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"Purpose Of Illegal Possession" In Judicial Determination Of Crime Of Contract Fraud

Posted on:2021-05-11Degree:MasterType:Thesis
Country:ChinaCandidate:Y Q LiFull Text:PDF
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According to the "China Judgements Online",From 2017 to 2019,the proportion of contract fraud in the first-instance trial in China has been decreasing year by year,they were 15.6%,14.5% and 12%.Judging from the quantity,the crime of contract fraud has indeed decreased,but it is not obvious enough.The number of contract fraud crimes in 2019 nearly quadrupled from 2013,to more than 5,000.In a word,in recent years,among the crimes of fraud,contract fraud is still one of the crimes with the highest application rate and the largest number,and it is also one of the most controversial crimes in judicial practice.From famous scholars in our country,meanwhile,a recent articles published in core journals form,often combined with specific case analysis,illustrate the legal research at present in China the wind changed,started by the previous policy orientation of law and legislative orientation of law to the law of judicial orientation.That is to say,the study of law is gradually slam the door out of the pure theoretical research of the judiciary and abstract.In the author's eyes,the law itself is to serve the social life,and the study of law cannot be separated from practice.Therefore,the author will also take the case of Lin's as an example to analyze the difficult problems in "illegal possession for the purpose" of the crime of contract fraud in judicial practice.The dispute focus of the case of Lin's as below: 1.Whether the defendant Lin has the purpose of illegal possession;2.Whether the defendant Lin has committed Fraud;3.Whether the "victim" of this case has suffered actual losses.On these issues,Defense Lawyer and Public Prosecution had a big dispute on Court Debate.The Defense Lawyer believes that Lin's behavior before transferring the paper products constitutes the Crime of Encroachment,and his behavior of signing a loan contract with a third party by setting a pledge of the paper products is an unpunishable behavior afterwards.But he also believes Lin conforms "Bona fide acquisition system" on the issue of "Whether the third party is actually injured".Its implied logic itself is that Lin did not actually dispose of the paper involved in the case,so Lin's former behavior naturally cannot constitute the Crime of Encroachment.The public prosecution organ thinks,Lin is in sign with the third party,perform loan contract in the process,have the purpose of illegal possession,know clearly it's have the ability that does not fulfil contract obligation,still pass fictitious fact,the way that concealing the truth swindle property of the other party,the sums involved are huge,so Lin commit the Crime of Contract Fraud.By studying the current laws and regulations,judicial interpretation and legal theory,and combining with the relevant guidance cases of the supreme people's court,conclude that Lin has the purpose of illegal possession and meets all the constituent requirements of contract fraud through his factual behavior,so as to thought that Lin committed the Crime of Contract Fraud.
Keywords/Search Tags:Contract Fraud, The Purpose of Illegal Possession, The Fraud, The Actual Damage
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