Study On The Victim Factors’ Influence On The Fraud Crime

For a long time, the research on the victim is limited on factual elements in Criminology with the view of analyzing the caution of becoming victim and putting forward of strategies, or in the procedural law emphasizes on the principal position of the victim, to ensure the victim’s claim. However, there is few scholars pay attention on the location and effect of victim in criminal law. In fact, we cannot find the position of victim in constitutional system of crime in our country, only if act as the legitimate ground like justifiable defense and necessity. The concept of victim is different between criminology and criminal law, in this paper, we research on victim in criminal law. There is a big difference between victim and victim element, the former means the holder of legal interest, and the later means the conduct the victim act which can effect the judgment of the crime, like the victim consent. The victim make a great effect in interactive crime especially in fraud crime. In the traditional constitutional system of crime in our country, we can hardly find the victim position and function. With the appearance and development of the victim doctrine theory in Germany, this theory provides the fraud interpretation with methodological foundation, meanwhile, it it makes the connotation of judgment for the crime elements possible. In this paper, we will take the victim dogmatics as a research approach and make the breakthrough in victim factor, and then discuss the influence on fraud crime. Nevertheless, due to the congenital lack of dogmatics(on the basis of self-defense duty) and the rule of whether the victim deserve protection and should be productive is fuzzy, we should identify the theory in distinguishing and avoid copinism. At the same time, the modification by detailing victim reasons for elements of crime is also needed.What the foundation in elements of fraud crime in academic and judicial practice is “ actor implementation of deception, the victim into misunderstanding, the victim disposes property based on faults, the offender or third party obtain the property, the consequence of property damage”. We will focus on misunderstanding, which is an independent element in constitution of fraud crime, and it is an important joint links fraud and the victim disposes property based on faults. The traditional theory which depended only on faults is inaccurate, it also needs division by victim reason in order to solve the problem. Therefore, the establishment of misunderstanding which is the key point of fraud crime. The victim division make great contribution to the faults element and consciousness factor is the precondition of the conductor factor. The victim factor including the victim suspect, the victim consent and the victim fault.There is defective victim’s consent in fraud, which could only get the conclusion that without misunderstanding, the offender is merely realize attempted crime, which seems undisputed but actually vague. In this paper, it is necessary to introduce the victim’s consent theory to identify misunderstanding. Therefore, the victim who accepts damage throughout the duration is not accord with the inner detective victim’s consent. Moreover, it corresponds with the key point of theory of victim doctrine, when the victim give up self protection if he has the ability, the criminal law will not protect him as well. For the detail in distinguishing attempted crime with victim’s consent, it refers to the theory of risk interest. It is victim’s freewill for abandon, which is impossible to make damage to legal interest. That is to say, it shall not be assessed in criminal for it is none risk to legal interest. On the other hand, there is a high risk in attempted crime, which threaten the legal interest. Therefore, when the victim hand over property without misunderstanding, there is no harm to the legal interest and it is none business to the criminal law. Throughout this paper’s demonstration, the conclusion is not fraud instead of attempted crime.We do not pay much attention on the element of victim’s suspect and it is not an important element in judge the crime of fraud. However, with the development of economy, the risk is also improved in business trading compared with field of life. Besides, the custom and regulation is different in different field. The purpose of German dogmatics is to limit the criminal punishment. As for the victim’s suspect theory, there are “the theory with probabiity”, “the theory with high-probability” and “the theory with indirect crime”. Combined with the practice in our country, the victim’s suspectto constitute fraud crimeshould betalked into division which is amendatory accept victim dogmatics theory. Among this, the fraud crime will be limited in life field, As for victim’s suspect outside life field, the victim’s doubt can deter the factor of misunderstanding, the remedy should be claimed through civil law instead of criminal law.This paper has formed a complete theoretical system of victim’s faults, making a details description on the faults in criminal law, the condition and types of victim’s faults, effectively choose the normative elements which can be analyzed in constitutional system of crime. Besides, distinguish between offence and common fault and discuss whether illegal reasons could constitute crime of fraud, and the key is whether the property can be the legal interest. The traditional point is based on the unity of the legal order that the property protected by criminal law should also protected by civil law and the essence of this problem is the judgment of dependence and independence between criminal law and civil law. On the one hand, it is necessary to make accurate qualitative of property attribute regulated by fraud crime; on the other hand, it is also important to make the right understanding of monism of illegal under the unity of legal order. When it is to the legal interest of crime of fraud,the theory of economic property is more beneficial to the protection of legal interest of property, for the conclusion agree with the ease of legal monism and the relative independent in each department law.