The Dispute Of Criminal Punishment For Breach Of Contract

According to the theory of twice breaking law,the act constitutes a crime and violates the law.In the criminal law of our country,the tort law is the most advanced law of the criminal law,and the serious infringement should be punished by the criminal law.However,as the other act of the civil field,should breach of contract be punished by the criminal law? In recent years,with the continuous expansion of criminal legislation and criminal justice,criminal omnipotent and the criminal view of people's livelihood is emerging.The theoretical circle criticize the trend of criticism more and more.a number of charges in the criminal law,which nature is breach of contract,gradually enter the field of theoretical research,and caused the debate whether criminal law should punish breach of criminal.This article discusses three charges,which involving breach of contract: the crime of illegally absorbing public deposits,malicious overdraft credit card fraud,and crime of refusing to pay labor remuneration.This article argues that the criminal law punishes breach of contract is improper,by the value of criminal law and the nature of crime.I hope to realize the decriminalization of three charges from legislation,and provide path of decriminalization from the judicial.In addition to the introduction,the thesis consists of five chapters.The first chapter defines the scope of breach of contract in the criminal law.Firstly,the paper summarizes the behavior of breach of contract and analyzes the breach of contract and its characteristics.Because the criminal law does not include all the acts of breach of contract into the scope of punishment,the breach of contract in criminal law is narrower than that of general civil law.According to different standards,there are many classifications of civil contract type,contract obligation,breach of contract type.The contract type contains a valid contract,invalid contract and contract with pending validity,revocable contract etc.The contractual obligation includes pre contract obligation,contract obligation,and collateral obligation.Breach of contract types include not to perform,not appropriate performance and defective performance.But when the criminal law punishes the breach of contract,only punishes the most important.First of all,the premise of the criminal punishing breach of contract is the validity of the contract.If there are pending validity or revocable or invalid dispute the validity of the contract itself,the parties to the main obligations stipulated in the contract breach is also controversial,it will not be involved in the crime because of default.The most typical is the crime of contract fraud.Because the contract is concluded by means of fraud,so it is an invalid contract,which will be excluded from the scope of this article.Secondly,the criminal punishment of breach of contract violates the obligations stipulated in the contract rather than the statutory obligations.The relation of the contract is the contract between the parties in the legal framework of the autonomy of the parties to the contract.The parties were no relevant obligations,just because of the establishment of the contract and shall fulfill corresponding obligations.If one of them does not fulfilled,it is breach of contract.This is different from the statutory obligation.The statutory obligation is based on the provisions of the law,not based on the agreement,so the violation of legal obligations is illegal.In addition,the breach of contract is the main obligation of the contract.The obligations of the contract including the main obligation,collateral obligation and pre contract obligation etc.Contract obligation in the contract period mainly refers to the payment obligations.In violation of the criminal law to punish the breach of contract is the main obligation.Because of the damage to the observant party,in violation of other obligations damage is small than the violation the main obligations.So criminal punishment is only for violating the main obligations of breach of contract.Finally,the criminal law punishes the act of nonfeasance.The core of contract is the performance of contractual obligations.The most typical and serious of breach of contract is the failure to fulfill the contractual obligations.This kind of behavior is not reflected in the criminal law,is a crime of nonfeasance.Based on these three characteristics,the paper defines the scope of the crime,that is,the crime of illegally absorbing public deposits,malicious overdraft credit card fraud,and crime of refusing to pay labor remuneration.On the basis of the brief description of the legislative evolution of the three charges,this paper summarizes the influence factors of the criminal law to bring the breach of contract into the category of punishment.It paves the way for other chapters.The second chapter analyzes the misconduct of criminal punishment of breach of contract from the perspective of the value of criminal law.The basic value of criminal law includes two aspects: the protection of freedom and the maintenance of order.And the relationship between them is the unity of opposites.On the one hand,there is an antagonistic relationship between freedom and order.Too much emphasis on individual freedom will be difficult to ensure the stability of social order.And excessive emphasis on social order will limit the scope of individual freedom.On the other hand,freedom depends on the establishment and maintenance of order.And order depends on the extent to which freedom is protected and restricted.Freedom is the value of the ultimate,the order is the value of the tool.The order is the premise of the existence of freedom,freedom is the purpose of order.In fact,the process of criminal legislation is the process of balancing these two values.How to combine the different stages of social development,emphasizing the different value orientation is very important.The author thinks that,when the social is unrest and not mature,the criminal law should emphasize the value of order.But in the development of the society,and the individual consciousness awakening of mature market economy continues to improve,the criminal law should emphasize the value of freedom.Therefore,the point of view of this paper is to give priority to freedom and to take care of order.As the ultimate and fundamental value of criminal law,freedom should be given priority.When people are protected by individual freedom,they will be able to maintain,rebuild,maintain and rebuild the social order,so as to pursue a more stable and higher freedom.As a result,personal freedom has been sublimated,while social order has been well maintained.If the criminal law is too much emphasis on the maintenance of order,to a certain extent,can only maintain a minimum order.It is not conducive to people's freedom to play,and could not create a more advanced new order.Therefore,in the context of building a harmonious society,China's criminal law should focus on the value of freedom,rather than the pursuit of the balance of the two in the traditional sense,thus establishing a free order society.In the aspect of the free value,the freedom of contract fits the value orientation of criminal law to protect freedom.While in the maintenance of order,the criminal law weakens the freedom of contract.The criminal law should be more protection to the freedom of contract.This protection is reflected in the good social order to provide a relaxed environment for the freedom of contract,which is contrary to the freedom of contract punishments,such as violation of the will of others,violent means to force others to sign the contract,rather than the performance in the contract parties when impose penalties on the breach of