On The Protection Of Legal Interests Of Fraud

The crime of fraud is one of the traditional property crimes, and is a brainpowercrime which has an insatiable desire for the interest at the same time. After theIndustrial Revolution, with the continuous development of the modern scientifictechnology and the social economy, separation of ownership and possession of theproperty occurs and forms of property becoming diversification. Especially with thedevelopment of the payment and the variation of property using form, infringingobjects of a fraud have became more complex and showed the extensive trends. Andalso the content of legal interests of fraud crime has expanded. About the protectionof legal interests of fraud, there are a lot of controversies among judicial practices andtheoretical circles. Therefore, to study and learning from foreign judicial practicesand academic discussion on these controversial issues can be helpful for us.First of all, it is necessary to define the correct definition of the crime of fraud.Fraud is divided into broad sense and narrow sense of the crime of fraud, the narrowsense of the crime of fraud which is also called general fraud. The provisions of thearticle151of the fraud crime on criminal code in1979and the article266of thecriminal code in1997are both too simple. The criminal law scholars on the conceptof crime of fraud have a different point of view. The author pointed the conception ofcrime of fraud must disclose the connation and extension of conceptions of crime offraud exactly. Secondly, the author introduce the legislative mode about crime offraud of two legal systems of countries and regions, it include two modes: singlemode and separate mode. Some countries and regions of the criminal law describe theelements of fraud object specific and some generalized. The earlier English criminallaw describe the object of fraud include only money, objects, goods, commodities.That is to say, refers only to money and tangible personal property. Now someAmerican states has expanded the scope object of fraud in criminal law, including realestate and all valuable things.Fraud is used to specifically to classes of property fraud crime has been acknowledged in many countries. But about the protection of legal interests andobject, there are so much debate. Traditional Chinese theory of criminal law bases thecriminal object theory on former Soviet social relation theory, which apparentlyshows its limits. The direct object of crime of fraud is the ownership of public orprivate wealth. The author suggested that we should comprehend the object of crimeof fraud abroad. It include not only all kinds of property, but also the interest ofproperty. The legal interests of crime of fraud should contain ownership, other realinterests in civil law, possession which need recover its original status. The authorbelieves that the protection of legal interests of fraud is basically equivalent to thecriminal object of fraud.Theories about the protection of legal interests of fraud have experienced adeveloping process, especially represented by Germany and Japan. After the secondworld war, due to the development of social economy, the theory of economicproperty in Germany or the theory of legal-economic property gradually replaced thetheory of legal property. In Japanese, the theory of ownership have been replaced bythe theory of possession or by a qualified theory of possession. The author thinks that,the property of the German economy said can be adapted to developing socialeconomy better, while Japanese on the foregoing theory has great developmentlimited. The standard of what is the protection of interests of fraud should beobjective, according to whether it have economic value in fact, rather than to confinethe interests as interests in civil law. So, the object of the crime of fraud should beobjectively has a certain value or management possibility of tangible or intangibleproperty and other interests. In particular to real property and personal property,tangible things and intangible things, contraband and obligatory interests, and so on.Buried sacrifice is not the object of fraud.As for the property or interests based on payment for illegal reasons can becomethe criminal target of a fraud crime, we should develop the three situations. Somescholars divided situations into two categories, the act of property cheat anddeception from illegal debt. Some scholars divided situations into illegal propertyfraud and illegal interests fraud. For common multiple cases in practice, the authorsuggests that payment based on illegal reasons can be classified into three categories: The first kind of payment for illegal reasons is the act of illegal property cheat, suchas to defraud the other party’s bribe money by a dishonest way, advance for advancetrading, the money for prostitution. The second category is a type of deception fromillegal services or personal service, such as the actor who doesn’t intend to paymoney at first promises to pay money later, but when the other party has alreadyprovided prostitution or hostess or perform the lover’s contract or a black rentalservices, the actor deception from the payment. These malpractice all belong tointangible services. The third category is a type of deception from illegal debts, whichmeans the actor who intended to pay money at first, but after accepted the services theactor didn’t pay money by cheating the other party out of the payment debts. Thethird type is the different from the second type, the second type of the actor whoalways didn’t pay.The first type of the act of illegal property cheat, should constitute the crime offraud. The second type of deception from illegal services or personal service, shouldconstitute the crime of fraud. The third type of deception from illegal debts shouldsplit in the following situation to discuss. Cheating the other forgive the debts of theprostitution such as immoral debts, should constitute of fraud. The actor forgive theillegal debts of hiring thugs or contract killings, does not constitute a crime of fraud.And it should constitute the other crime in the criminal law. After received thecontraband, actor deception from illegal payment debts, which should constitute fraud.Deception from gambling debt should constitute the fraud.This article observes the two legal systems in the major countries and regions onthe protection of legal interests of fraud from the perspective of comparison. Incombination with the theory and practice of our country, the author clarify theconcept of fraud, the scope of the object of fraud, the protection interests of fraud.The third part analyzes the interests of payment for illegal reasons on criminal law, Ihope it will be helpful for judicial practice.