Study On The Determination Of "Purpose Of Illegal Possession" Of The Crime Of Contractual Fraud

The crime of contractual fraud which is a kind of swindling crime featuring contract shield and secret means is not very different from the civil contract fraud. It has been universally accepted that the key distinct between them focuses on the purpose of illegal possession. However, in many cases it is difficult to exam this factor due to the complexity of the facts. After careful studies on typical cases in this thesis, the determination of the purpose of illegal possession of the crime of contract fraud should depend on below four issues:first, the understanding of "purpose of illegal possession"; second, the moment when the purpose of illegal possession occurs; third, the determination of intent pattern; forth, the identification of the purpose of illegal possession. In this thesis, my answers to these issues are presented as followed. First, the purpose of illegal possession includes not only an intent to deprive, but also an intent to utilize, so the perfect explanation to it should be the doctrine of "illegal ownership"; Second, the purpose of illegal possession could occur not only before, at or after the signing of a contract, but also before or after the possession of property. The key issues are whether the illegal purpose occurs during the performance of a contract and whether the party has the purpose of illegal possession. Third, the purpose of illegal possession in Criminal Law is not one aspect of subjective intent, but an extra subjective element, not relative to intent or negligence. Fourth, the identification of the subjective purpose should rely on the objective facts, so the judicial presumption should be an essential way to determine the purpose of absichtsdelikte. It is suggested for this presumption that the phase analysis doctrine should be adopted to examin the will factor of specific behaviors, with the analysis on the signing and performance of a contract. In addition, a range of judicial principles which could constrain the presumption itself should be established to prevent subjective or objective incrimination.