The Promotion Of The Theory Of Unnecessity Of Disposition Awareness In Telecommunication Fraud

The prosperity of communication and mobile internet technology,coupled with the background of big data,has led to the continuous emergence of many new types of internet crimes.The high incidence of telecommunications network crimes has made it one of the strongest crimes in the country to crack down on.In telecommunications network crimes,there is significant controversy over the conviction of cases where the perpetrator uses deception to cause the victim to deliver property without disposition awareness.The essence of this controversy is whether the establishment of disciplinary action is necessary for the victim to have disposition awareness,and whether the establishment of the crime of fraud relies on disposition awareness as the key.And the theoretical community can divide this into the necessary theory of disposition awareness,the not to mention theory,and the distinction theory.By analyzing the judgment basis and conviction conclusion of 200 judgment documents,it is found that the application of the elements of disposition awareness is mostly for offline traditional fraud,and is rarely applicable in telecommunications network fraud cases.As the mainstream disciplinary consciousness,it is necessary to say that it reveals limitations and falls into theoretical difficulties when dealing with new types of cybercrime.If it is necessary to follow the principle of punishment,on the one hand,it will result in many cases that should have been convicted of fraud being punished for theft instead,which is not in line with the principle of legality of crime and punishment;On the other hand,if the crime of theft is not punished and the crime of fraud cannot be established,there will be a gap in punishment,which is not conducive to cracking down on telecommunications network property infringement crimes.In theory,the awareness of punishment needs to be highly dependent on the factors of the victim,and it cannot be denied that the punishment behavior is established and constitutes fraud simply because there is no awareness of punishment.To determine the crime of fraud,it is necessary to first examine whether the defendant’s behavior constitutes fraudulent behavior in the crime of fraud,and the fraudulent behavior should be sufficient to cause the victim to misunderstand and punish the specific danger of the behavior.To determine the crime of fraud,it is not necessary to examine whether the victim has a sense of punishment.By using the principle of direct property loss to distinguish between fraud and theft,complex cases of telecommunications network property infringement can be effectively judged.Compared with the necessity of punishment awareness,the disposition awareness,not to mention that it constitutes a crime of fraud,focuses more on the objective behavior of the perpetrator,which is more consistent with the objectivism of criminal law,and the judgment method is more concise and clear.The awareness of punishment should not be said to be accurately and reasonably applied in cases of telecommunications network property infringement,and the resulting conviction conclusion is more in line with the requirements of criminal law doctrine.Based on the high incidence of telecommunications network fraud crimes,the awareness of punishment should not be said to be able to better respond to the attitude of judicial authorities in cracking down on telecommunications network fraud.