The Study On The Several Legal Problems Of The Contractual Fraud

This paper is divided into four chapters. The first chapter is the introduction of the contractual fraud, where the definitions and characteristics of the fraud and contractual fraud are analyzed in details as well as the differences between the fraud and other relevant concepts, and the constitution, the causes, characteristics and sorts of the contractual fraud.The second chapter is concerned with the definition of the contractual fraud. Due to the different views on the ways to distinguish the ordinary contractual fraud and the crime of contractual fraud, the practices are quite different among the juridical and law enforcement department. This phenomenon is the premier intention that started the author to work on this subject. In this chapter, the similarities and differences between the concepts of the contractual fraud in civil law and criminal law are compared in accordance of the civil-law theory and criminal-law theory. Hence, the suggestion of amending the Article 224 of the Criminal Code of China is put forward in order to unify the provisions in the civil branch and criminal one as well as perfect the legal system of our nation.The main innovations of this paper are in the chapter three. Though the concrete standards of defining the contractual fraud and the crime of the contractual fraud have already been legislatively affirmed, there are still considerable problems in practice. On the basis of many years' field experience, the point is put in the third chapter of this paper that the key issue of this problem is the different interpretation of "the wrongful possession (or illegal possession)" in the criminal law and civil law, and this different interpretation results in a vacancy of the legislation. Thereby, in the paper, the author proposes to strengthen the protection of the property rights in the legal system, and prevent the swindle of properties in the form of contracts. Besides, the author puts forward the individual understanding of the term "the capability of performing the contract" in detail as well.Meanwhile, the third chapter is also concerned with the dispute of the jurisdiction of the contractual fraud and the crime of the contractual fraud in legal practice, the civil and criminal litigations caused by the same contractual fraud, the jurisdiction dispute between the police and the court. After analysis of all those disputes mentioned above, the conclusion has been reached that, in dealing with the issue of contractual fraud, the concerning departments should not apply the principle of the criminal-priority but should use the principle of the parallel adoption of the criminal law and civil law. Based on this opinion, the author explains the feasibility of practicing the principle of the parallel adoption in the present circumstance of our country, hoping to bring about some new idea on the cross study on the criminal law and civil law.The last chapter of this paper is concerned with the legal liability of the contractual fraud. In this part, the author discusses and analyzes the civil liability, the administrative sanctions and the criminal liability respectively, focusing on the reasonability of the compensation of the punitive damages and legislative proposition on the administrative sanctions of the contractual fraud out of regard for the practice in the law enforcement. Moreover, it is also proposed in the paper on how to deal with the integration of the liabilities of the civil and criminal liabilities based on the theoretical analysis and experience in the practice. It is humbly hoped that the ideals and propositions in this paper could be helpful in the practice of dealing with the series of problems in the contractual fraud cases.