Study On The Constitution Of The Crime Of Contractual Fraud

Crime of contractual fraud is a kind of crime of swindling which is covered by contract and is difficult to be identified, whose means is concealed, whose situation is complicated, whose coverage is wide, whose effect is seriously dangerous. In all crime of swindling cases, contractual fraud case has high proportion. It has been focus and difficult point of criminal justice practice.1997 Year Penal Code after revising, separated crime of contractual fraud from general crime of swindling first time, let crime of contractual fraud become new independent charge. Crime of contractual fraud reserves the common characteristics of general crime of swindling, and shows special characteristics. The special characteristics mainly express in its special constitution of the crime. The text wants to make superficial study on the constitution. And wishes have some benefits to the justice practice.Chapter 1 Object of Crime of Contractual FraudCrime of contractual fraud infringes upon the complicated object. It infringes upon the contractual management system, socialism market economic order and the ownership of public and private property.As for determination of the contract, the writer think the scope of the crime of contractual fraud should include the civil contract which can be seen the market trading characteristics regulated by the law of contract, security agreement regulated by security law, assignment contract of right to exclusive use, contract of joint management and also the contract of labor.As for the form of the crime of contractual fraud, the writer think combinative legislative spirit, other related law and the society life practice, it should include the written form and the oral form.As for determination of the target of crime of contractual fraud, the writer suggests adding property benefits to the target which is learned from other countries.Chapter 2 Objectivity of Crime of Contractual fraudThis offence express making up facts, hinting the truth, cheating to takeother party's properties and the sum is larger.As for determination of the characterizing portion of the crime, first, actor doesn't at all have the ability to fulfill the contract; second, actor takes the cheating means, feigns the fact or conceals the truth; third, actor makes the counterpart have error in understanding; fourth, counterpart voluntarily signs and implements the contract and delivers the article of property.As for whether the establishment and coming into force of the contract are the conditions of the crime of contractual fraud, the writer think, one object of the crime is the contractual management system. The crime is the criminal liability the actor who breaches of contractual obligation should take. So the establishment of the contract is the condition. The contract taking affect is the contract has the executed conditions regulated by law, and it makes certain binding force between the parties concerned. Because the basic characteristic of the crime is fabricating fact and concealing truth, and it has not the effective conditions by law, the contract into force is not the necessary condition.As for determination of false security of guaranty of other contracts, the writer think the means and result of false mortgage and false security of pledge enumerated by penal code is the same to the result of other false guarantee by the other means. Hence, signing and implementing with others by false security of guaranty, cheating other's substance covered by consigning the down payment, and occupying the opposite part's belongings by taking lien, all can be determined as the means of the crime.As for maintaining the amount of the crime, first, the convictive amount of the doers in the crime of common contractual fraud, the writer think, in the crime of common contractual fraud, each doer has the common intent in illegal possession of counterpart's belongings, and commits the joint offense. Each should take the criminal liability. At the same time, each doer doesn't necessarily attend to every offense in continuous fraud acts, therefore should adopt the saying of "the amount of participating". Second, as for the convictive amount of counter purchase contractual fraud, the writer think, although it takes several swindling acts, acts have been made a body, every act of cheating and returning is laid for the later, counterpart is cheated tolose a part of his property. Hence, it should be accounted by the amount last cheated and the one had not been returned.As for determination of cheating counterpart's property by other ways, the writer think, should consider, every means of the crime must be thought the natural characteristic of cheating by contract. For example, some actor cheats others to sign advertisements by feigned advertisement and information, to cheat intermediary fee, placing fee, etc. Some actor forges joint management, joint venture, cooperation, signs and implements to cheat counterpart's property. These all can be seen as other methods by contractual fault.Chapter 3 Subject of the Crime of Contractual FraudThe subject is general subject, any natural person who reaches the age for criminal responsibility and has the criminal liability can be the subject, and the unit also can be this offense subject.As for determination of the unit becoming the subject, the unit commits the crime must have two conditions: first, the supervisor or person directly liable knows perfectly well or acquiesces in or instructs of the swindling act; second, illegal incomes return the unit all or basely.As for determination of the special subject of the crime, one is the guarantor. He can only commit the common crime with the main contractual actor .Two is the contractual agent. The writer talks about the situations that agent and actor together commit the crime. And the writer states that apparent representation and the crime of contractual fraud can't exist at the same time. Three is broker of the contract. These situations belong to the crime of contractual fraud: broker and client conspire to cheat; broker is fully aware of the client's cheating act, and also acts intermediary to establish the contract, broker help client to act of contractual fraud for the recompense.Chapter 4 Objectivity of the Crime of the Contractual FraudThe objectivity of the crime shows direct intention, and have the purpose of the illegal owning of other's belongings.As for determination of the illegal owning, the writer think, should investigate below factors: first, actor whether has the actual ability to implement the contract while signing it; second, actor whether cheats while...