On The Validity Of Contract In The Crime Of Contract Fraud

The crossover problem has been the fringe of civil law and criminal law,in consideration of the civil law and criminal law theory,it is of great significance to solve the difficulties and doubtful points of the crossed case of civil law and criminal law.Because the research on the cross between civil and criminal is still at the primary stage,there is a big controversy about the validity of the contract for the crime of contract fraud,thus leading to determine of the effect of contract is conflict and confusion.In the first part,mainly analysis the status of legislation and judicial present situation of our country,found that there is no provision in the law of our country,the only judicial interpretation is also about how to determine the effectiveness of the loan contract in the crime.In judicial practice,some courts are directly based on contract fraud that the contract is invalid or revocable,the applicable legal basis not given in the referee's instrument,which leads to the conflict and chaos in judicial practice.In theory,to solve this problem,there are three views on effect of contract in the crime of contract fraud,including "invalid","effective" and "revocable".The invalid think that civil law should be in accordance with the criminal law point of view of the perpetrators of the act to be completely denied,so the contract does not have legal effect;The effective think that the civil law should be independent of the criminal law,not only because of criminal behavior and affect the effectiveness of the contract in civil law;the revocable think that the validity of the contract should be based on the interests of the interests of the victims,to give the victim the right to revoke,more conducive to the protection of the rights and interests of victims.The author analyzes the advantages and disadvantages of the three theories according to their theoretical basis by referring to the theory of relevant theories at home and abroad and summarizing the current debate between the current theories.We should pay attention to the difference between the criminal law and civil law when we discuss the crossover problem.On the one hand,it could not because the crime of contract fraud be written into the "criminal law" third chapter of the socialist market economic order,leading to we considered the contract is invalid.Similarly,it cannot be directly considered that the fraud in criminal law is equivalent to the fraud in civil law,and their constitutive requirements of the two are not the same.But if blindly stressed the independence of civil law,is not conducive to the protection of victims and disputes.The author thinks that determination of the effect of contract should emphasis the protection of the legitimate rights and interests of the victim.Through the above analysis,the author points out that the "invalid" theory is not enough to protect the interests of the victim in the face of the complicated legal relationship.And the "effective" theory thinks that the victim must bear the consequences of his own behavior,which is not conducive to the protection of the interests of the victim.The "revocable" theory has gradually become the mainstream theory in foreign countries,Japan and Germany have produced their own theory.The "revocable" recognize that fraud act and contract behavior can be distinguished,and that the contents of the contract does not violate the laws and regulations do not deny the effectiveness of the contract,and the victim should be allowed to cancel the contract.Also,in the protection of the interests of the victims,the "revocable" theory of the most advantages,there will be no protection of the interests of victims of the situation.Then,the paper discusses the existence of legal questions.