The Normative Analysis Of Contract Fraud

The criminal law revised in 1997 adds contract fraud ordinance at Chapter 3, this ordinance is coming from fraud in the 1979 edition of criminal law and the item "fraud using economic contract " from high judicial interpretation of Supreme People's Court and Supreme People's Procuratorate. This Ordinance is tied with economic and market system tightly. This ordinance just gives general describing:The first, the subjective object is not concrete—"illegal possession of intentionally", the second, the objective object is note concrete—there are many actions in the ordinance along with "other means of property interpretation of obtaining the other party", the third, the crime object is abstract and complicated—including market order, contract management and the private and public property.From legislative purpose, the contract fraud is similar with contract cheat, the all are protect the contract signature and implantation. These two crimes have many overlap in practicality also. The unclear describing and the similar result in the difficult of distinguish of these two crimes in judicial practice.From theoretical aspect, there is no judicial interpretation from Supreme People's Court and Supreme People's Procuratorate for contract fraud since 1997. The crime law researchers focus just on crime not on contract. The lack of theoretical research results in the random in practice at different place, different courts even the different judge in the same court. These random have bad impact on the judicial authority, also make the intent of this ordinance hard to implement.From above, it's easy to see that is helpful to expand the research aspect of contract fraud. This paper focuses on hot theoretical problem in contract fraud and difficult practical problem using a case in judicial practice.There are four parts in this paperThe first part:Firstly, the case is brought out with the different opinions in practice. Secondly, the contract fault is introduced briefly. In our opinions, the contract frauds break the market economic order, the contract system order and possess public or private property illegally using contract as tools. It should be punished.In the research of elements of contract fraud, the emphasis are objective elements---the contract fraud must use contract as tools; the contract must invent fact. In the same times, the criterion of company contract fraud is introduced.The second part:the "contract" in contract fraud is researched from bound, form and object. In our opinions, the contract in contract fraud should be market economic contract, not be the contract like marriage, adoption, custody etc. The oral contract should not be included. The object should not be property that have price and should be legal property.The third part:The difference of contract fraud and cheat is described. The differences in objective, subjective, the property and consequence are researched. The emphasis is the transmission of contract fraud and cheat, there are three conditions:the contract is signed and processed; illegal possession intention of the properties of other party; the amount of property is huge enough.The fourth part:We discussed the meaning and identify method of illegal possession intention in contract fraud. Firstly, we introduce the different of illegal possession intention in civil law and criminal law. Furthermore the identify method of illegal possession in contract fraud is introduced. Some hot and difficult issues in possession are discussed in the chapter also.At last, we discuss the judicial presumption exploited in illegal possession of contract fraud. For instance, the case discussed in this paper is researched in the aspect of illegal possession.