On The Disciplinary Consciousness In The Crime Of Fraud

The fraud is the most common property crime in our daily life.Both the fraud and the larceny are stipulated in the fifth chapter of China's current criminal law.The two crimes are not confused in general.But in some cases of theft and fraud,there is both theft and the use of fraud.Thus,the two crimes will be difficult to distinguish in this situation.The main reason is that there is a big theoretical difference on whether the disciplinary consciousness in the crime of fraud is necessary or not.From the constitutive requirements of theft and fraud,the larceny is against the will of victim on the transfer of occupancy,and the crime of fraud is based on the meaning of the victim on the transfer of occupancy.Fraud and theft are not identical for the objective elements.Thus they are in opposition and there is no possibility of competition.Therefore,the disciplinary consciousness as the heart element of act of disposition,has the vital significance to distinguish between larceny and fraud.If we deny the disciplinary consciousness in the fraud,the fraud of essential characteristics can't be reflected.The recognition of disposition consciousness should be judged according to its form and substance.In terms of form elements,the disposer should have the ability of meaning,the power of punishment,the will of inner freedom and the basis of cognitive error.In terms of essential elements,the actor should realize that he possess the property and realize that the property has been transferred.The constitutive elements of the fraud are not equal to the meaning of "fraud" in the minds of ordinary people.Disciplinary Consciousness is an important part of the constitutive elements of the crime of fraud.In the qualitative process of mixed theft and fraud,if the victim does not have the disciplinary consciousness,the offender should be identified as a crime of fraud rather than a crime of theft.