Research On The Legal Division Of Frauds

In recent years, with the economic development and the improvement of peoples living standard in our country, all kinds of frauds emerged, thereof civil disputes about frauds and various kinds of criminal fraudulent crime increase largely, which has done a great harm to the security of both public and private properties as well as our national social order.1.research of the nature of the frauds in civil law1.1 frauds in our national civil lawIn our country, the definition about frauds varies widely, each having its own both advantages and disadvantages. Although the definition about frauds is different, they all contain the following important elements: (1) the behavior has the fraudulent intention subjectively; (2) the behavior has carried out the fraudulent behavior objectively; (3) the victim is defrauded into the wrong judgment; (4) the victim makes the expression based on the wrong judgment. In our national civil law, there are relief principles to frauds: (1) reconciling relief; (2) mediating relief; (3) arbitrating relief; (4) lawsuit relief..1.2evaluation of frauds in foreign civil law1.2.1 Frauds in mainland legal system civil law(1) Frauds in French civil lawThe French jurists Jean Carbonnier believe that, the defrauding is one kind of dishonest behavior, which may occur when signing a contract and fulfilling the contract, and which refers to the sly use of methods to cause the other people to have the wrong understanding and thus to sign the contract. The 1109th, 1116th provisions in French People Statute book make the stipulation to the civil frauds.(2) Frauds in German civil law"German People Statute book" stipulated that, the expression which is made because of being deceived must be abolished.1.2.2 Civil Frauds in English and America legal system(1) Frauds in English civil law1) About wrong: Stipulates the contract that the litigant signed due to wrong understanding based on other peoples Fraud invalid and when the litigant advocated the contract is invalid, he may cite "being not my behavior principle". 2) Statement About wrong: stipulated the false Statement due to the litigant error and also those under the defrauding situation.(2) Frauds in American civil lawThe 2nd to 201st provisions in US "Unification Business Statute book" make the comprehensive integral stipulation to Frauds , which made the discrimination between wrong and frauds, and thought the biggest difference between frauds and wrong statement lay in that former intentional, but the latter is unintentional and innocent.2. Research of the nature of the frauds in criminal law2.1 frauds crime in our national criminal 1 law2.1.1 Ordinary frauds crimeThe frauds crime is based on the goal for possessing by illegal method, concocting a story or concealing the truth to cheat a large amount of public and private properties, which is the ordinary fraud crime. The fundamental structure of ordinary fraud crime is: The behavior carries out the fraud with the goal of illegal possession - opposite party has the wrong understanding -opposite party deal with the property due to wrong understanding - The behavior receives the property -victim gets the harm to property.2.1.2 Special frauds crime(1) Financial frauds crimeThe financial frauds crime refers to the crime which is based on the goal for possessing by illegal method, concocting a story or concealing the truth to cheat a large amount of public and private properties or the financial organization credit, and the destruction of finance management order. The financial crime includes: capital gathering fraud crime, the loan fraud crime, the bill fraud crime, the financial certificate fraud crime, the letter of credit fraud crime, the credit card fraud crime, the negotiable securities fraud crime and the insurance fraud crime altogether all together eight kinds of crimes.(2) Contract fraud crimeThe contract fraud crime refers to the crime which is based on the goal for possessing by illegal method, in signs, fulfills the contract by concocting a story or concealing the truth to cheat a large amount of private properties2.2 evaluation of fraud crime in foreign criminal law2.2.1 Fraud crime in mainland criminal law(1) Fraud crime in Japanese criminal lawThe definition of the crime from Japanese scholars refers to the crime that deceives the other people to obtain the belongings, or benefit according to punishment of the deceived, as well as other similar criminality. The crime includes: 1) Fraud crime, 2) beneficiary Fraud crime, 3) would-be Fraud crime, 4) Fraud crime by electronic accounting machine, 5) the above attempted crime.