Cognizance On The Illegal Possession In Crime Of Contract Fraud

In the criminal law theory and current judicial practice in our country, the determination on whether a certain behavior constitutes a crime must adhere to the principle of consistent subjective and objective element. On the cognizance of crime of contract fraud, the objective element requires the doer to implement the contract fraud behavior, while the subjective element requires the doer to have the purpose of illegal possession. However, the subjective element of “illegal possession” brings difficulties for the cognizance on crime of contract fraud in the judicial practice. At present relevant articles of the criminal law and relevant judicial interpretations still focus on the contract fraud act and the failure to return the vast amount of property brought from the act, making the objective element attract more attention in the judicial cognizance but making it easy to fall into the objective impunity, which causes the judicial personnel to ignore the element of subjective purpose of “illegal possession” in the cognizance on crime of contract fraud. The ignorance and deviation from the element will result in the wrong nature determination of the contract fraud and blandly determine the nature of ordinary contractual disputes as the criminal offense, causing the abuse of the criminal penalty.This paper is a case analysis paper and is composed of five parts in addition to the introduction and conclusion. Part one selected partial contents of the real case, and analyzes the disputes over the cognizance on “illegal possession purpose” in crime of contract fraud from the defense opinions of the parties of prosecution and defense and the handling opinions of the court. Part Two takes the comparative elaboration method, and introduces relevant theories on “illegal possession purpose” in China and foreign countries. Part Three takes the literal explanation method, carefully cards relevant provisions in the criminal law and relevant judicial interpretations in our country, and the cognizance on illegal possession purpose in crime of contract fraud by the judicial interpretation nature documents and analyzes and elaborates the importance of the subjective element of “illegal possession purpose” in crime of contract fraud. Part Four elaborates the rationality and defect of the application of presumption rule into the judgment on illegal possession purpose in crime of contract fraud. Part Five further elaborates the thinking over the cognizance on illegal possession purpose through analysis and comment on the typical case, and proposes the opinion that the law and rule for judicial trial originates from the judges' experience, which are prone to provide a thinking and judgment method for the judges and the final factor which influences the judges' conclusion is the new experience.In sum, the subjective element of illegal possession purpose is of great significance to the cognizance on whether crime of contract fraud is constituted and the amount in the fraud, the research on which requires deeply grasping the meaning of illegal possession purpose and placing the application of presumption rule and the judges' judicial experience on the same important place.