A Study On Some Problems For The Fraud Crime

The fraud Crime is one of the traditional property crimes, and is a brainpower crime which has an insatiable desire for the interest at the same time. With the continuous development of the modern scientific technology advancement and the social economy, the fraud crime phenomena became more complex and showed the extensive trends. Especially as the opening and the reforming become deepen gradually and the social economy became more perfected, the civil economical activities became active gradually, and the form and content of the fraud crime have the profound change. The crime means become more innovative. The crime number increases upwards. The crime body does not limit to the natural person, and the units become the new criminals. Although the Criminal Law has been revised, the Supreme Court also makes the relevant judicial explanation of hearing the fraud crime. But considering the lagging of the legislation, the legislation technique and the personal thoughts of the practitioners of the law have conflicts, and the types of the fraud crime means have been changing. These make confusing blowing the fraud crime exactly in the judicial practices. At the same time, the academic circle makes a furious discussion about the nature of the new-type fraud means. The scholars have different views on some problems related with them. This brings the fairish difficulties to the concrete manipulation in the judicial practice. With the development of the society, the means of fraud crime must have more innovative type, and it has more room for the study of the fraud crime. This paper has some useful discussion concerning the some problems in the judicial practices.This thesis is divided into three parts, including epigraph, text and conclusion.In epigraph, it is mainly explained about the actuality of the fraud crime. With scientific advancement and the social economical development, the fraud crime activities increase. For better answering the new change of the fraud crime, there are more stipulations in legislation for beating the fraud crime. But considering the lagging of the legislation, it is confusing to beat the fraud crime in the fresh position. For preventing and stopping the spreading of fraud crime, it brings forward the problems that this paper will discuss.The text is divided into four sections. Aiming at some problems and the confused problems in my judicial practices, combined with cases, it mainly expatiates on the author's opinions.Section-1, it is the understanding of the illegal possession purpose in the objective intent of the fraud crime. Through the different comprehension of the illegal possession purpose in the criminal theories of the continental law countries, it points out the general explanation in the criminal theoretical circle of our country which requires possessing the purpose of the illegal possession. Combined with the different meanings in the criminal law and the civil law, it expatiates on the connotation of the illegal possession purpose; through comparing and analyzing the ten types of fraud crime regulated by the Criminal Law of 1997, combined with the real cases in the judicial practices, it expatiates on the status of the illegal possession purpose in the objective intent of the fraud crime. It points out that the objective illegal possession purpose is the main necessary factor in all kinds of the fraud crime; for all the contests on the time at which the illegal possession purpose occurs in the judicial practice, through the real cases, it expatiates that the illegal possession purpose in the fraud crime generally occurs before or after the behavior, but also could be after implementing the real possession of the property; at the same time, from the traditional theory in our country, from two profiles of the contract fraud and the finance fraud, it expatiates separately on the determination criterion of the illegal possession purpose in the judicial practices. Combined with the present relevant judicial explanations, it expatriates on the author's opinions.Section-2, it mainly is argued on whether the indirect intent could constitute the fraud crime. Through the controversy of the two theories, the positive theory and the negative theory, on this problem in the theoretical circle, combined with the real cases and the experience in the judicial practice, it brings forward that the indirect intent could constitute the fraud crime, starting from the purpose of beating the new-type fraud crime. And it expatiates on the reason that the indirect intent could constitute the fraud crime, from four aspects followed: the purpose of the Criminal Law, the modest character requirements of the Criminal Law, the practical requirements and the contradiction of the negative purpose.Section-3, it is the determination of the nature of the litigation fraud behavior. As a new type of fraud means, the actor uses the civil litigation means to make the court do the civil judge in favor of himself for implement the fraud, through the fake facts or hiding the truth and providing the fake evidences. This often occurs in the present judicial practice. Since the present Criminal Law does not have the specific provision about this behavior, it makes that the punishment of this behavior is in the corner which has no law to depend on. The judicial departments in all parts in our country treat this behavior in the practices differently. The author analyzes the several present treatment, i.e. the innocence, the establishment of the extortion crime, composing the seal-faking crimes of companies, corporations, public service institutions and the public group, composing the fraud crime, or the suggestion of establishing a crime named as litigation fraud crime separately. On these bases, it starts from the characteristics of the litigation fraud behavior, the explanation of the Criminal Law, the purpose of the Criminal Law, and analyzes the litigation fraud behavior further, and brings forward boldly that this behavior constitutes the fraud crime. At the same time, combined with several real cases, from the angle of solving the determination of the litigation fraud behavior and the disordered treatment in the judicial practice, the author thinks the Supreme Court should make the related judicial explanation as soon as possible, and clarify the treatment of the litigation fraud behavior as the fraud crime. Then from the possibility of the present legislation mode of establishing the fraud crime, it appeals to the legislation circle to consider setting up the new crime for this behavior in revising the Criminal Law, for the convenience of the punishment.Section-4, it is expatiated on the criminal responsibility for the fraud crime. The Criminal Law of 1997, compared with the Criminal Law of 1979, the provisions of the criminal responsibility for the fraud crime have changed a lot. It strengthens the property punishment for the common fraud crime, especially the application of the fine punishment. And it adopts the system of necessary branch for the application of the property punishment. It has pertinences to the criminal punishment for the fraud crime for the interest. Through the analysis on two opinions whether the legal punishment could be the death penalty for part of finance fraud crime, combined with the present criminal policy in our country, it thinks the death penalty application for part of the finance fraud crime. It does not deny the criminal policy of the less-death, and the carefulness of death penalty which is insistent in our country. This could accord with the situation of our country. Through comparison, it analyzes the provision of the Criminal Law of 1997 rightly in the judicial practice, and understands the legislation spirits of the Criminal Law of 1997 rightly. It makes the rational assessment for the criminal responsibility for the different fraud crime and the crime actor. On the exact determination, it applies the criminal punishment, and beats and prevents the fraud crime effectively.In the conclusion, the author makes a summary of the whole paper. For the present conditions of the fraud crime, especially some new-type problem, it appeals the theoretical circle and the judicial practice department to strengthen the study on the fraud crime, for better beating the fraud crime, and the service of the market economy.