(2) Fraud crime in German criminal lawThe 263^rd in Germany "Criminal law" stipulate: first, the intention is oneself or the third person obtains the illegal property benefit by twisting or concealing the facts, enabling the other people to fall into the mistake, thus harms its property which Includes: The computer Fraud, the Fraud relief fund, the Fraud investment, the Fraud insurance money, swindle the currency and the admission ticket, the credit Fraud.2.2.2 Fraud crime in criminal law of English and America legal system(1) Fraud crime in English criminal lawFraud crime in English criminal law is stipulated by "Larceny Law in 1968" and Larceny Law in 1978 .in English criminal law, the Fraud crime includes the following several typical kinds: 1) crime that swindles the belongings through the cheating; 2) crime that Obtains the special benefit through the cheating; 3) crime that Obtains the service through the cheating; 4) crime that has caused the creditor to give up the creditor's rights or to avoid the payment duty by reducing the responsibility.(2) Fraud crime in American criminal lawIn the American criminal law and the English criminal law, the Fraud crime is similar. Although in American various states are not consistent regarding this crime stipulation, stipulation in most states is the same. In the American criminal law Fraud crime, the object of victim mainly includes: The service Fraud, Fraud using the vacation check, Fraud abusing the credit card, Fraud using the vacation advertisement, Fraud supposing the cheating and the computer Fraud and so on. 3. Distinction civil and criminal Fraud crime3.1 difference between the two in legal origin aspectThe two has the strict differences in the use of civil legal standard and in the criminal law standard. In "General provisions of the civil law", "Contract Law", "Guarantee Law" and so on, the use is "the cheat", although in "Criminal law" has simultaneously used "the cheat", "the deceit" and "the cheating3.2 differences of the two in subjective element3.2.1 Differences in subjective intentionCivil Fraud, may be directly intentional, may also be indirectly intentional, but the Fraud crime is subjectively directly intentional, also has the goal of illegally holding the other people belongings.3.2.2 The goal is differentAlthough the behavior of Civil Fraud and Fraud crime has the same subjective intention, the goal of two subjective intentions is different.3.2.3 The time of intention producing is differentBecause the civil Fraud and the Fraud crime require the different subjective content, the time of intention producing is also different.3.3 differences of the two in objective element3.3.1 The way of behavior is differentThe Fraud crime in subjective psychology is directly intentional, it thus inevitably adopts the positive achievement way, this is different from the civil Fraud.3.3.2, the Fraud content is different In the civil Fraud, the cheating behavior has no the intention of not fulfilling duty determined by all the civil legal relationship, but only use the deception measure or does not fulfill the duty to inform so as to cause the right duty to violate the fair principle, thus seeks for benefit higher than that of the original right.3.4 differences of the two in legal consequenceBecause the type of the society adjustment is different, the angle is different, thus the legal consequence the different family rules are different. The two belongs to the different family rules and regulations adjustment, thus has the different legal consequence.4. Legal consummations about Fraud crime4.1 Legal consummations about civil Fraud crimeThe author believed that, we should consummate our legal system country about civil Fraud crime from at least following four aspects:(1) Our civil law has not explicitly stipulated general provisions of the Fraud crime and the potency of the third person. Profiting from foreign legislation, the legal precedent, unifying the actual situation of our country, we should stipulate it in "General provisions of the civil law" or "Contract Law".(2) Although our country theoretically takes the silence as one kind of cheating but "General provisions of the civil law" and "Contract Law" regarding did not make the explicit stipulation to the non-doing, namely whether silence constitutes the cheat or not.(3) In order to effectively protects the deceived person's benefit, to the situation regarding the damage compensating request right and the cancellation right, we must entrust with the cheated person right to choose to exercises the request right.(4) We must eliminate this contradiction in the legislation, agree to stipulate the civil behavior because of cheating as behavior which might be changed or abolished.4.2. Legal consummations about criminal Fraud crime.The author thought the legal consummations about criminal Fraud crime mainly has following several points to:First, we should adapt to society's development, change Fraud crime structure, increase the new charge, causes the stipulate related to Fraud crime comprehensive and in detail and Unifying our country actual situation to suitably increase several charges. The author thought should first mainly increase following several charges: (1) international trade Fraud crime. (2) Fraud crime using the electronic accounting machine (3) Fraud crime of going bankrupt.Second, our country criminal law should increase the lowest legal punishment about the Fraud crime suitably, and in this way can we strike crime powerfully, and prevent the crime before their happening.