Research On The Differentiation Between Contract Fraud And Contract Fraud Crime

The construction project security refers to the rights of the parties involved in the construction project contract.At different stages of the construction project,the tendering phase,construction phase,and project defect liability phase,the specific obligor submits to the specific right holder.Debt for money of a specific nature and purpose.The party that receives the construction engineering deposit is the creditor,and the party that pays the construction engineering deposit is the debtor.There are fewer legal provisions in our country regarding the construction engineering margin.Therefore,it shows the characteristics of various types and forms of security deposits in practice.The bidders,bidders,contractors,contractors,judges,prosecutors,lawyers,etc.have different understandings of the construction project deposits,which has caused great controversy in the judicial practice in distinguishing cases.The distinction between the contract fraud and the contract fraud crime has great confusion in practice.Although there are various viewpoints in the theoretical circle,the operability is not strong,and the complexity of the construction engineering margin itself makes it more difficult to distinguish.In this regard,the writing of this article focuses on the following two aspects: The first is a review of existing research.This article starts from the typical case of construction project margin,analyzes the opinions of the three sides of the prosecution,defense and review,and finds that it has problems in identifying "the purpose of illegal possession",and that this problem cannot be solved by using existing research.The second is the specific criteria for determining the "illegal possession purpose" of the construction project margin.Moreover,it is proposed that the judicial presumption should be applied to the procedure first,and then the criteria should be used to comprehensively determine the true and false of the presumption of facts("the purpose of illegal possession").There are three parts in this article except the introduction.The first part: typical case and problem combing.Through the analysis of four different classic cases,the study of different perspectives leads to the object of this study.This paper studies the nature of defrauding construction project deposits,and puts forward the question of how to distinguish the crime of contract fraud and contract fraud and how to determine the purpose of illegal possession.The second part: the review of the research on the boundary between contract fraud and contract fraud crime.First,the basic theory of contract fraud is studied.To sort out the rules and related doctrines of fraud laws at home and abroad,and to propose the definition of contract fraud.Analyze the different points of view of the conditions for the establishment of contract fraud,and affirm the rationality of the“four requirements statement” on the basis of the construction engineering deposit.Second,study the basic theory of contract fraud.To study the source of legislation and analyze the reasons why the crime of contract fraud is independent from the crime of fraud.Combining construction engineering deposits,defining the crime of contract fraud,and analyzing its crime composition from subject,subjective,object,and objective aspects.Finally,an existing study to introduce and evaluate the boundaries between contract fraud and contract fraud is presented.Existing research suggests that the subjective intention of the actor is different from the objective behavior.However,there are deficiencies in the existing research.Although the academic world is still revising old words and intends to put forward new ideas,they are all very similar.The operability of existing research is not strong,and it is even more difficult to apply it to the field of construction engineering.The third part: Qualitative analysis of the behavior of fraudulent construction projects.First of all,grasp the legal nature of the construction project security as the movable property in the pledge guarantee,and put forward the viewpoint that it belongs to the actor and the debtor.Secondly,the “Illegal Possession Purpose”standard for defrauding construction project deposits was proposed.The criteria include the four factors of the authenticity of the project,the subject's qualifications and performance ability of the actor,the actual performance of the actor,the reasons for the actor's non-compliance,and the attitude of the actor.The real performance of the project alone directly determines the “illegal possession purpose” of the actor.The other three factors need comprehensive analysis and judgment,and cannot be determined independently.Finally,judicial presumptions should be used in the recognition process.In addition to the authenticity of the project,if there is an unfavorable fact among the three factors,it can be presumed that the actor has "an illegal possession purpose." At this point,the perpetrator may refute or disprove.If the refutation or counter-evidence is successful,the presumption is false.If refutation or reversal proves to be unsuccessful,it cannot be judged whether the presumed factsare true or false,nor can the perpetrator bear the unfavorable legal consequences.On the basis of presumptive facts,it is necessary to determine whether there is an “illegal possession purpose” by integrating other factors.Using the views of this article,the first part of the four cases were evaluated and a practical evaluation was made.