關於虛構事實勒索財物的案件的定性，判例上存在三種不同觀點。理論上多認為同時構成詐騙罪與勒索罪，但兩罪說存在理論難題：只有一個法益侵害事實，不可能是想像競合；兩罪之行為無重合，不可能是法條競合；兩罪的法定刑輕重差別不大，不可能形成包括一罪。實際上，兩罪是互斥關係，應從主、客觀相結合的犯罪結構進行事實認定。虛構事實勒索財物者構成勒索罪，先脅迫後欺騙者構成詐騙罪，要注意區分不作為勒索與詐騙、乘人之危的關係。

There are three different opinions to the criminalization of fabricating facts and extorting property in judicial precedent. Constituting the crime of fraud and the crime of blackmail simultaneously is a major theoretical perspective, which has defects: only one fact of infringement of legal interest leave no room for imaginative jointer of offenses; there is no overlap between the two offenses’ actusreus, so there is no overlap in the two criminal law articles; their difference in legal penalties is too little to let one offense include another. Actually, these two offenses are in a relationship of mutual exclusion and the fact of a case should be identified by the crime structure that combines the subjective and the objective. Those who fabricate facts and extort other’s belongings are guilty of blackmail, and who intimidates first and then defrauds the victim’s money and property is guilty of fraud. The distinguishment between omission blackmail and fraud should be paid attention to.