| The crime of fraud prescribed in article 266 of the criminal law of China refers to the act of defrauding public or private property of relatively large amount by means of fiction or concealment of the truth for the purpose of illegal possession.The object of the crime of fraud is the ownership of public and private property owned by others.The object of the crime may be a variety of property,personal and immovable property.The objective content of the crime of fraud mainly refers to that the objective behavior adopts the deception method of making up the facts and concealing the truth to make the victim fall into the wrong understanding and take the initiative to deliver the property,thus cheating the public and private property with a relatively large amount.We should focus on the following three aspects: "using deception methods","the victim voluntarily delivering property",and "large amount of fraudulent public and private property".From the perspective of the composition of the crime of fraud,the subjective content,in addition to criminal intent,also requires the key elements of "the purpose of illegal possession".Although Chinese and foreign scholars have not reached a consensus on the definition of civil fraud,the content of the core part is very similar,that is,"deliberately cheat,mislead others,and induce the other party to make the wrong intention to express".China's supreme people's court "about carrying out the several problems(the general principles of the civil law of the People's Republic of China)opinion(try out)" the 68 th regulation: "a party intentionally told each other false information,or deliberately concealing the truth,intention to induce the other party to make errors,can be regarded as fraud." Chinese civil law scholars generally agree with the interpretation of the judicial interpretation of civil fraud.The constitutive elements of civil fraud include: the perpetrator subjectively conducts fraud to the counterpart intentionally;A specific fraud was carried out;As a result of the fraud,the other party fell into a wrong understanding and expressed his intention according to the wrong understanding.At present,the academic circles distinguish the boundaries between the crime of fraud and civil fraud by several main viewpoints,such as "standard of criminal constitution","standard of social harm" and "purpose of illegal possession".Most theoretical studies support "illegal possession for purpose" as the key point to distinguish the crime of fraud and civil fraud.The author agrees with this and agrees to push back subjective intention with objective behavior.In the juridical practice,when distinguishing the crime of fraud and civil fraud,the emphasis is still on the subjective aspect of the actor,"the purpose of illegal possession".But the inner world of man is unknown,and others cannot know it accurately.Therefore,how to determine the subjective content of the doer in the investigation,review and trial activities if the doer does not make an active statement becomes a long term problem to be solved in judicial practice.The crime of fraud and civil fraud of judicial cognizance basis,mainly include the supreme people's court on December 24,1996 issued "on the concrete application of law of fraud cases of interpretation(January 18,2013)has been abolished,released on January 21,2001,the national court work symposium summary financial crime cases,the supreme people's court,the supreme people's procuratorate of April 8,2011," about to handle criminal cases of fraud "the explanation of the concrete application of law,Summary of the symposium on handling cases related to Internet financial crimes released by the supreme people's procuratorate on June 2,2017.The above judicial interpretation of the crime of fraud and financial fraud reflects that the supreme people's court and the supreme people's procuratorate have focused on thesubjective "purpose of illegal possession" in identifying the crime of fraud,and have issued enumerative guidance on how to push back according to the objective facts.The author makes a concrete analysis of four real cases of fraud in judicial practice.Case 1: due to reasons such as guarantee responsibility,bank collection and loan,the actor makes the operating enterprise capital turnover difficult.He counterfeits two real estate property warrants and borrows a sum of RMB 1 million from the victim twice,and then USES the funds to maintain the normal operation of the enterprise and pays the loan interest on schedule.Because the enterprise product market is not good and other reasons can not continue,resulting in the inability to repay the loan crime.Case 2: the actor is a professional loan lender with high interest under the packaging of "small loan company".When providing loans to the victim,he/she has borrowed the amount on the fictitious increase loan agreement and required the victim to sign blank materials needed for the transfer of the vehicle.Later,it is unilaterally determined that the victim constitutes the so-called "breach" and the victim's vehicle is detained for private treatment.Case 3: in the case of "renting a car as a car" fraud,the actor rented the car from the owner of the car,and later borrowed money from the third party by forging the relevant documents of the car.In different cases,the identity of the object of illegal possession of property and the victim is different.Case 4: actor organization relative to the family as the unit,work in groups of every 2,driving a van or pickup in rural areas in order to make sales promotion,through the distribution of small gifts will be weak awareness for the elderly,sell cheap products(15 yuan a mat,selling 150 yuan or 200 yuan),the total amount(sales)reached more than 50000 yuan,7 per capita on suspicion of fraud is involved shall be investigated for criminal responsibility according to law.By studying and analyzing four real cases.The author believes that the judicial determination of the boundary between the crime of fraud and civil fraud should follow the existing judicial interpretation and normative documents,and take the subjective "purpose of illegal possession" as the main difference method while takinginto account the modesty principle of the criminal law.On the one hand,the purpose of illegal possession should be confirmed objectively.On the other hand,we can refer to the enlightenment and thinking brought to the author by four real cases,including: the objective behavior of "making up facts and concealing the truth" should not be used to reverse the subjective intent of illegal possession;It can not be inferred from the subjective intention of illegal possession by causing actual loss to the victim;To grasp the subjective "purpose of illegal possession" from the whole case,we should not only focus on a small time node;In some cases,the social harmfulness of objective behavior can also reflect the subjective "purpose of illegal possession".The three characteristics of the criminal law are complementarity,severity and leniency.Starting from the principle of legality of criminal law and adaptation of criminal responsibility and punishment,if there is not enough evidence to prove the "purpose of illegal possession" of the actor in various stages of criminal proceedings,such as investigation,examination and prosecution,trial,etc.,then the case should be considered in combination with the modesty of the criminal law. |
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