Research On The Recognition Of Fraud Crime In Commercial Contracts

The existence and development of market economy makes the crime of contract fraud,loan fraud,insurance fraud and other commercial contract fraud crimes exist for a long time and are still in a high trend.However,the discussion of the crime of such cases and non-crime,what kind of crime is still not stop,these fraud crimes are different from ordinary fraud crime is that they occur in the commercial field,is covered with a veil of commercial,in the process of identification,still use the method of the subjective purpose of the identification of ordinary fraud crime is slightly stretched,in the study of the legal provisions After,judicial interpretation and scholars’ views,it is found that there is room for research on this issue.In addition to the introduction,the body is divided into three chapters,the introduction and the body of a total of about 58,000 words:Chapter Ⅰ : The Extension and Characteristics of The Crime of Commercial Contract FraudThis chapter,on the basis of clarifying the connotation and extension of commercial contract fraud crime,reveals that commercial contract fraud crime is different from the characteristics of general fraud crime.First of all,it is clear:commercial contract fraud refers to the fraud crime of using commercial contract in the commercial field,in which the commercial contract refers to the contract between the commercial subject sittamongs and the commercial subject and the noncommercial subject for the purpose of commercial transactions,which is different from the ordinary civil contract.Commercial contract fraud crime includes contract fraud and financial fraud crime(which subdivides the crime of fund-raising fraud and other eight crimes),it is generally believed that the crime of financial fraud and contract fraud are special and general relations.The crime of commercial contract fraud is the same as the ordinary fraud crime,subjectively has the purpose of illegal possession.Secondly,it is clear: the crime of commercial contract fraud has three characteristics that distinguish it from the ordinary fraud crime.One is the characteristic of the field of occurrence-it happens in the commercial field.Second,the characteristics of fraud means-the use of commercial contracts for fraud,commercial contracts are the perpetrators of fraud tools.Third,the characteristics of the object of infringement-both the violation of property ownership(the same as the crime of ordinary fraud),but also the violation of the national market economic order(which is different from the crime of ordinary fraud).Chapter Ⅱ: The Focus of the Identification of Commercial Contract Fraud And the Proof Requirements for the Purpose of Illegal PossessionThis chapter,on the basis of explaining that "illegal possession purpose" is the status of the criminal determination of commercial contract fraud,further explains the general requirements and special requirements of the criminal ity of "illegal possession" in the crime of commercial contract fraud.The study holds that the connotation of "illegal possession purpose" is that the perpetrator permanently excludes the lawful possession of others by means of his own or the third person’s ownership,which is a psychological fact.In the identification of commercial contract fraud,the identification of "illegal possession purpose" is the focus issue,which has a particularly important position.As with other facts,the identification of the "illegal possession purpose" of commercial contract fraud crime needs to meet the criterion of "excluding reasonable doubt",and to achieve this standard,it needs to conform to the commercial law and embed commercial thinking,which is the special requirement for the determination of "illegal possession purpose" of commercial contract fraud crime.At present,there are three more tangled problems in the theoretical and judicial circles for the identification of the illegal possession purpose of commercial contract fraud crime,one is the determination of the time of the illegal possession purpose,the other is the determination of the relationship between the purpose of illegal possession and the act of fraud,and the third is the determination of the purpose of illegal possession and the non-return and relationship.Only by embedding commercial thinking can we solve these three problems.At present,some cases in the administration of justice are questioned by the society because of the neglect of commercial particularity,lack of commercial thinking,so that it cannot "exclude reasonable doubt".Chapter Ⅲ: The Construction of the Method of Determining the Purpose of Illegal Possession of Commercial Contract Fraud CrimeOn the basis of the second chapter,this chapter aims to put forward its own new ideas and judicial improvement opinions on the identification of the crime of "illegal possession" of commercial contract fraud.Firstly,it analyzes the current method of determining the purpose of illegal possession in the crime of ordinary fraud,and points out that the determination of "illegal possession purpose" of ordinary fraud crime is a single positive presumption method.This method is feasible in dealing with ordinary fraud crime,but there are shortcomings in the identification of the illegal possession purpose of commercial contract fraud crime.At present,the relevant judicial interpretation and theoretical research on the purpose of illegal possession of commercial contract fraud crime in China actually have the disadvantages of single positive presumption,which is not fully adapted to the determination of the illegal possession purpose of commercial contract fraud crime.Then,the new method of determining the illegal possession of commercial contract fraud crime is put forward-to the two-way determination method of "positive presumption and anti-proof exclusion".Finally,on the basis of reflecting on the current method,put forward its own specific opinions on judicial improvement: First,on the entity to fund-raising fraud crime illegal possession of the purpose of the identification as an example to build a corresponding standard of counter-examination with judicial interpretation,and second,procedurally put forward a perfect defense opinion response system(including the complete recording system of defense opinions,the establishment of defense opinions ".Not adopted" the justification system and the system of correction of defence opinions).The possible innovations and shortcomings in this article:What may be innovative about this article is that,First,different methods that have discussed the purpose of illegal possession of the crime of general fraud with the purpose of illegal possession of the crime of commercial contract fraud,and the "illegal possession purpose" of the crime of commercial contract fraud are separated from the "illegal possession purpose" of the general fraud crime,highlighting its particularity.Secondly,it puts forward the idea of determining the illegal possession purpose different from the general fraud crime,advocates the use of commercial vision and commercial characteristics to analyze the determination of the "illegal occupation purpose" of commercial contract fraud crime,and puts forward the corresponding new method of identification-the two-way determination method of "positive presumption and anti-proof exclusion" and the counter-examination standard corresponding to the positive presumption standard.The article also has many shortcomings,limited by their own professional level,first of all,in the theoretical analysis is inevitably shallow.The expression of related theories in the text is not concise,direct and profound enough,and it also fails to grasp all the existing theories in a comprehensive manner.Second,the analysis of the case is not comprehensive enough.Analysis and discussion will also have onesided,content is not perfect,the views put forward and the lack of practical testing.