诉讼证明的困境与金融诈骗罪之重构

刑法所规定中的“非法占有目的” ,是个在司法实践中常令公诉机关难以证明的问题。对此 ,司法解释与各种学理解释都未能提供合理的解决办法。为彻底、有效地摆脱司法实践中对该罪的证明困境 ,应对刑法的相关规定作修改 ,以使不具有“非法占有目的”的金融诈骗行为也能依照刑法规定予以处罚

Dilemma of Proof in Criminal Procedure and Reconstruction of the Crime of Financial Fraud

In judicial practice, it is very difficult for the prosecuting organ to proof the "purpose of illegal possession" provided for in the Criminal Law. No reasonable solution to this problem has been provided by various judicial as well as theoretical interpretations. To completely and effectively extricate it self from this predicament, China should revise the relevant provisions in its Criminal Law so that acts of financial fraud not necessarily committed for the purpose of "illegal possession" can also be punished according to the Criminal Law.