On The Identification Of Fraud

The crime of fraud is obviously deceptive. It cheats amounts of public and private property, infringes upon the owner's property rights and disturbs the order of the market economy. With the economic development and the advancement of technology, the crime means constantly updates, the fraudulent conduct becomes much more complicated, and the amount of money is more and more huge. This paper focuses on studying the fraudulent conduct of the fraud crime. The conduct is the basic problem of a crime, and the fraudulent conduct is the core of the fraud crime, so discussion on the fraudulent conduct is very important. In the introduction, according to comparing and analyzing, the author defines the concept of fraudulent conduct. That is the action of that actor makes the inflictor wrongly deposes his property by composing the event and concealing the truth to cheat biggish amount of public or private property, for the purpose of unlawfully possessing the property of the inflictor. This paper minutely analyzes the structural pattern of fraudulent conduct, that is the process as the fraudulent conduct, the inflictor deceived, the act of delivery, the obtain of money and the property loss. Based on combing the concept and structural pattern of fraudulent conduct, and aiming at the disagreement and controversy in the groups of criminal law and judicial practice, the author discusses concretely the determination on fraudulent conduct with other special types of fraud and other criminal acts, triangle fraud and network defraud. Apart from the introduction, this paper includes four parts:The first part concretely introduces the structural pattern of fraudulent conduct. The greatest difference of fraudulent conduct and other crimes against property lies in the particular acting structure or behavior, that is, the actor cheats for the purpose of unlawfully possessing the inflictor's property, the inflictor has the wrong understanding of property, the inflictor incorrectly deposes his property, the actor obtains the property and the inflictor's property is damaged. These five elements are the necessary elements to constitute the fraud. Therefore, the author analyzes fraudulent conduct on the basis of this structural pattern and the cause-effect relationship of these five elements. The legal effect derived from the structural pattern of fraudulent conduct is the standard of the determination of fraud. The author thinks"control"is the standard to distinct whether it is the fraud or not.The second part concretely discusses the determination on the fraudulent conduct with other special types of fraud. At the essence of fraud, this paper discusses the problem of definitions of fraud, contract fraud and financial fraud. The key to the distinction of contract fraud and fraud is whether the actor uses the contract to cheat. Fraud and financial fraud are both in substance cheating by making up the event and concealing the truth for the purpose of illegal possession, but there are still obvious differences at the object of crime, the objective performance, the subject of crime, the target of crime and so on.The third part concretely describes the determination on the fraudulent conduct with other criminal acts. The essence of fraudulent conduct is that the actor cheats the inflictor by concealing the truth and possesses the property according to the inflictor's incorrect thoughts. Therefore, as long as we hold the essence of fraudulent conduct, we could make the definitions of fraud, theft, extortion, gambling and intrusion. The key to the distinction of fraud and theft is whether the inflictor deposes his property on the basis of his wrong thoughts. The inflictor in extortion is forced to hand out the property by the mood of fear or horror, while the inflictor in fraud hands out the property willingly driven by his wrong thoughts. The determination on gambling should be settled on particular case. If the actor impersonates a functionary of a State organ for material benefits, he will then commits trickster and fraud simultaneously, in which the one with heavier punishment prevail;If the punishment is tie, the special designed one prevails. Concrete analysis of the action is important, Fraud and Crimes of Producing and Marketing Fake or Substandard Commodities lies in the distinction between acts of the person's subjective purpose and objective behavior. intrusion and fraud in general are easy to distinguish, however, "refused to refund " may act as directly refuse, but may also in the form of deception when is necessary to pay special attention to identify with fraud. The forth part specifically discusses the identification of new fraud. The author believes that fraud in litigation and fraud on credit cards should fall into triangle fraud. The conduct of fraud and fraud in litigation are exactly the same objective, the latter one is more particular. There exist different views between criminal law theory and judicial practice on the identification of fraud in litigation, which mainly focus on the subject and conduct of crime. In the writer's view, fraud in litigation may fall into Fraud. Usually, the target of the conduct and the victim are not the same, so most jurists in continental legal system, such as Japan, hold that fraud in litigation is triangle fraud. As for"malicious overdraft", the author thinks relevant provisions in Penal Code should be removed. In light of German legislation, "malicious overdraft" is alone stipulated as "the abuse of credit card crime.""Theft and use of credit card", I think, conforms the identification of Fraud as stipulated in the "Criminal Law" in Article 196. The object of crime in network defraud is beyond the public and private property franchise, and though network defraud cheats by making up the event or concealing the truth, the crime means is relatively simple. So the author thinks that when Chinese Criminal Law is revised, the network defraud should be specially regulated, in order to stop or prevent network defraud effectively and improve the system of Chinese Criminal Law.