Several Issues About Identification Of Contractual Fraud

With the development of market economy and the application of contract, contractual fraud become the common crime in judicial practice. However, there are a lot of issues when identifying this crime, which make it difficult to form a unified understanding in practice. The same behavior in different regions will be differently identified, so that it will cause some confusion to our judicial system. Because of this, this article will choose and discuss some important problems in identifying the crime of contractual fraud, in order to create a more clear conclusion that contributing the judicial practice. This article is divided into three parts:Part one: How to identify the"contract"in the crime. Contract is a broad concept, not only in the civil law, such as the contract in contract law, security contract, identity contract, but also the administrative contract in adminis‐trative law, labor contract in labor law .The connotation and the extension between"contract"in this crime and the above contract can not be completely coincided. There are two problems which should be solved when identifying the contract: one is the scope of contract; the other is the form of contract. About the demarcation of the scope of the contract, different Scholars have different views, such as economy contract, civil contract, contract in contract law and the idea of specifically identified. this article will support the last one. We should start this from the legal interests which the crime of contractual fraud trespass and should conform the following conditions: first is the diversity of contractor. With the development of market economy, people who take part in economic activity are so diverse that should not make the main body of contract be limited to the specific objects, to the contrary, it is right to admit all the people and units who take part in economic activities be the body of contract in this crime. Second, the contract should reflect the normal market order, which excludes those not reflect the normal market order but only the agreement of contractors and those only reflect the illegal market order. Third, the parties should be able to reflect the profit‐driven, only one party wish the benefit or two parts not wish the benefit is not right contract. Finally, the contract should be able to directly reflect the properties of property, which exclude those not reflect the properties of property, such as service contracts. About the form of the contract in this crime, I believe that it should not be limited in written form. Either in written form or oral form and any others, because of the same essence, as long as they conform to the conditions above, all of them can be the form of this crime.Part two: How to identify the behavior in this crime. The crime of contractual fraud is still one of the fraud crime, so that there are no essential differences in behavior patterns. Generally speaking, the behavioral patterns of fraud are as follows: perpetrators do some fraud behaviors—victims have misconceptions—victim delivers the property because of the misconceptions—perpetrators or the third man obtain the property—victim have suffered property damage. Base on the behavioral patterns of fraud crime, combining with the specific provisions of contractual fraud in Penal Code, this article will show the five types of contractual fraud: one is main body fraud; second is security fraud; third is performance fraud; forth is escaping fraud, fifth is the others, the last is an intercept term. The behavioral patterns of contractual fraud is so universal that once the previous four have some omissions, the last term will fill the holes. As long as the identify of behavior patterns, along with the perpetrators'subject and object, it will be easily recognized.Part there: How to identify the"Illegal Possession"in this crime. The identify the"Illegal Possession"plays an important part when distinguishing the contractual fraud to the others. Illegal Possession may not only arise before signing the contract and the time contract signed, but also may arise after signing the contract and before the performance. It should take the way of judicial presumption. There are some factors should be considered: one is the ability of performance; second is whether there is fraud behavior; third is whether there is the actual actions for perform the contract; forth is the cause of no performance; fifth is how to deal with the property that have obtained; sixth is the attitude of the perpetrator after default. Above all, considering the above factors will help the judicial practice.