Research On Judicial Identification Of Crime Of Fraud On Letter Of Credit

Letter of Credit, is one approach of current international trade payment (settlement).With the widespread use of the letter of credit in economic activities, the letter of credit fraud has become a new form of fraud. In China, in response to this new type of crime, the National People’s Congress adopted the Decision on punishing crimes against financial orders, a separate criminal law, in the late nineteenth century. In 1997, the Criminal Law amendment absorbed the content of the letter of credit fraud and formed the current crime. However, the academic area and the practical authorities are divided on some issues related to the application of that crime, such as whether the purpose of illegal possession is the constitutive element, the behavior of the crime, the classification between the crime and other financial fraud crimes. The dissertation analysis these issues on the basic of the related research achievements and the judicial practice problems, in order to guide the future judicial practice.Although China has now become the world’s second largest economy, but domestic operators are not so familiar with the use of financial derivatives in international trade and the risk aversion, which resulting in a high level of international trade settlement risk. Article 195 of the Criminal Law stipulates the letter of credit fraud, to punish the illegal behavior, but in practice, the applicable issue has puzzled the judicial staffs. The criminal law scholars share many theoretical controversy on this crime, the author analysis the related issue.On the issue of subjective element of the determination, the criminal law scholars have significant controversy and form two point of views, which are "the view of necessary" and "the view of unnecessary". The dissertation refutes the four reasons for the view of unnecessary and analyzes the relationship between the special provision and the common provision, further interpret the meaning of the term "illegal" and discuss the constitutive elements issue. The conclusion is the "purpose of illegal possession" should be the constitutive element for the decision of letter of credit fraud.In judicial practice, judicial enforcement has been troubled by the judicial determination of "purpose of illegal possession".In the author’s opinion, the first thing should be done is to clear the content of "purpose of illegal possession", then based on relevant laws and regulations, using direct evidence or circumstantial evidence to determine the standard of proof of the subjective aspect of this crime "purpose of illegal possession", and finally apply the presumption method to prove that the perpetrator’s subjectivity of "purpose of illegal possession".On the issue of objective aspect of the letter of credit fraud, the criminal law enumerates three relatively specific behaviors and a fallback behavior. In the case of "using forged or altered letters of credit or the accompanying documents file to for letter of credit fraudulent activity", To identify the judicial determination issue, the dissertation discuss the differences between "fake "and "altered", and introduces several methods of "forging documents", especially two common ones in practice. For the "use of nullified letter of credit for fraud activities",the author lists several "nullified letter of credits" for related analysis, and discusses how to understand the "credit fraud" behavior, clarifying the judicial determination for this behavior. For "using other methods for letter of credit fraud", the dissertation discussed the contradiction between "open clause" and the "principle of legality for crime" and several common behaviors, to clarify the judicial determination of this type of act.On the issue of classification with other financial fraud, the dissertation made a comparison analysis on the theory, behavior and the difficult problem, to define the differences between them.