Study On The Victim's Wrong Cognition In The Crime Of Fraud

The crime of fraud is a kind of interactive crime with deep participation of victims.When determining the establishment of the crime of Fraud,the constituent element of “the victim falls into the wrong cognition” itself plays an important role in connecting the cheating behavior and disposing the property.Once the victim does not fall into the wrong cognition and the causal link is broke,the crime of Fraud cannot be established.However,the traditional theory of Germany,Japan and China ignores the independent element status of “victims fall into wrong cognition”.In judicial practice,the judge's reasoning about if the victim has fallen into the wrong cognition is not thorough.Therefore,this dissertation takes “the victim's wrong cognition” in the crime of Fraud as the research object,introduces the theory of German victim's Creed and so on,changes the criminal law theory tradition which takes the behavior or offender as the center,from the perspective of the victim and the characteristics of the crime of Fraud,using the comparative research method,the case analysis method and so on,analyzing the meaning and standard of “the victim falls into the wrong cognition”,reaffirming its important position in the crime of Fraud.This dissertation is divided into four parts.The first chapter is “The Definition of the Victim's Wrong Cognition in the Crime of Fraud”.Firstly,by introducing the basic concept and connotation of the Victim's Wrong Cognition,the paper expounds the difference between the Fact Cognition Mistake and the Victim's Wrong Cognition,introduces the classification of the Victim's Wrong Cognition,defining the Victim's Wrong Cognition.The Victim's Wrong Cognition refers to the state that the deceived person misread the objective facts due to the fictitious or concealed behavior of the perpetrator,which leads to the inconsistency between deceived person's inner cognition and the fact.According to the type of deception and the victim's prior state,different classifications can be produced.Next,by introducing the theoretical theories and judicial practice tendency of Germany,Japan and China,this paper observes the recognition and position of the traditional theory on the Victim's Wrong Cognition,and points out the main defects of the traditional view: neglecting the independent constituent element status of the Victim's Wrong Cognition,ignoring the role of the victim in the specific crime.The second chapter,“The Judgment of the Victim's Wrong Cognition in the crime of Fraud”,analyzes how to judge whether the victim falls into the wrong understanding in determing the crime of Fraud.This chapter first analyzes the contents of the Victim's Wrong Cognition: the content of the victim's wrong cognition is the fact,which can be the past or the present,but not the future;the content of the wrong cognition should be distinguished from the value judgment or opinion expression,otherwise it can't be judged true or false;For the form of the fact,it can be divided into two kinds: In the case of both parties' delivery,according to the Theory of Legal Interest Relationship,the important matters related to the exchange value of the delivered property are all the contents of wrong cognition.In the unilateral delivery cases,according to the Purpose Failure Theory,only certain social,economic and moral purposes recognized by the social morality belong to the content of wrong cognition.This chapter then analyzes the degree of the Victim's Wrong Cognition,introduces and analyzes the evolution of the victim's creed,and believes that this theory is reasonable because it is consistent with the principle of the final means of criminal law,fully implements the principle of legal interest protection,and helps to realize the reasonable position of the right of selfdetermination on the criminal law paternalism.However,the role of “paternalism” in criminal law can not be changed,and it is necessary to give paternalistic protection to the weak who have no mature judgment ability and are easy to be deceived.In this regard,this paper argues that we should distinguish between the general area of life and speculation,market,investment,illegal areas.People in the former needs a higher degree of criminal protection while people in the latter area shall protected themselves.The third chapter “The Relationship Between the Victim's Wrong Cognition and Other Elements of the Crime of Fraud”,firstly analyzes the relationship and difference between the Victim's Wrong Cognition and the deception.The deception is a reason for the false cognition,and the content of the deception should be related to the false cognition of the property disposal.However,it should be noted that the extent of deception depends on the risk of falling into wrong cognition and disposing of property.What's more,different from deception,the judgment of wrong cognition is a kind of judgment of inner conviction,and what needs to be found out is the actual content of the deceived's inner state,which is a kind of actual judgment.This chapter then analyzes the relationship and difference between the Victim's Wrong Cognition and the disposition,and holds that it is not advisable to directly infer that the perpetrator has made a misperception based on the fact that the victim has disposed of the property.The fourth chapter,“The Judicial Application of the Theory of the Victim's Wrong Cognition in the crime of Fraud”,analyzes the characteristics and application of the theory of the Victim's Wrong Cognition in the four kinds of special Fraud cases.