Research On Objective Behavior Of The Contract Fraud

The crime of contract fraud is a special crime.It was separated from the ordinary crime offraud. With the rapid development of market economy, the trend that make use of the contractbusiness to defraud rising rapidly. These new criminal behaviors not only seriously infringsomeone else’s lawful property rights and interests, but also disrupt the order of normalmarket transaction at the same time. Separating the contract fraud from the ordinary fraud, isthe crying needs that more effective against the economic crime that take advantage of thecontract, and further to protect the national normal market transaction under the new situation.The contract fraud as a new additional charge of the new emendatory criminal law in1997,also greatly attracted many scholars’ attention, the related theory researches come in flocks.Because of the contract fraud comes from the civil field, belongs to the another typicalexception in the cross field between the Civil Law and Criminal Law. How can we distinguishthe contract fraud from the ordinary civil economy dispute, has become the hot issue in thetheory and practice field. But mostly scholars pay more attentions to the question that how tograsp the purpose of illegal possession or the limits of the contract. By contrast, the researchon the objective aspect of contract fraud is not very detailed. Therefore, this paper mainlyfocuses on the discussion of the objective aspect’ elements of contract fraud, with the view ofpreferably helping to grasping the subjective aspect and separating from the civil dispute, andcan be a better help for affirming the contract fraud in practical.The main structure of this article mainly consists of five parts. Fristly it defines themeaning and characteristic of objective behavior of contract fraud.After dividing the objectiveaspect into four characters: the time elements, the means elements, the victim’ behaviorelements and the results element, the focus of the whole text transfer to the discussion aboutthe four elements.The first part is about the meaning and characteristics’ discussion of the objectivebehavior of the contract fraud. Through the analysis of some scholar’ main views, the authormaintains that, the definition about the objective behavior of the contract fraud should be based on the provision of our nationnai Criminal Law, it specificly contains the time element,the means element, the victim’ behavior element and the result element and so on..The second part is about the discussion of the time element. The article bases on theprocess of signing and performing the contract, mainly discusses the essential of the contract’formation and validity to the establishment of the crime of the contract fraud, and how toidentify the behavior that use the commercial advertisement to defraud. Through the furtheranalysis of the theory and practice, points out that the establishment of the crime of thecontract fraud should be based on the establishment of the contract, but not on the validity.The key to identify the behavior that use the commercial advertisement to defraud is that, thecommercial advertising whether belongs to offer or not, and the contract relationship hasformed or not.The third part is about the discussion of the means behavior element. It specific containsthe understanding to the falsely using others’ name, false guarantee, false to perform,escaping and other methods and so on. The paper mainly based on the common features of thefabricating facts and concealing truth, put forward the independent standpoint.The fourth part is about the discussion of the victim’ behavior element. This sectionmainly discuss the necessity of the victim’s mistake of law and how to identify it., and thebehavior that the victim hands over the property is essential or not. Firstly, this section baseson the common view that the victim’s wrong ideas is essential to the structure of the ordinaryfraud, similarly thinking that it also is essential to the structure of the contract fraud. And italso comes up with four views to how to affirm the victim’s wrong ideas from the objectiveangle. Secondly, aiming at the controversy that handing over the property is essential or not tothe structure of the contract fraud, the article bases on the comprehensive analysis thedifferent viewpoints of the necessary and unnecessary, thinking that the viewpoint of thenecessary is more persuasive. The other side of the contract hands over the property,whichis essential to the structure of the contract fraud.The fifth part is about the discussion of the results element. This section mainly discussthe necessary of the property damage of the contract’s opposite party and how to identify it,and the criteria of the conviction amount about the contract fraud. After the comprehensiveanalysis to the different academic viewpoints, this section points out that, the contract fraud asa kind of property crime, should be taken the victim’s property damage as a essential element.And the property damage should refer to the damage on the whole, but not the respectiveloss.When identifying the conviction amount, we should distinguish the specificaccomplishment form of the crime at first, then according to the different crime pattern todeterminate the different conviction criteria.. This part still discuss the conviction criteriawhen it happened in some special situation, such as the common contract fraud and the serialcontract fraud, presenting and demonstrating own viewpoints combining with the theory andthe practice.