On The Judicial Determination Of Property Loss In China’s Crime Of Fraud

It has become an unwritten practice to choose the "five elements theory" in the judicial practice of the constitutive elements theory of the crime of fraud in our country.In our country about the cognizance of the crime of fraud of the attitude of "restraint" attitude,and with many foreign countries standards,theory discussion,always can vary wildly,but combining to the actual situation,but there are many differences,reality is constantly changing,the case differ in thousands ways,the concept of property and we usually use illegal possession for the purpose of subjective elements on the punishment and the effect of reasonable specification range to little effect."Property" and "loss" should be made substantive evaluation.In this paper,by introducing the real cases in the judicial practice in China,clear about other interests in the judicial practice case,illegal reason payment situation,about the prohibited item,and exempt from illegal debt situations whether there is a "property" in the crime of fraud,combined with relevant theory of "property" in the theoretical circle both at home and abroad to discuss,from the actual situation of disputes arise,this paper argues that the legal property,economic property and economic property law said can’t practice of China’s judicial practice to do an accurate reading,but through the case as you can see,the more appropriate "economic property" in our country,but to say there are expanding the scope of the punishment.In order to solve the lack of theoretical support for judicial practice,combining with practical cases,this paper puts forward the theory of "economic property theory in line with China’s national conditions",which can more accurately explain the practice.In this paper,the "loss" has carried on the substantive judgment,and enumerates the 2 payment and the payment of two types of practice case,found that the judgment of "damage" from the judicial practice in our country,in fact is done to the property of the victims spending and get the integrity evaluation after the conclusion of "loss",namely,Chinese prefer to adopt "overall property",and the corresponding individual property said there are inconsistent with the crime of fraud protection benefits the,intrinsic logical contradiction.On individual property said criticism of the overall property said only from objectively to judgment of "loss",therefore can appear flaw defects in judicial cognizance,based on the difference between traditional said only consider the objective aspect of the overall property,this paper argues that shall conduct improvement,think that should be in terms of objective evaluation after we do think there is no damage to property,so we’ll see subjective aspect,whether there is any loss to the family two aspects of objective evaluation.By analyzing the practices in China’s judicial practice and applying the economic property theory in line with the national conditions and the overall property theory in line with China’s judicial practice,it is found that the specific judicial confirmation behavior can be well interpreted.