二维码案件中诈骗罪说的质疑与盗窃罪说的论证

在偷换商家二维码取财的案件中，商家既是财产损失者，也是刑法上的被害人；顾客既没有产生规范意义上的认识错误，也没有基于处分意思处分财产，既非被骗者，也非被害人。该类案件取财行为的性质不属于双方沟通交往型的诈骗犯罪，无论是将案件理解为两者之间的诈骗还是三角诈骗，都面临着难以肯定基于处分意思的实行行为等障碍。二维码案件的实质内容是违反被害人本意的盗窃行为，其行为对象是商家的债权这一财产性利益；肯定对占有的规范判断和对债权的观念占有，也完全可能。在对处分行为的主观要求与对占有判断的观念理解、规范理解之间，将二维码案件定性为盗窃罪既是法益侵害说更可能采用的立场，也有助于严而不厉思想的落实。

A Challenge to the Theory of Fraud in QR Code Cases and Demonstration on the Theory of Theft

In the cases of secretly changing the merchant’s QR code to get money, it is necessary to distinguish the victim in civil law from the victim in criminal law. The merchant is not only a victim of property loss, that is, a victim in civil law, but also a victim in criminal law. The customer neither has cognitive deviation in the normative sense, nor disposes the property based on the disposal intention. The customer is neither the cheated nor the victim.The proposition that the actor in QR code cases establishes the crime of fraud, obviously tries to expand the scope of the act of disposition in fraud. And the most important reason for the actor not to be convicted of fraud is that both the customer and the merchant lack the corresponding act of disposition. The nature of this kind of behavior to get money is not an interactive crime of mutual communication. Whether the case is understood as fraud between the two or tripartite fraud, it is difficult to confirm that implementation behavior based on disposal intention exists.Whether from the perspective of the substantiality of crime or from the perspective of the purpose of punishment, the behavior of secretly changing the merchant’s QR code to get money should be treated as a property crime rather than being recognized as not guilty. Treating the behavior that infringes the legal interests and has the necessity to be prevented as a property crime does not violate the principle of caution of penalty in criminal law, but it is more conducive to exert the function of criminal law.QR code cases are the theft against the original intention of the victim, and the object of the behavior is the property interest of the merchant’s creditor’s rights. By stealing or secretly changing the QR code, the actor only obtains the status of the creditor, and creates conditions to obtain other people’s property interests or creditor’s rights. At this time, the actor has not yet obtained the actual property interests, and there is only an abstract danger to the creditor’s rights of the merchant. By now the actor just conducts the preparation behavior. Only when the customer scans the code, the danger of infringement of creditor’s rights is specific, realistic and urgent enough, and should be substantially recognized as the implementation behavior of theft. When the actor’s account receives money, his theft is completed. At this moment, the actor not only obtains but also realizes the creditor’s rights. In the final analysis, QR code cases are the crimes of completely against the victim’s original intention rather than “self-damage” crimes. Therefore, it is necessary to recognize the “conceptualization of the property interest possession judgment” to appropriately expand the establishment scope of the crime of theft and bring such cases into the legal network of theft.Generally speaking, the theory of theft is result oriented and the theory of fraud is behavior oriented. However, it does not violate the basic logic of criminal law that criminal law must take behavior as the core to analyze the problems. Similarly, it does not “unconsciously put the focus of attention on loss compensation”. On the contrary, it just emphasizes the substantive judgment of legal interest infringement rather than formal understanding. Moreover, in judicial practice, the theory of theft also helps to tighten the criminal law network and avoid the punishment loopholes caused by the theory of fraud, which also contributes to implementing the idea of strict but not severe.