| The thesis combs the legislation of fraud of PRC and the United Kingdom, Japanand Taiwan District on the perspective of the historical evolution of the payment. Onthis basis, the paper focuses on the impact of different methods of payment on thefraud crime's legislation, judicial and theoretical research. The paper can be dividedinto two parts: the introduction and the body. The body of the paper can be dividedinto five parts based on the content layout: introduction of payment (Chapter I);impact of legislation (Chapter Ⅱand Ⅲ); impact of theory (Chapter IV, V and VI);impact of justice (Chapter VII); suggestions for improvement (Chapter VIII).The introduction explains the value of topics to study, research status and theinnovation and shortcomings of the paper. Payment has been changed significantly innearly four decades, and the relevant legislation of fraud in some countries andregions has also been frequently changed, the new justice issues emerged during thesame period. Discussing the theme of "The Impact of the Evolution of Payment on theFraud" will contribute to improve the relevant legislation and solve the relevantjudicial problems. In addition, some generally recognized views had been challengedby some fraud cases using new payment methods. Studying this thesis is conducive tocomplete the related theories. Although the way of payment and the crime of fraudhas got great importance from scholars in related fields, and achieved the fruitfulresearch results, academic concern about the payment and fraud is like two parallellines and few people study the two themes in one paper. The innovation of the paperis mainly reflected in research perspectives, research methods and theoretical views.However, there are some shortcomings in the paper, such as the collection and adoption of the material, the coordination of paper system and depth of theoreticalstudies.Chapter I introduces the concept of payment and several major payments inaccordance with the general generated order. The earliest method of payment–"Paying with goods" was born after the commodity exchange generated, and has beenthe main method of payment before the period in Spring and Autumn and WarringStates. During this period, the monetary system in China was basically formed, andthe currency became the main method of payment from then on. But as the officialrecognized method,"Paying with goods" was quitted the historical stage was in thelate Ming dynasty. Today, this method has evolved into "Exchanging Phenomenon"and "Barter". In China, the manifestation of the currency has gone through thefollowing process: shells, beads, iron, copper, gold and silver. The level of propertycrime's harm can be directly quantified with the emergence of currency. It laid thefoundation for the adaptation of Crime and Punishment realized on crime. Thepayment of financial bills originated in the Tang Dynasty and became one of themajor methods in the Northern Song Dynasty. Then gradually evolved into threeforms: the checks, promissory notes and the bills of exchange. The letter of creditbegan to flow into our country in the period of the Republic of China. Since then,some financial bills such as bank certificates of deposit, credit cards and creditvouchers gradually became the important methods of payment in different fields. Andnow, the electronic payments derived from the payment method of credit card led tothe significant changes of the payment method in the whole world. When the paymentmethods evolved step by step, fraud techniques has been changed at the same timeand the identification of fraud has been impacted directly or indirectly.Chapter Ⅱ elaborates the evolution of payment methods and the simultaneousfraud criminal status of legislation in China. In the period that "Paying with goods"was in dominant position, the fraud crime performs in the common form and themodus operandi is relatively simple. Therefore, legislators mostly classified the fraud,deceive for officials, and making and selling shoddy goods as one class—deceivingcriminal. At the same time, the rulers believe that most fraud crimes may destroy orthreaten the governing order, so they formulated a very severe penalty to fraud crimes.After entering the period of currency, fraud modus operandi became more and more,and the related charges increased gradually: Casting metallic currency privately, and deception to apply for property, deceiving treatment for money after such traditionalfraud crime as obtaining money or goods by official false pretense and official fraud.In the Law of Tang, the charges related to fraud added up to six and were separatedwith other seven kinds. In the following dynasty, the structure was maintained withlittle change. To the Qing Dynasty, there were four charges for the purpose of illegalpossession of property: Fraud for the property, fraud to obtain benefits, often fraudand Quasi-fraud. Such legislation was later used in Taiwan. In1979, the first criminallaw only provided one charge-the crime of fraud in China, and the Criminal lawspitted it into ten charges in1997. Credit card and finance bills is the major forms ofitem payment. In view of the forged ticket playing an important role in the financialfraud, the Criminal law added the crime of forging or altering financial bills. Later,legislature increased the charges against fraud-related behavior or a new type fraud asthe wide use of credit card and prominent harm of keeping and delivering false cards.Since21st century, the electronic payments in our country begin to develop andrapidly used in common. The manifestation of fraud has undergone major changesbecause of the changes of the electronic payment's features, and it impacted thelegislation and judicial practice of fraud crime.ChapterⅢ describes the evolution of payment methods and the legislation of fraudcrimes in the United Kingdom, Japan and Taiwan District. The statute is the onlystatutory basis for punishing the Crime of fraud in British who developed the law ofthe crime of fraud until1757. In the early time, they didn't believe such non-violentactions belong to crime. Later the British government provides the crime of fraud inTheft Act1968and crime of fraudulent claims for services and other crimes interestfraud in Theft Act1978. In2006, the UK