A Study On The Consciousness Of Disposition Of The Crime Of Fraud

In the structure of the crime of fraud,“disposal of property” is the key link,including the objective behavior and the subjective consciousness,among which the consciousness of disposition is an important and difficult issue.This thesis mainly studies the consciousness of disposition in the crime of fraud,including the meaning,structure,necessity and specific content.The definition of the consciousness of disposition can be summed up as the understanding of the aggrieved person to the object of disposition and the change of possession.The structure of disposition consciousness should be built around the essence of the crime of fraud.To be specific,the disposition consciousness is based on normal consciousness ability,false perception caused by deception,disposition authority and free will.The theoretical dispute about the necessity of disposition consciousness includes the theory that disposition consciousness is necessary,the theory that disposition consciousness is unnecessary and the eclecticism.The theory that disposition consciousness is necessary claims that the disposal of property by the victim shall be the unity of subjective consciousness and objective behavior,othervise there is no possibility of fraud.It also claims that this view is conducive to accurately dividing the crime of fraud and theft.The theory that disposition consciousness is unnecessary claims that the victim only needs to transfer the possession objectively,and does notneed to have a subjective understanding of the transfer of property.It also claims that the unconscious disposition behavior can be used as the standard to distinguish the crime of fraud and theft.The eclecticism claims that disposition consciousness is necessary under normal circumstances,but in some special circumstances,the establishment of disposition behavior does not require the victim to have disposition consciousness.For example,when the victim implements the property transfer act of inaction or when the object of disposition is property interest.In some cases involving fraud and theft,the victim is often unaware of the transfer of property and thus lacks the consciousness of disposition.To accurately identify the nature of this kind of behavior,it is vital to clarify whether disposition consciousness is necessary to fraud.According to the theory that disposition consciousness is necessary,which is the mainstream theory in our country,the establishment of the crime of fraud requires the victim to have the consciousness of disposition.Then that kind of behavior cannot constitute the crime of fraud.However,this kind of behavior is indeed very close to the crime of fraud from the appearance.The public on the basis of simple legal passion usually judge this kind of behavior constitute the crime of fraud.In judicial practice,the perpetrator will be investigated for criminal responsibility with the crime of fraud.Thus it can be seen,the mainstream status of the theory has been hit.The author agrees with the theory that disposition consciousness is necessary.In cases of obtaining property or property interests by fraudulent means,the disposition consciousness of the victim is the essential element to recognize the crime of fraud.On the occasion of disposition of property,the theory that disposition consciousness is necessary is more conducive to accurately dividing the line between fraud and theft,especially the indirect principal of larceny.On the other hand,in terms of its own structure,disposition of property is the transfer of possession of property,which should be a unity of subjective and objective facts,as same as possession.On the occasion of disposition of property interests,the theory that disposition consciousness is necessary should also be maintained.Unlike the German and Japanese criminal laws,the object of larceny in our criminal law includes not only property but also property interests.In the case of unconscious disposition of property interests,therewill be no penalty loophole.On the premise of maintaining the theory that disposition consciousness is necessary,whether the perpetrator constitutes the crime of fraud often depends on whether the victim has disposition consciousness.Different interpretations of the content of disposition consciousness will directly affect the determination of disposition consciousness.In terms of this problem,there are two main theories,including strict disposition consciousness view and moderate disposition consciousness view.Strict view claims that the victim should not only have an understanding of the appearance of transfer of property,but also have a comprehensive understanding of the quantity,weight,value,type and other factors of property.Moderate view claims that the victim only needs to have an understanding of the appearance of transfer of property.The author suggests that strict view is too demanding,which causes the crime of fraud is too narrow.Moderate view adopts too loose standards,which causes the scope of fraud crime is too large.Therefore,it is necessary to make reasonable restrictions on the content of disposition consciousness.Only in this way can we keep the balance between the crime of fraud and other property crimes.When analyzing the content of disposition consciousness,the author considers that the disposition of property and property interests have different requirements on the cognition degree of the victim,so the disposition objects are divided into property and property interests for relatively independent analysis.As for the disposition consciousness of property,its content includes two aspects,one is the cognition of the appearance of property transfer,the other is the cognition of the specific content of property.The understanding of the appearance of the delivery of property depends on the elements contained in the objective act of delivering property to others and corresponds to them,including the specific awareness of possession,the understanding of the transfer of possession and the understanding of the counterpart.On the basis of the victim's clear understanding of the appearance of property delivery,the author further studies whether the victim needs to recognize the type,quantity,weight,value and other specific factors of the property.This thesis analyzes theinfluence of misidentification under different circumstances on the determination of disposition consciousness,and then draws conclusions.To sum up,disposition consciousness includes the cognition of the type of property and the weight or quantity of the enclosed and independent packaging property.It does not include the cognition of the value of property and the quantity or weight of goods in bulk.As for the disposition consciousness of property interests,its content includes the cognition of the property interests enjoyed by oneself and the cognition of the transfer of property interests.If the victim expressly waives the claim or cancels the debt,he obviously has the cognition of the transfer of property interests.If the victim has no direct intention to waive the claim or cancel the debt and just agrees to suspend the claim,we can infer whether the victim has realized the transfer of property interests from the perspective of whether the victim has renounced the possibility of realization of claims on the spot.