Research On Criminal Regulation Concerning Fraudulent Transactions

As the high incidence of fraud cases, we are facing all sorts of obstacles in factual judgment and application of law in judicatory practice. First, we haven't set the definite criterion for judgment of purpose of illegal possession, leading the result that different people have different kind of view on same case. Secondly, the connotation of the purpose of illegal possession in economic crime is not defined clearly, the extension is not clear, either. Lastly, it is also difficult to prove the intention of illegal possession in judicial way. In addition, there existing two imperfections in the current Criminal Law of the People's Republic of China, some deception behaviors that have great harmfulness to public society cannot be defined as crime, which result in not guilty or capital felonies, or those that are defined as crime, but most likely obey the prohibitive provisions of Administrative Law while convicting.In this thesis, based on theory of criminal law, I attempted to survey the regulation on fraudulent transactions in reflection way, in order to form the penal typological thinking to legislate fraudulent transaction conduct criminally, as well to make a further discussion on subjective and objective conditions of these crimes and the relationship between criminal law and civil law. Normative analysis, historical analysis, comparative analysis, positive analysis and other analytic methods are applied in this thesis. The fundamental idea of the text is categorization, criminalization and mitigation of punishment.This dissertation is divided into introduction and five chapters.In the introductory section, I analyzed five classical casesrefer to illegal fund-raising fraud, unlawful business operation fraud, and league fraud, which are all hot points also difficult points at present in economic life. After comparative analysis of these cases, I found several mutual problems.Firstly, we haven't set the definite criterion for judgment of purpose of illegal possession, leading the result that different people have different kind of view on same case. Secondly, the connotation of the purpose of illegal possession in economic crime is not clearly defined, the extension is not clear, either. There is no further research about differences between the connotation of the purpose of illegal possession in economic crimes and traditional crimes against property, as well as their criterions for judgment and judgment methods. Thirdly, we cannot give an all-sided penal appraisal about acts referred to as willful or knowing violations but without purpose of illegal possession. Under the circumstances that we cannot prove the illegal possession purpose,sometimes we have to judge those acts as illegal business operations or other referring crimes, but neglecting the definition of fraudulent conduct itself. Meanwhile, it is hard to avoid lighter sentences, which result in week maintenance of the economic order.In my submission, solution to these problems is to analyze economic cheat transaction in penal typological thinking method, discuss the necessity of criminalizing diverse classifications of actus reus, as well to appeal mitigation of punishment while setting criterion for imposing penalty.Chapter 1, Introduction to Fraudulent Transactions.In this chapter, I mainly expounded significance of categorical thinking and methodology of criminal law, clear that fraudulent transactions mentioned in this dissertation refers to the action that intentionally fabricates the fact or suppress the truth, to make the other party fall into the wrong understanding and make transaction, thus causes great damage or occur other serious circumstances. In view of these crime types are of open, mobility and great elasticity, the definition of fraudulent transactions mentioned above merely refer to the description of its characteristic, referring to a speciesof deceptive, fraudulent phenomena or events at present in economic life, but not an exact concept.Differ from crime against property, fraudulent transaction is a category belongs to economic crime, therefore it has the following typical characteristics. Frist, fraudulent transactions occur in economic activities, seemingly, it is a legal relationship and business activity. Fraudulent transactions usually aim at interest of property of non-specified person. Second point, fraudulent transactions violate laws and regulations to economic activities directly or indirectly. Thirdly, cheat transactions go against economic rules, endanger or enough to endanger the normal economic activities. Fourth point, interest flow of fraudulent transactions is more intricate in comparison.Meanwhile, harm of fraudulent transactions embodied in four respects. In the first place, fair competition in market economy is badly affected by fraudulent transactions. Secondary, fraudulent transactions make serious influence on operational efficiency of the market. Thirdly, they have become unstable factors in society. Last, they brought devastation to the market integrity. Government has legislated fraudulent transactions conduct criminallyin succession at the moment, however, the legal system has not been set rigorously, the primary cause of which is the overlook about regulating cheat transactions.Chapter 2, Extraterritorial Regulations against Fraudulent Transaction.In this part, I search the law and regulations in America, Germany and Japan, which representative for the free market