separated fraud crime provision from theabove two bills and formed Fraud Act2006to specifically punish the crime of fraud.Besides, the British legislature had enacted Forgery Act1913and CounterfeitingCurrency Act1936to punish the related actions about fraud crime like currencyforgery, financial bill forgery. Later, the two laws replaced by Forgery andCounterfeiting Act1981. For the behavior related the crime of fraud about electronicpayment, the UK combated it applying Computer Misuse Act1990.The early legislation in Japan----Law of Endowment was referred to The Tang LawDredges Opinion, simultaneously legislated the crime of paper currency forgery anddocument forgery which did harm to public credit. Japan's current criminal law was enacted in1907. Later, the laws were modified according to the change of thepayment methods and fraud situation. The criminal law in Japan only provided thefraud crime like fraud criminal for property, the fraud criminal for the interests andthe quasi-fraud crime initially and definitely formulates to combat the related fraudcrime of forging, using, providing false coin and securities. To combat the fraudcriminal of credit card, the Japanese criminal law added the charge of improperproduction and illegal to provide the magnetic recording, computer fraud and othercharges in1987. In2001, to point against the severe situation of fraud crime, Japanesegovernment modified the criminal law again and added a special chapter to combatfraud crimes related the behavior of payment with magnetic cards. In2011, Japanamended the law again to combat the virus crime.The existing criminal law in Taiwan was enacted in1935which provided threefraud charges: the crime fraud for property, the crime fraud for interest, the crimefraud for regular profession and quasi-Fraud initially. In1997, to combat the fraudcrime of credit card, the Criminal Code added the crime of improperly usingautomatic payment device, improperly using computer or related equipment to takefinancial crime. In2001, Taiwan government amended the law and added charges topunish the behavior of forging or altering debit card, stored-value card and themagnetic recording of payment card to prevent the fraud crime in advance. In2003,Taiwan criminal law also set up special chapter--the cyber crime to provide the legalground to combat the fraud crime related to electronic payment.Chapter IV focuses on the impact of payment on fraud law benefits. The impactscan be divided into two levels: firstly, direct influence--produce new legal interests,namely with the appearance of payments like financial bills, to protect the benefit andvalue of production; secondly, indirect effects-Extended the combating range ofcriminal law, namely to propose the criminal law to protect the important legalinterest and formulate the related action to threaten the legal interest as crime. Injudicial practice, if the fraud crime infringed several legal interests, we should noticethe balance of the legal interest's protection. In other words, we need to protect themost important legal interests, rather than just protect property rights. The behaviorsgetting no property but seriously infringing financial order should be defined asconviction and to be sentenced. For this reason, the legislation mode of financial fraudcrime should be transferred from amount to behavior to reflect the value to protect thelaw interest for financial order. To effectively prevent the fraud crime and complete the legislative protection to important law interest, we should learn from thelegislative practice of Britain, Japan and Taiwan when modify the relevant provisionsof criminal law, defining some means of behavior of fraud as criminal which exist incommon and play an important role to contribute to commit crimes. Those meansinclude setting up and spearing the phishing website and viruses to commitproperty-related crimes. Finally, the chapter analyses the contradictions between1996fraud judicial interpretation and some widely recognized theory says, and discussesthe necessity to amend the relevant criminal law provisions and judicialinterpretations.Chapter V studies the subjective and subject impact of payment on fraud crime.Currently several main ideas about the mens rea of financial fraud criminals are basedon the attitude of the perpetrator against property legal interests but not financial order.But under the influence of payment method, the main law interest of infringingfinancial order has changed from essential means to possess property illegally. Soaccordingly, the perpetrator's attitude to the infringement by property law interestshould be regard as the evaluation criterion. The infringement of financial order is theinevitable method to illegally occupation property and laws and regulations providestrict procedural and substantive conditions for various financial activities. Itdetermines the perpetrator's mind-set to infringement of financial order which meansthat the mens rea of financial fraud criminal can only be directly deliberately. But tosecondary law interest of financial fraud crime-----property law interest, negligencecan exist for property law benefits, but it doesn't effect the conclusion that the mensrea of financial fraud crime only can be directly intended. To the fraud crimeregarding public and private property rights as main law interest should assess themens rea according to the perpetrator's attitude to infringement of property rights.Through the analysis about the fraud crime by using the published recharge cardprove that indirect intention can exist in the fraud of usurpation. Simultaneously, dueto the criminal law does not provide the negligent fraud crime; Mens rea of theusurpation fraud crime can not be negligent according to the principle of legality. Theunit is not the subject of the fraud crime according the criminal law. However, underthe influence of electronic payments and e-commerce, the unit's personalized trend isincreasingly evident; moreover, the low cost of crime leads to the increase commonfraud crime committed by companies. So we should allow the unit to become thesubject of the crime of fraud to protect the public and private property rights and interests and market order.Chapter VI discusses the impact of electronic payment on