Reserrch On The Legislation Of Financial Fraud Cirmes

This thesis aims to study the legislative correction problem of financial fraudcrimes. As is known to us, the constituent elements of financial fraud crimes inChinese Criminal Code are based on the Tatbestand of Crime of Swindling(Article266), requiring subjective purpose of illegal possession. But in lawsuit provingprocess, it is so difficult to prove the purpose of illegal possession that the judgeshave to presume the purposes relying on the later facts rather than the behaviour theperpetrators had committed. However, the applies of presumption methods arecontrary to the purpose of illegal possession. Does the purpose generated afterwardscan prove the purpose of the committing? Thus, there is a paradox between thejudiciary practice and the legislation of illegal possession purpose.This thesis argues that the proving problem of illegal possession purpose cannot be completely solved by presumption, and that the judicial issues arise here dueto the defects of the criminal legislation itself. Financial fraud is a kind offraudulence that different from common criminal activity, because the damage doesnot lies in the purpose of illegal possession but the committing itself. The blindexpansion of illegal possession purpose in financial fraud not only caused difficultiesin litigation to prove, but also led to the disproportionate heavy sentencing offinancial fraud crimes. In other words, if the suspects are proved with illegalpossession purpose, it is inevitable for them to take too severe punishments. Thus, in order to avoiding these strict punishments, the suspects always argue that they didnot hold the purpose of illegal possession, and we can never tell if their argumentsare real or not.This thesis extensively studies the financial fraud crimes legislation of differentnations, and fully analyzes existing research results, concluding that the existingFinancial Swindling Crime in Chinese Criminal Code should be replaced byFinancial Fraud, which does not’t require the purpose of illegal possession. As aconcept originated from civil law, Fraud is generally described as a civil tort. But inthe market economy era, a growing number of fraudulent activities have beenpunished as a crime. There are several differences between Fraud and the Crime ofSwindling: both of them involve false statements as means, but the former activitydoes not have the purpose of illegal possession while the latter is just the opposite;the former violating the civil law and administrative regulations as a prerequisite,with the nature of administrative offense, while the latter is simply statutory offense;the former can be proved relatively simple in litigation while proving the latter isalways a tough work. In financial realm, the harm of misrepresentations and falsestatements is increasingly growing, thus many countries punish financial fraud withcriminal penalties, including China. But western countries generally adopt thelegislative model of fraud offenses, which does not require subjective purpose ofillegal possession, with the committing of misrepresentations and false statements tobe adequate to constitute an offense. On the contrary, Chinese Criminal Code adoptsa legislative model of Swindling Crime, which requiring not only false statementsbut also illegal possession purpose. This article advocated the abolition of FinancialSwindling, replaced by Financial Fraud, in order to reduce the difficulty of proof,and to reduce its legal punishment.