A Study On The Judicial Cognizance Of Contract Fraud

This thesis studies the judicial cognizance of contract fraud in the perspective of crime and non-crime. Although the crime of contract fraud and the Contractual civil violations should be regulated by the criminal law and the civil law, which are different in essence, the relationship of them is easily confused in the judicial practice. The thesis aims at specifying the bounds of crime and non-crime of contract fraud and contractual civil violations. The thesis can be divided into six chapters in general structure.Chapter one is introduction. Contract fraud and contractual civil violations are two activities totally different in nature, but in judicial practice, crime or non-crime is always hard to tell. Although the Constitutive requirements of contract fraud is clearly listed in the criminal law, problems still exist in the using of the law. Viewing from the value level, the achievement of the principle of crimes and punishment stipulated by law depends on the proper use of the criminal law when recognizing the crime. The judicial cognizance of crime or non-crime of contract fraud is the implementation the principle. Meanwhile, not all the illegal activities are criminal activities in criminal law. Only those most harmful activities are punished by criminal law. In the judicial cognizance of crime or non-crime of contract fraud, telling the less harmful civil activities from those activities that should be punished is just the requirement of the Tolerance of Criminal Law. So, the study of the judicial cognizance of contract fraud is valuable and practical. The scale of the judicial cognizance of contract fraud in the perspective of crime or non-crime contains two sections, the general judgment and the concrete judgment. In this chapter, the thesis also gives a brief introduction to the definition and feature of contract fraud, three types of contractual civil violations which separately belong to tort of contract fraud and contractual civil violation, the bound of crime or non-crime of contract fraud, that is, the difference between contract fraud and contractual civil violations, which is mainly about the bound of contract fraud and contractual civil fraudulent conduct.Chapter two is the principle and standard by which crime or non-crime is judged. First, the principal of the Tolerance of Criminal Law and directional and qualitative analysis must be followed when telling crime or non-crime. Proceeding from the tolerance of the criminal law, when judge contract fraud and non-crime, civil sanctions should be valued in order to protect the personal interests of civilians. Proceeding from the meaning of directional and qualitative analysis, the differences of contract fraud and non-crime lie in the degree of damage. Contractual civil violations that badly harm to the society is contract fraud. The standard of quality is an object standard of crime or non-crime. Second, the judging standard of crime or non-crime of contract fraud should strictly follow the essential standard of Social harmfulness and the legal standard of constitution of crime. This thesis suggests that the judgment of contract fraud and non-crime should be under the guidance of the Tolerance of Criminal Law and directional and qualitative analysis. This thesis starts with the relationship of criminal activities and tort and points out that the degree of harmfulness should be considered.Chapter three is the concrete cognizance of the object aspects of the crime. The different cognition to the property ownership of the object of a crime and the scale of the property of the object of crime has a great influence on the division of the bound of contract fraud and non-crime. The property ownership of the object of the crime should be understood in two aspects. First, the overall power of the property; second, the recovery of the possession status through legal procedural. The scale of the property in contract fraud should include those property interests. In this chapter, the thesis expounds with an emphasis on why this view is taken and explains that the traditional viewpoint should be improved in order to meet the requirements of the intervention of criminal law in the civil disputes with the complication of the property relation Under the condition of market economy.Chapter four is the concrete cognizance of the object aspects of the crime, which analyzes the bound of crime and non-crime from the viewpoints of the object aspect of contract fraud, including fraudulent conduct, results of damage and understanding error. Although the activity of contract fraud has concurrence with civil fraudulent conduct, the harmfulness to the society is different. The fraudulent conducts are also different in concrete performance and characteristics. As to the judgment of the property damage of victims in contract fraud, both quality and quantity should be considered. The quality of the property damage is the total damage of the victims in general condition, but the achievement of the trade also should be considered. The regulation of quantity of the property damage is embodied as the sum of conviction. On the understandingError of the other part, this thesis compares the understanding error of the victims of contract fraud and the major misunderstanding of the litigations in contractual disputes outside. And this thesis defines the judging standard of the victims'understanding error inside.Chapter five is the concrete cognizance of the subject aspects of the crime. Proceeding from the purpose of the subject aspect, this chapter tells the difference between contract fraud and non-crime in aspects of the subject recognition and the willing. The fundamental difference lies in the purpose of illegal possession. This thesis makes judicial cognizance of the purpose of illegal possession basing on objective facts of both sides. Illegal possession established at the moment the person get other's property. This time point is essential to the cognizance of contract fraud and non-crime. Contract fraud and non-crime could exchange under certain conditions.Chapter six is the judicial resolution of contract fraud and non-crime. According to the different circumstances of the mixture of criminal law and civil law, cases could be divided into three types,cases with connection, cases with concurrence and cases with difficulty. Taking relative judicial interpretation as reference, this thesis puts forward the solving mechanism of separating civil law from criminal law and carrying out criminal judgment first and expounds the legal responsibility and the concurrence issue of contract fraud and non-crime.