On The Contract Effectiveness Of Any Contract Fraud Case Involving Both Civil And Criminal Laws

A case involving both civil and criminal laws originates from social reality, and is a typical issue generated by overlapped and intercrossed application of legal regulations in both the civil and criminal aspects in judicial practice, therefore it bears high practical value. However, since this issue lies on the theoretical edge of the two branch laws, there is less discussion from the perspective of academic and theoretical basis and insufficient amount of clear and complete laws, statutory regulations and judicial interpretations to meet the practical needs, thus resulting chaos in terms of the application of laws or even conflict between criminal and civil rulings. Therefore, being different from the study of precedent scholars who focused on the application of procedures in respect to cases involving both civil and criminal laws, this paper, based on status quo of judicial adjudication in recent years and urgent practical needs, attempts to study the contract effectiveness of the cases involving both civil and criminal laws from the perspective of substantial law, with a view to promoting the unity in terms of the application of laws in practice and progress in the theoretical study of the cases involving both civil and criminal laws.Because of a large number of crimes that involve both civil and criminal laws, we can not study all of them one after another. Moreover, there is an increasing trend for the number of cases involving fraud in recent years. This paper specifically selects the contract effectiveness of any contract fraud case involving both civil and criminal laws as its focus of study. What worth to be mentioned is that in order to make the study of this paper more specific, the writer has searched and sorted out the cases over recent three years on the “www.pkulaw.cn”. In particular, the writer has summarized major contract types and criminal offenses involving in such crimes, and finally, restricted the contract types to money borrowing contracts and loan contracts, and the criminal offenses to the crime of cheating on Loans, crime of contract swindling, crime of fraud in financing and crime of fraud with the hope to form a mode that can be widely applied in the study of other types of cases involving both civil and criminal laws based on such modes. In terms of study methods, this paper has taken the case analysis approach in which many cases have been quoted to explain the issue and prove the arguments so as to avoid pure theoretical discussion beyond judicial practice. In terms of the content of this study, this paper intends to clarify the theoretical and practical conditions for this issue by combing through the status quo of Chinese judicature, legislative regulations and theoretical debates. In the part describing the status quo of Chinese judicature, the writer has introduced the status quo of judicial adjudication within the country over recent three years in a vivid manner using graphic presentations, and pointed out that root cause of the involvement of both civil and criminal laws lies in the complex nature of legal facts, as well as three outstanding features of those cases. In the part describing legislative regulations, the writer has not limited the discussion of this paper on normative documents at such level, including laws, statutory regulations and judicial interpretations, but also introduced the opinion maintained by local High People’s Courts using examples of Zhejiang Province, Jiangsu Province and Anhui Province. The reasons this paper has been written in this way are mainly because of the absent of statutory regulations and different opinions maintained by the local Courts. In the part describing theoretical debates, the writer has introduced three theories, which is absolute invalidity, pending validity and compromise. After combing through the status quo of judicature, legislation and theory, the writer does not rush into elaborating core issues, but reiterates the three basic theories of both the civil and criminal laws, namely the autonomy of private laws, modestly restraining spirit of the criminal law and the differences between negative evaluations of both civil and criminal laws with the expectation to laid the foundation for our discussion of substantial issues and to resolve the misunderstandings maintained by certain Judges in their judicial practice. Thereafter, the writer starts to differentiate and analyze the effectiveness of main contracts, in which based on Article 52 of the Contract Law, three viewpoints with respect to “the theory of invalid contract”, which are “the conclusion of a contract by cheating or a contract damaging the State interests”, “a contract that conceals the illegal intention with a lawful form” and “compulsory provisions that violate the laws or statutory regulations are refuted. Next, the viewpoint maintained by the writer has been proposed, which holds that the effectiveness of a contract involving in a case should be variable and revocable and the specific reasons of which have been set forth from the perspective of respecting the choice of the parties concerned, safeguarding the interests of the parties concerned and promoting the development of market economy. In the end, this paper turns its attention to the civil liabilities of the actors, and holds that the civil and criminal liabilities of the actors of cases involving both civil and criminal laws coexist with emphasis given to the discussion of the assumption of liabilities by guarantors, for the purpose of seeking academic and theoretical support for safeguarding the interests of creditors with goodwill.