economy, social market economy, and command Economy(a combined economic system of free market economy and social market economy) respectively.Chapter 3, the Necessity and Limitation of Fraudulent Transaction Crime Legislation.In my submission, the inevitable outcome of improving the further search of fraudulent transaction is crime legislation, especially to which of great harmfulness to public society. Fraudulent transactions do harm to society rather noticeably, not only affect fair competition in market economy but make serious influence on efficiency of the market operation. Moreover, they have become unstable factors in society and brought devastation to the market integrity.Evidenced from the economic theory, market needs modest state intervention. The regulation of Criminal Law is an ex post facto, moderate, normative supervision and is an essential factor of the development of the market economy. Nevertheless, the regulation of Criminal Law has to abide by two boundary principles, which both means setting the moderate scope and extent while supervising the market.In addition, under the current legal system, criminal law shows the unique value while supervising fraudulent transaction. Firstly, criminal law differs from civil and commercial law in its deterrent force caused by its nature of punishment. Meanwhile, procedural capacity of the prosecuting party in criminal procedure always stronger than that of aggrieved party in civil procedure, lawful right and interests of aggrieved party are more likely be well-protected in criminal procedure. In second place, criminal law is different from economic law. In comparison, criminal law is more likely to accepted by the public. Fraudulent transactions should be judged as crime because they do harm to society rather noticeably, first, judging fraudulent transactions as crime is conform to the prevailing view. Secondly, fraudulent transactions are happening beyond public endurance capacity. Thirdly, judging fraudulent transactions as crime is necessity and trend in development under current legislation. Moreover, in view character for modest of criminal law, relevant departments need take fairness into consideration while setting criterion for imposing penalty, avoiding prevent the development of society and economy.Chapter 4, Construction and Improvement of Criminal Law against Fraudulent Transaction in China.After categorization and crime legislation, I attempted to gave some envisages to the construction and improvement of Criminal Law against fraudulent transactions in China. On the first place, criminal policy should set comprehensive supervision to market. Next, regulations and law should lay emphasis on the following two respects, 5differentiating between moral risk and business risk, and protecting the vulnerable group and the mass. Then, I put forward some key points related to the construction of regulations and law. Firstly, legal terms need to be unified in order to display typical characteristics of fraudulent transactions. Secondly, it is more sensible to put provisions of fraudulent transactions into different sections, demonstrating the protection to specific lawful rights. At last, I gave my envisages to the subjective and objective legal requirement and reconstitution of criminal penalty.In my dissertation, I brought forward my view that, objectively, we should regard consequential offense as criminal, offense of act as exception. However, the definition of offense of act should be given close confinement. In the next place, affirm the virtual false. Thirdly, we should set regulations that only when aggrieved party has culpable negligence will affect the conviction.Subjectively, first of all, re-understanding the definition of purpose of illegal possession. As we know, purpose of illegal possession origins from crime against property, while there exist essential differences between economic crime and crime against property, so we should deal with each case on its merits and make elaborate study of subjective intention and objective behavior. Secondary, the feason get an aim of subjective intention in fraudulent transaction, including indirect intent. Under specific circumstances, if a series of legal behavior result in an inevitable damage to aggrieved party, the feason will be adjudged having purpose of illegal possession as well, even though there is no demonstrable false fact. Meanwhile, injunction and qualification should be included in relevant provisions when the government setting criterion for imposing penalty while death penalty should be averted.Chapter 5, Boundary between Criminal Law and Civil Law.As fraudulent transactions are typical acts of law, which combined criminal law and civil law, I discussed hypostatic and procedural part of fraudulent transactions respectively. In hypostatic part of fraudulent transactions, I support the theory of independence of criminal law. I firmly believe the unique value of enactment of criminal law, criminal process can be initiated independently, accordingly, in this chapter, I brought out distinguishing criteria of subjective factors, objective damage, causal relationship and legal liability while judging the boundary between Criminal Law and Civil Law. For procedural part, I rethink the original intention and paradox profoundly, and proposed a conception that the government should unifiedmarket order and legal order while setting the criminal process, as well grant limited rights to aggrieved party to choose criminal process.