the objective aspects ofthe fraud crime. The impact mainly reflected in three aspects: firstly, electronicpayment methods promote the crime of fraud to transfer from the pure amount to thenon-pure amount. The latest judicial interpretation has broken through the rule oflegislation to define the fraud crime as non-pure amount. To eliminate the conflictamong the normative documents and punish the fraud crime about small amountinvolving the mass, the legislature should modify the previsions so that we canidentify crime according to the non-amount seriousness. Secondly, we shouldcorrectly understand the victims' transferring behaviors of property. There are subtledifferences in delivery and disposition without random mix although both can be usedto describe transferring behavior. The former stressed the objective aspect oftransferring behavior, and the latter emphasizes the consistent of the subjective andobjective. The delivery and disposition are both practicable in traditional fraud means.In the fraud implementing by means of the third-party payment, the victim onlyimplements the behavior of transferring property but no intention. Now we can onlysay that the victim delivery the property but not deposit the property. In this case,victims' behavior should be regarded as the disposition without threat rather thanvoluntary. Finally, the chapter denies the rationality of the saying of necessity. Intraditional case of fraud, victims has a clear understanding for the transfer of property,but in the fraud implementing by means of the credit card, victims have no sense ofdisposition of property although they transfer the possession of property objectively.This phenomenon negated the former viewpoint directly. Except for that, the mainreasons for the saying of necessity are not complete, so the misgivings are notnecessary.Chapter VII analyzes the main effects of several new methods of payment on theidentifying of fraud crimes. Firstly, the accumulated points of consumption affect theidentification of the nature of the crime. Under given conditions, the accumulatedpoints of consumption can be regarded as a method of payment. Differing from themoney and ideal money, it is a necessary condition of obtaining property but notproperty itself. Falsely increasing points is equal to fabricating fact but not increasingproperty. For the behaviors of exchange of property with the accumulated points ofconsumption, the nature of the act should be based on the means of obtaining propertydirectly: If the perpetrator obtains the property thought the computer, the nature of the act should be characterized as theft; the perpetrator obtains the property from thevictim crime should be identified as fraud. Secondly, the impact of the virtualcurrency on the identifying of the crime of raising fraud. The methods of fraud andillegal raising fund are the necessary conditions to identify the crime of raising fraud.Issueing virtual currency can be classified as a mean of raising fraud.But studying thecases we find that this mean does not conform to the provided limit of judicialinterpretation and the behavior of raising fund is not illegal. There are some problemsin the judicial interpretation of the crime of raising fraud, so we need to improve thelegislative and judicial interpretation in order to adapt to the need to combat somenew types of raising fraud. Finally, the impact of the prepaid cards on the nature of thecrime and crime patterns. Presented as the pattern of number, the prepaid cards can behandled by more than one person at the same time. Although both belonging to thebehavior of illegally obtained property through the transfer of prepaid value, thenature of behavior will be different according to the modus operandi: secretlyremembering the prepaid account or passwords and transfer the prepaid value—theft;if the criminal mastered the account or password of the prepaid card before selling it,and transferring the prepaid value immediately after selling—fraud. When identifyingthe pattern of crime, we should notice that only the prepaid value controlling by thevictims can be identified as the accomplished pattern and accordingly, the prepaidvalue both controlling by the actors and victims is identified to be criminal attempt.Chapter VIII discusses the perfect of legislative and judicial. The author draws hisviews in the following aspects: Firstly, the legislative, judicial improvement on fraudcrime. Other serious case that is equal to the crime of large amount is assumed toreach the actual needs of combating the fraud about telecommunications and smallamount involving the mass. Simultaneously the applicable condition of non-amountcrime is strictly limited through judicial interpretation. Secondly, the legislative,judicial improvement on financial fraud crimes. To protect the law interest of financialorder, the mode of financial fraud crime is modified from amount to behavior.According to the redefinition in external legislation to the purpose of possession infinancial fraud crime, here we define the behavior possessing and using the fundsthrough means of fraud as the purpose of possession. At the same time, the level ofcriminal punishment is convicted referring to the degree of subjective evil andobjective harm to avoid the unbalance of the punishment. Thirdly, the legislative,judicial improvement on financial fraud. This point modifies the accusation as collecting funds by means of fraud and accordingly completes the judicialinterpretation for the condition of conviction with the change of crime situation.Fourthly, legislation to combat the behavior related to fraud crime. This view can bediscussed in two directions: one is to bring some serious behaviors into criminal law,such as setting up and spearing the phishing website and special viruses according tothe experience and skill of external legislation and formulate the judicialinterpretation to stress the operability of legal regulation and avoid the abuse of meansof criminal law; the other to combat the serious behavior of business dealings for realcredit cards. That is to say, namely to purposely provide the credit cards to the personusing them on fraud and money laundering and purchase a large amount of creditcards to hinder the management.
|
PDF Full Text Request