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一般认为,交付行为是诈骗罪中未被记述的构成要件,其存在与否是区分诈骗罪与其他犯罪的实质要素。通说对于诈骗罪的定性一般着眼于被害人基于错误而进行的财产交付,并且限定为观念上财产权的移转。从这一结论出发,交付的涵义在刑法的规范解释和司法实务中会引起诸多矛盾和不妥。交付的概念应当从规范的角度作出,同时应当将观念上的交付从诈骗罪构成要件中予以排除。
It is generally believed that delivery is a component not described in fraud and its existence is an essential element to distinguish between fraud and other crimes. The general definition of fraud is generally based on the victim’s faulty delivery of property and is limited to the transfer of the concept of property rights. From this conclusion, the meaning of delivery will cause many contradictions and errors in the normative interpretation and judicial practice of criminal law. The concept of delivery should be made from a normative perspective, and at the same time the concept of delivery should be excluded from the elements of fraud.