摘要： 合同诈骗罪是纯粹经济犯罪,财产权并非其保护法益。合同诈骗的不法本质在于,行为人预期严重不履行合同义务,却诱骗被害人履行合同义务,从而对以合同为载体的交易信用产生破坏,降低一国市场中合同履约环境的总体评价水平及相应的履约保证功能。故而合同诈骗罪的保护法益是交易合同信用。以此为基础,应将不法评价落点从“财产”转向“合同义务”,并以“预期严重不履行”为核心,将合同诈骗罪的基本构造重述为:行为人在签订、履行合同过程中虚构或隐瞒自己预期严重不履行合同义务的事实→对方当事人(对行为人严重不履行合同义务)产生认识错误→对方当事人基于认识错误履行合同义务→行为人拒不履行对应合同义务。通过重塑合同诈骗罪,其与诈骗罪之间并非法条竞合而是想象竞合关系,合同欺诈是否成立合同诈骗可根据“新基本构造说”认定,从而解决罪量倒挂和刑民界限难题。

关键词: 合同诈骗罪, 秩序性法益观, 交易合同信用, 合同欺骗行为, 刑民区分

Abstract: The crime of contract fraud is a purely economic crime, and its legally protected interest is not property rights.The essence of the illegality of contract fraud is that the perpetrator deceives the victim into performing contractual obligations while anticipating his own serious non-performance, thereby undermining the transaction credit embodied in the contract and degrading the market's overall evaluation level of contract performance environment in a country as well as its corresponding function of guaranteeing such performance.Therefore, this article proposes that the legally protected interest of the crime of contract fraud is the credit of transactional contract.Based on this premise, the focus of illegality assessment should shift from “property” to “contractual obligations”, with “anticipated serious non-performance” at its core.The fundamental structure of the crime of contract fraud can be restated as follows: In the process of signing or performing a contract, the perpetrator fabricates or conceals the fact of his anticipated serious non-performance of contractual obligations→the other party develops a mistaken belief regarding the perpetrator's serious non-performance of contractual obligations→the other party performs his own contractual obligations based on this misapprehension→the perpetrator refuses to fulfill his corresponding contractual obligations.The reconstruction of the crime of contract fraud not only clarifies its relationship with the crime of fraud as one of ideal concurrence rather than normative concurrence, but also provides a new framework—that is the “new fundamental structure theory” —to determine whether a contract fraud amounts to the crime of contract fraud, thereby solving the problem of inverse relationship between quantitative degree of crime and criminalization threshold and the demarcation between criminal offense and civil act.

Key words: Crime of Contract Fraud, Doctrine of Order-based Legal Interest, Credit of Transactional Contract, Contract-deceiving Behavior, Distinction Between Criminal Offense and Civil Act