On Identification Of The Crime Of Contract Fraud

On the basis of the Criminal Law of PRC (1979), the Criminal Law of PRC (1997) provides for some new crimes, including the provisions of the crime of contract fraud, in accordance with which any fraudulent act committed in the economic field by means of a contract is no longer identified as a traditional crime of fraud but as a crime of contract fraud. The crime of contract fraud, which is separated from the scope of fraud crimes as an independent crime to meet the requirements of the market economy environment and currently provided for in the chapter of crimes of undermining the order of socialist market economy, is a crime mainly reflecting its destruction of the order of market economy rather than a crime which is only be regarded as a traditional property crime. How to correctly identify the crime of contract fraud raises new issues for us, including: what do the contracts in the crime of contract fraud refer to, only traditional economic contracts or also including ordinary contracts as provided for in the Contract Law? Are oral contracts included? How to distinguish the acts of contract fraud from the civil disputes arising out of contracts? How to distinguish between civil fraudulent acts and acts of contract fraud? How to identify the subjective purpose of illegal possession?"Penalty is a double-edged sword; if improperly used, both the country and the people will suffer." If acts of contract fraud can not be correctly identified, it will either result in connivance of serious acts which do harm to social order, or cause the criminal law's unduly intervention of the market economy, which will hinder the normal development of the market economy. This requires us to find a reasonable balance or a reasonable division of the circle of crime to maintain normal economic order without going against the spirit of modesty of the Criminal Law.The author proceeds to explore relevant issues concerning the crime of contract fraud based on a specific case, then conducts discussions in respect of related issues by applying related theories and in light of legislative and judicial practices without limiting the paper only on the level of the case, and finally puts forward the author's own points of view. This thesis is divided into four parts with totally about 20, 000 Chinese characters, the content of which is outlined as follows:Part 1: A case description is done to make a brief introduction of the facts of the case, namely relevant information concerning the Sun contract fraud case. Part 2: The issues in dispute of the case are summarized so as to introduce the subject of the paper.Part 3: An analysis of relevant jurisprudence in respect of this case is conducted as follows. Firstly, according to the analysis of the"contracts"of the crime of contract fraud, it is believed that the contracts concerning the crime of contract fraud are mainly economic contracts, and oral contracts are also included in the forms of contracts for the crime of contract fraud; secondly, since the"purpose of illegal possession"is the key factor to distinguish civil fraud from contract fraud, the author discusses the relevant issues concerning the purpose of illegal possession and introduces its meaning, ways of identification and the matter of time for the purpose of illegal possession , and it is believed that the purpose of illegal possession may exist during the execution of the contract may also exist during the performance of the contract; thirdly, during the elaboration of the forms of subjective intention of the crime of contract fraud, it is believed that the issue of the purpose of illegal possession is not identical to the issue of subjective intention as the subjective intention in the crime of contract fraud includes forms of indirect intention. In the course of discussion, the specific issues in this case are analyzed in light of relevant circumstances of this case. This part is the core of this paper.Part 4: A research conclusion of this case and some supplement discussions are made in this part. The author comes to a research conclusion and then makes some suggestions in respect of legislation and judicature for the crime of contract fraud: firstly, based on examination of relevant problems in respect of legislation, the author holds the objects of the crime of contract fraud shall not be confined to be properties but should expand their scope so as to include other property interests, and it is suggested to strengthen the summarization of manifestation forms of the objective acts for the acts of contract fraud to adapt to new circumstances, and meanwhile, the author expresses the reservations for the opinions proposed by others that this crime should be repealed and holds it is necessary to keep this crime for now; secondly, after discussions in the perspective of judicial theories, the author believes that the crime of contract fraud shall be strictly identified by sticking to the principle of no conviction or punishment being made without clear provisions of law and based on objective facts of the case instead of social influences, based on which unreasonable conclusions may be made against the facts.