The Judicial Determination Of The Borrowing Type Of Fraud

Fraud,a very common charge in the process of judicial handling cases in our countries, means an act of using deception to cheat the large amount of public and private property for the purpose of illegal possession. In China, with the development of socialist market economy, social relations have become increasingly complex and diversified, which makes fraud more diverse and more secret, also brings new challenges to the judicial determination of fraud. Especially for the borrowing type of fraud, This type of fraud has ‘IOU’, part of return behavior, even ‘guaranteeing’. Due to the different understanding of theory and price, different people have different opinions on its judicial determination. These different opinions are mainly in the whether the act constitutes a crime, contractual fraud, fund-raising fraud or ordinary fraud, how to identify the amount of fraud, the effectiveness of the victim promise, etc. This paper have several hot issues of borrowing type of fraud as the main framework, combined with the analysis of a hard case which I have dealt with.This paper, about 20,000 words, analyzes the case of Wang fraud, lead to several hot issues needed to be discussed in our judicial practice, and try to put forward views and suggestions on related issues.Part I, Induction of this case. This paper analyzes one borrowing type of fraud case. Through a brief introduction of Wang fraud case, then introduce the different opinions and reasons in the course of legal proceedings, and refine the focuses of controversy, which include that act of Wang is folk loan dispute or have purpose of illegal possession, the act of Wang is simple seizure of property or disrupt the order of market economic. The focuses also contain the cheating amount is the amount given by the victim or Wang actually got, whether consent of the victim prevents Wang from crime.Part II, Legal analysis of related issues. This part is the emphasis of discourse analysis. Firstly, from the criminal presumption of the purpose of illegal possession, analyze whether the conduct constitutes a crime; Secondly, from the perspective of crime constitution and the method of system of interpretation, analyze the differences between contract fraud and ordinary fraud; Thirdly, from the characteristics of illegal fund-raising behavior, analyze the differences between fund-raising and ordinary fraud; Fourthly, from perpetrator’s subjective purpose and behavior’s social harm, analyze how to determine the amount of the fraud; Fifthly, from the concept of commitment of the victim and the constituent elements, analyze the effectiveness of commitment of the victim.Part III, Conclusions and recommendations of this case. This paper uses the case study method, and proposes how to identify Wang fraud case. The author believe that act of Wang of borrowing from many people has violated the provisions of Article 266 of Chinese ‘Criminal Law’, so constitute fraud; determining the amount of the fraud with Wang’s actual income; the victim did not ask to hold Wang accountable, but it did not have effectiveness of preventing crime.Part IV, revelation of the case. In order to better identify fraud, should perfect the Article 266 of the ‘Criminal Law’. First, stated on the crime of fraud in this article as ‘fraud’, not only is fuzzy, and the lack of operability, it should be ruled the subjective and objective elements of criminal purpose, criminal act, criminal result etc, in order to understanding and applying better; Second, the word of ‘property’ is not sufficient to cover the extension of fraud object, should increase the ‘property interest’ to avoid the different interpretation of ‘property’; Third, ‘large amount’ is not sufficient to cover fraud prosecution standards, should add ‘serious case’ to correspond to ‘large amount’.