"被害人自愿"与诈骗罪认定

行为人通过实施欺诈手段取得财产的行为不一定构成诈骗犯罪。诈骗犯罪中的欺诈手段和其他侵犯财产罪中实施的欺诈手段的根本区别是 :诈骗犯罪中的欺诈手段使被害人产生错误认识 ,其基于意志自由“自愿交付”财产。区分诈骗罪与盗窃、抢夺、抢劫、敲诈勒索等其他以实施欺诈手段侵犯财产的犯罪 ,必须从被害人在受到欺诈时的认识因素和意志因素两个方面来进行。

The Victim's Willingness And The Conviction of Fraud

The offenders who had obtained property by deception,have not necessarily committed the crime of swindling. The basic difference between deception in crime of swindling and other crimes against property is-----deception in crime of swindling make the victims have error cognition,and they deliver property willingly based on their error cognition. To distinguish crime of swindling and other crimes against property such as crime of theft,crime of robbery,crime of forcible seizure when the offenders have also obtained property by deception,we must both take the victims' error of cognition and their determination into account.