On Distinction Between Contract Swindle And Contract Fraud

The thesis is about a concrete problem in the field of "crime of contract swindle" of the criminal law. The 224th item of our criminal law classifies the criminal acts of contract swindle as crime of contract swindle in order to intensify the punishment for the criminal acts which severely interferes the economical orders and destroys the orderly development environment of economy. In a series of problems to define the crime of contract swindle, one of the most intractable problems is "how to exactly distinguish contract swindle and contract fraud act" in justice practice. It is because that it is difficult to observe insignificant differences of the objective outer characteristics such as the flaw of contract practice and the loss of the opposing party in contract swindle and contract fraud. Particularly, some cheating ways in the course of contract fraud are very similar to the objective acts and methods of the contract swindle. Furthermore, certain parties and judicial bureaucracies will subjectively identify contract fraud as contract swindle, which makes it more difficult to distinguish the two. It results the discrepancies of the relevant cases in justice practice and the being at large of the criminals. Therefore, the thesis makes a further analysis on the distinction between contract swindle and contract fraud and provides references for the justice practice. It also presents the examples of contract swindle to illustrate my own superficial opinions on the principles of "criminal law first, then the civil law" in the case dealt mechanism. Hope that it is helpful to deal with the cases in the justice practice process.The purpose of the thesis tries to solve the difficult problem in justice practice, that is, how to exactly distinguish contract swindle and contract fraud. Contract swindle belongs in the criminal field and the act of contract fraud in the civil field. However, the aims and adjusted ways of criminal and civil laws are quite different. If the boundary between the two is not clearly distinguished, the results of the similar cases will be totally different and the justness of the law will be seriously influenced. In order to distinguish the two, it is necessary to understand what contract swindle and contract fraud are. Therefore, the first chapter presents the brief introduction of contract swindle and contract fraud, including the implications and characteristics of them, which makes preparations to distinguish the two.The second chapter provides the promiscuous states and the causes of contract swindle and contract fraud. Even though contract swindle and contract fraud are absolutely different illegal acts in their characteristics, it is very difficult to distinguish the two because of a number of similarities between them in justice practice. The similarities include the following: firstly, both are a kind of special cheating acts related to contract and have the same occurring foundation; secondly, they are conducted subjectively and by purpose; thirdly, they have cheated the opposing parties objectively; fourthly, it is seemingly fair and voluntary for the two parties to sign the contract and put it into practice, however, there are flaws in the opinion expressions and cause-effect relations between the results and the cheating conducts, fifthly, contract swindle implies contract fraud because the former includes the characteristics and compositions of the latter and the contract fraud may lead to the legal results of the contract swindle. The chapter mainly analyzes the promiscuous states and causes between contract swindle and contract fraud in order to provide the reasons and conditions to distinguish them in the following chapter.The third chapter emphasizes the fundamental differences between contract swindle and contract fraud. It is the key part of the thesis. There is not an effective and unified rule to distinguish the two in justice practice and it is being further probed in the theoretical field. Generally speaking, different subjective purposes decide different objective conductions; different conductions violate different social relationships, which will lead to different social harms and regulate by different laws. Therefore, subjective purposes play a critical role in defining the characteristics of the conducts. According to the 224th item of our criminal law, "the subjective aspect of contract swindle must have purpose of illegal possession". Therefore, purpose of illegal possession plays an important role in deciding whether it is contract swindle or not and in distinguishing between contract swindle and contract fraud. The chapter holds the view that different purposes of possession are the fundamental differences between contract swindle and contract fraud. It also presents brief discussion of purpose of illegal possession in contract swindle.The fourth chapter of the thesis provides the related responsibility regulation of contract swindle and contract fraud and tries to pursue a way to avoid the confusing situation in order to provide theoretical references for improving the manipulation mechanism. Currently, in the criminal judgment of contract swindle, there involves civil and commercial legal relationships because the crime of contract swindle is the further advance of the act of contract fraud and is the criminalized form of the serious civil and commercial illegal act. As for the intervened cases between criminal and civil laws such as contract swindle, we should take criminal cases facts as the investigated fact evidence and take civil party's fault situations into consideration to make fair and just judgment in order to achieve the most consistency and harmony. Otherwise, conflicts of department laws will be resulted.