Study On Several Issues Of Fraud Crime By Contract

Fraud crime by contract, as one of the crimes newly stipulated by the Year 1997 Penal Code after revising, is a kind of special fraud crimes which appear in the establishment and development of our socialist market economy. Because of its concealed means, complicated situation and serious harm, fraud crime by contract has been one of the focuses concerned by both the academia of criminal law and the judicial practice. So the paper, which is divided into four sections, discusses the following issues of the crime from the point of view in both the theory of criminal law and judicial practice, and raise the author's point of view.Section One: the Outline Introduction to Fraud Crime by ContractFraud crime by contract refers to such an conduct that one party, during the course of signing or fulfilling a contract, commits swindling acts of adopting fictional facts and concealing the truth to defraud money or property of the other party for the purpose of illegal possession. Its essential nature is the fraud by contract.The independence of the fraud crime by contract became a certain product for the development of the economy since the People's Republic of China had been founded. At first, the legislative process of the crime reflects the essence of law, namely, law is the reflection of ruling class's will, which is determined by the material living conditions of the ruling class. And secondly, it is necessary for the establishment of our socialist economy, which is not only an economy of contract-free-style, but also an economy ruled of law. According to the fraud crime by contract, we can punish the complex fraud crimes by contract exactly and prevent the interference of economic activities from the criminal justice. Finally, because of separating the fraud crime by contract from general fraud crime, it is easy to implement the principle of a legally prescribed punishment for a special crime, standardize the judgment and protect citizens'legal rights.Section Two: Study on the Objects of Fraud Frime by ContractThe objects of fraud crime by contract refer to the social relationships which are protected by the criminal law and infringed by the crime. The author believes that the market exchange order and the ownership of public and private property are the direct objects of the crime.The maeket exchange order, which is the basic rule for not only the parties of a contact but also the operation of the market economy, is certainly infringed seriously by fraud crime by contract. At the same time, the crime, which originates from the fraud crime , infringes the whole ownership of public and private property.As the definition of the objects above, it is easy to protect the property rights of contracts parties effectively. Therefore, market order and moral system of social credit will be optimized.Target of Crime refers to something that is the material carrier and can reflect the object of crime. In the author's opinion, the target of the crime is the property concerned.,and the contract is not the targets but the means of the crime.And the target of the crime is the property of the other party, which includes property benefits. Firstly, the property must have exchange value. Secondly, the property must be in the market business. And finally, the property should be objects of the contracts, namely, commodities of the trade or guarantee to the contracts.Section Three the Definition of the contract concerned in Fraud Crime by ContractBased on the definition of the objects of the crime above, the author prefers that the means of the crime is the contract concerned whether oral form, writing form, or other forms. Its features are as follows: first, such contracts are means of exchanges of commodities and can bring benefits to the parties; Second, the contracts exist in the market, reflecting the principle of honesty and credibility; Finally, such contracts include certain non-civil contracts, which can reflect the objective aspects of the crime, such as some labor contracts, administrative contracts and so on.From the point of view of legislation, in Article 224 of the Penal Code, the word "Sign Contracts" should be changed to "Make Contracts" to collocate with different forms of contracts, and the word "Goods" should be changed to "Property" so that the property benefits could be covered by the "Property" as one target of the crime. Only in this way, the principle of a legally prescribed punishment for a special crime can be carried on exactly.Section Four: the Identification of the Subjective Aspects of Fraud Crime by ContractThe subjective aspects of the crime show direct intention and the purpose of illegal possession. In the process of fraud crime by contract, in order to possess illegally the other party's money or property, the actor commits swindling acts by contract, which expresses direct intention of the actor. The facts of the crime intention are as follows: the offender knows perfectly in his mind that his fraud by contract would violate the principle of honesty and credibility and infringe the property of the other party. At the same time, the offender hopes for the illegal possession of the other's property in his will. The indirect intention, which does not fit the purpose of illegal possession, is not a subjective aspect of the fraud crime by contract.The purpose of illegal possession is one of the necessary parts which compose the subjective aspects of the crime. Without it, the actor does not commit the crime. Illegal possession means that the offender commits fraud crime by contract in order to be the owner of others'property unlawfully. The time of its emerging is either before the contract or during the course of the contract. When identifying the purpose of illegal possession, we should adopt the means of judicial presumption on the basis of the principle of the unity of objective facts and subjective conditions scientifically, namely, according to the facts which have been detected and laws concerned, we should exclude opposite interpretations and infer the facts concerned. Disproof is permitted to overturn the conclusion so as to avoid punishing the innocence.