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终审判决在实体上和程序上解决了许霆案,但是在理论上,本案仍然是一个非常值得探讨的对象,可以预见其探讨的成果将有助于现行刑法典与罪刑法定、罪责刑相适应原则更深层次的契合,乃至推动现行刑法典的完善和发展。本文就许霆的行为是否构成诈骗罪、信用卡诈骗罪、盗窃罪进行定性分析,并论证其行为构成不当得利,同时分析认为应当对此类不当得利行为考虑入罪化处理,从实然和应然两个层面确定其最终定性和处理。
The final judgment solved the Xu Ting case physically and procedurally, but in theory this case is still a very worthy subject to be explored. It is foreseeable that the results of its discussions will contribute to the principle that the current criminal code should be compatible with the statutory punishment of crimes and punishments, Deeper fit, and even promote the perfection and development of the existing criminal code. This article on the behavior of Xu Ting constitutes a fraud, credit card fraud, theft of the qualitative analysis and demonstration of its behavior constitute unjust enrichment, at the same time that should consider such unjust enrichment behavior of criminalization, from the real and should However, at two levels to determine its final qualitative and processing.