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工程建设领域的职务侵占罪与合同诈骗罪的区分与其他领域相比并无太大差异,本文通过对两个典型案例的分析,认为在司法实践中区分二者的关键主要有两点。第一,犯罪手段不同,即是否利用了职务之便还是仅仅利用合同诈骗。第二,犯罪对象不同,即非法占有的财产到底是本单位的财产还是合同相对方的财产。在判断时要根据犯罪手段间的关系以及最终侵犯的财产的性质来加以考虑,二者缺一不可。同时要注意对单位、单位成员身份、利用职务之便、合同诈骗罪中合同的性质以及利用合同诈骗等概念的含义进行准确的界定。
The distinction between job embezzlement and contract fraud in the field of engineering construction is not much different from other areas. Based on the analysis of two typical cases, this paper argues that there are mainly two key points in judicatory practice in distinguishing the two. First, different means of criminality, that is, whether to take advantage of their position or just use contract fraud. Second, different targets of crime, that is, illegally possession of the property is the property of the unit or the opposite party’s property. Judgment should be based on the relationship between the means of criminality and the nature of the property ultimately infringed, both of which are indispensable. At the same time, attention should be paid to the accurate definition of the concepts such as the identity of units and units, the use of their positions, the nature of the contract in contract fraud and the concept of using contract fraud.