the legal interest of fraud crime is the right of a person to dispose of one’s property, as well as seek to establish institutional social interaction, i.e. the widely practiced modes of interaction in which people acknowledge the subjectivity of one another, as the standard by which fraud-exported risks may be judged as unacceptable in criminal law, and its applicability to concrete, individual cases. Institutional social interaction can’t be understood by another concept external to itself, but may only be understood within itself. The concrete cases utilized in this study are therefore merely a momentary observation and conception of institutions. Hence, this study aims to stimulate more thought and dialogue on the matter rather than arousing wholesale agreement or disapproval.