The Advocacy Of "The Theory Of The Dupe's Behavior" In The Crime Of Fraud

The general theory of criminal law believes that,the first "disposition awareness"is indispensable in the construction of the crime of fraud;the second "disposition awareness" is one of the essential elements of the "disposition behavior";the third the disposition behavior including the disposition awareness is the key to distinguishing between fraud and theft.Recently,with the development of the Internet and the popularization of new payment methods,this kind of general viewpoint is facing more and more challenges,and many disputes have arisen around it.The focus of the related disputes are:whether the disposition awareness is necessary for the disposition behavior,how to understand the content of the disposition awareness,whether the necessity of disposition awareness should be identified differently,and whether the disposition behavior needs to reach the degree of transferring holding,occupation or ownership.After analyzing the above four disputes,the flaws of "necessary disposition awareness"surface naturally.First of all,It is difficult to draw proper conclusions in the context of property interests with "necessary disposition awareness".Secondly,advocates of"necessary disposition awareness" have different viewpoints about the content of the disposition awareness.and it lacks the corresponding scientific basis.Therefore,this article believes that "unnecessary disposition awareness" is a more reasonable theory,and it is also the basic standpoint held by this article.Throughout the various theories on the crime of fraud in China,from the "two-element theory" to the "five-element theory",the "four-element theory" and "five-element theory" are currently more mainstream.These two theories unanimously treat"disposition behavior" as the core content,and believe that "disposition behavior" is an essential element of the crime of fraud.For this,this article basically considers it reasonable.However,jurisprudence considers "awareness" as one of the basic characteristics of "legal behavior".That is,"legal behavior" is the unification of human subjective will and objective behavior.Civil law theory also considers that "meaning expression" is one of the essential elements of "legal behavior",and "disposition behavior" as a sub-concept of "legal behavior" should also have the "meaning expression" element.Therefore,even though it is acknowledged that criminal law can give connotation of disposition behavior different from civil law,at least it cannot separate the awareness from behavior.This practice is also deeply criticized by advocates of "necessary disposition awareness".In response to this question,there is a scholar advocating that replace "disposition behavior" with "delivery behavior",and he fully demonstrating that "delivery behavior" can exist without "delivery awareness".This article believes that the "delivery behavior theory" also has three defects:the first,this theory cannot be applied to the occasion of property interests;the second,this theory cannot be applied to the real estate occasion,and the third,delivery behavior cannot include abandonment behavior.From this point of view,advocates of"unnecessary disposition awareness" have not responded well to the above-mentioned doubts.In order to ensure the uniformity of the legal order and the rigor of legal terms,this article considers that it is reasonable to replace the "disposition behavior" with"dupe's behavior".On the whole,the theory of the dupe's behavior advocated in this article is essentially based on the basic standpoint of "unnecessary disposition awareness",and further improve the "necessary disposition behavior".The exact definition of the dupe's behavior is an act,tolerance or inaction basing on a misconception that can directly cause property deprivation without further action by the perpetrator "Self-damaging crime" is the theoretical basis of the dupe's behavior theory.The four elements of the dupe,causality,voluntary,and directness are the core elements of the dupe's behavior.The dupe element include qualifications and scope.Regarding the qualification of the dupe,a judgment method of "objective authority theory" should be adopted to distinguish the triangle fraud from indirect principal of theft.Regarding the scope of the dupe,it should be recognized that "robots" such as ATM machines and vending machines can become the proper dupe.When a member of the shareholder meeting or the board of directors of a legal person is deceived,we recognize that the "legal person" is a proper dupe.And mental patients with limited liability capacity and mental patients with full liability capacity are qualified dupes.In criminal law theory,a infant can form the occupation in criminal law theory is also the proper dupe.The connotation of the causality element is that the dupe implementing a behavior based on misunderstanding.It is to ensure the continuity of causality.The connotation of the voluntary element is that the dupe is voluntary rather than forced to implement a behavior.It is to distinguish the crime of extortion.The connotation of the directness element is that the dupe's behavior directly causing the result of property impairment.It plays a role of ensuring "attribution" as well as the causality element.From this perspective,the behavioral structure of the crime of fraud is the process of"attribution" to "blame",that is,the deceit of the perpetrator creates the risk that the victim may perform acts that harm his own interest based on the deception,and realized this risk objectively.After satisfying the "closed" behavioral structure of the crime of fraud,this result can be attributed to the behavior of the perpetrator.