contract.Therefore,the practice of criminal punishment for breach of contract is too much emphasis on the maintenance of order.It deviated from the "freedom first,taking into account the order" of the value orientation and value level.In the third chapter,the author analyzes the misconduct of criminal punishment for breach of contract from the perspective of the nature of crime.Breach of contract does not have the social harmfulness,and it is not illegal.The nature of the crime is related to whether the breach of contract is a general offense or a serious crime.If there is uncertainty about the nature of the crime,the relationship between the breach of contract and the criminal law cannot be discussed.Although there is a dispute about the nature of crime in the theoretical circle,the author insists that the serious social harmfulness is the essence of the crime.According to the different levels of the concept,the social harmfulness can be roughly divided into two categories: the general social harmfulness and the criminal social harmfulness.The criminal social harmfulness in the sense of criminal law is mainly based on the "harm principle" put forward by British scholar John Stuart Mill.From the point of view of the social relations,the contract belongs to the contractual relationship,and the breach of contract is the right of the parties to the contract.This is essentially different from the infringement of personal rights,property rights,and so on.From the perspective of social harmfulness,the social harm of the absolute right is much greater than the violation of the relative right.In terms of behavior,the act of breach of contract is a kind of pure nonperformance,and does not contain any fraud,violence or coercion.Although there are some charges in the criminal law is nonfeasance,but the crime of nonfeasance has its specific as a source of obligations.Such obligations generally contains legal obligations,previous behavior and so on,but not the contract obligation as a source of obligations of criminal responsibility.However,whether the breach of contract is illegal or not is controversial.I do not think the breach of contract is illegal.The usual sense of illegal is the act of violating the mandatory provisions of the law,but the breach is the breach of contract,not the true sense of the law.The "duty of care" is consistent if the two parties agreed obligations based on non-mandatory.Statutory obligations and legal contracts are essentially different.The consequences of breach of contract is compensation.In this case,the breach is not a violation of the law.The legal consequences of breach of the promise of the defaulting party or the other party is the presumption of promise,both previous form transformation of debt contract,not legal sanctions.The fourth chapter analyses the basis that the criminal law shall not intervene in the breach of contract.It mainly concludes three parts: the malpractice of the criminal punishment for breach of contract,the realistic reasons that the criminal law should not punish the breach of contract,the justification basis of the criminal law shall not punish the breach of contract.First of all,the criminal punishment for breach of contract has its drawbacks.The penalty is a bad way of punishment.When the criminal law is not properly involved in the breach of contract,it will inevitably have a negative effect.The criminal punishment for breach of contract is not conducive to social management.Although the criminal law undertakes the function of social management,but the criminal law is only a kind of social management means.The criminal law undertakes the social management function and significance in the only final protection law.It should not replace the government management function.Although the penalty is fierce,but is a temporary solution.In the long run,it will not reduce the crime,but increase more crime.Because it does not touch the real root causes of crime.The criminal punishment for breach of contract will hinder the economic and social development.On the one hand it is not conducive to the formation of citizens' risk awareness and spirit of the contract.The criminal punishment for breach of contract will make the lack of social credit behavior of trial.The integrity of the economy will not take root in soil.On the other hand,it is not conducive to the cultivation of innovative spirit of the society.The essence of market economy is to encourage reform and innovation of economic freedom and economic law.If criminal law emphasizes on the protection of existing economic order,economic innovation behavior blamed for every action will inevitably lead to frustration on the main market,the power of innovation,the formation of stifling the development of economic and social power source.The criminal punishment for breach of contract will damage the authority of criminal law.The act of breach of contract is brought into the criminal law category,which will make the criminal law appears powerless,when the criminal law is incapable of action in a state of arduous tasks.People will question the authority of the criminal law.Secondly,the criminal law should not be involved in the breach of contract has a realistic reason.A penalty is unable to achieve the purpose of legislation.The breach of contract is the integrity of the relationship between the two sides.The other party need to fulfill the agreement,or need compensation for losses to repair the social relationship.The criminal law gives the breaching party a penalty of deprivation of personal liberty,not only cannot fulfill the original contract,to protect the interests of victims,but also damaged again a breach of contract between the people and the victims of social relations.And the application of criminal law is too expensive.The economic theory of criminal law starts from the cost and benefit of penalty proportion,to obtain the maximum benefit in criminal law resources minimum input.However,from the judicial practice of the crime of illegally absorbing public deposits and malicious overdraft credit card fraud,the criminal law is too expensive to pay the price.In addition to the deprivation of the rights of behavior,judicial organs put a lot of judicial resources on these charges.But it is not only gets little success and a lot of controversy,but also lead to other applicable laws lost opportunity cost.Liability for breach of contract is often involved in the contract,the parties just assumed the liabilities when they are breach.Finally,I proposed the justification basis of the criminal law shall not punish the breach of contract,namely,the decriminalization basis of the crime of illegally absorbing public deposits,malicious overdraft credit card fraud,and crime of refusing to pay labor remuneration.It discusses mainly from three aspects: the necessity of criminal law,the economy of criminal law and the trend of light punishment of criminal law.The fifth chapter proposes the path of decriminalization.Before putting forward the feasible path of decriminalization,we should rethink profoundly about criminal omnipotent and the criminal view of people's livelihood.And I advocates "restraining the criminal law" concept.This is a premise of decriminalization.Then this part analyses three charges from the legislative and judicial aspects.It should eventually be decriminalization of the three charges in the legislation.But it is temporarily unable to decriminalization in the legislation for the three charges.Now we should realize the decriminalization from the judicial level,through the interpretation and application of the provisions of the criminal law.And we should make full use of the procedure of criminal action,realizing the decriminalization from judicial practice as much as possible.