重构欺诈制度:一个实用主义的分析

纵观欺诈的制度史,经过基督教的道德化改造,对欺诈的规范更强调其主观意图,最终呈现为总则中的欺诈规范,针对法律行为(合同)的效力。这一进路未能看到欺诈制度背后作为加速机制的国家权力。国家和市场在打击欺诈时,可以是同路人,但也可能存在紧张关系。尽管传统民法将欺诈行为与胁迫行为并列加以规范,但就行为模式来看,二者差异明显,欺诈制度与胁迫制度的现代决裂势在必行。欺诈应摆脱合同与侵权的人为区隔,进而充当一种法律救济的触发装置:一方面,应当借鉴刑法上受害人教条学的观念,骗局过于明显且有悖俗内容,而受害人自己却积极参与,不应获得补偿(但不排除引发对加害人的公法制裁);另一方面,在当事人信赖受到影响时,应具体化、个案化和客观化地考察当事人的具体状况从而提出解决方案。欺诈应当重返罗马法的模式:对欺诈的规范优先由特别法进行。

Reconstruction of the Rule of Fraud:A Pragmatic Analysis

Throughout the history of fraudulent institutions, after the moralizing of Christianity, the norm of fraud emphasizes its subjective intentions, which is included in the German Civil Code and presented as a fraud norm in the general rules, and the effectiveness of legal acts(contracts). The weakness of this approach lies in the failure to view the state power behind the fraud system as an acceleration mechanism. Power and market can be peers when fighting fraud, but there may also be tensions. From the perspective of behavioral patterns, there are obvious differences between fraud and coercive behaviors, and the modern seperation of the fraud system and the coercive system is imperative. Fraud is not a strict legal concept, it should be free from the artificial division of contract and infringement, as a trigger for legal relief. On the one hand, we should draw on the concept of victim’s dogmatics in criminal law. The scam is too obvious and has an immoral content, but the victim himself is actively involved and should not be compensated( but public law sanctions should not be ruled out);on the other hand, when the trust of the parties is under impact, it should be specific, case-by-case and objective to examine the specific situation of the parties and propose solutions. That is to say, fraud should return to the model of Roman law: the regulation of fraud is preferentially carried out by special laws, and the fraud of the General Principles of Civil Law is not a common factor extracted, but a supplementary norm that is not regulated in other fields.