The Expansion And Introspection Of The Qualitative Problems Of The Intertwined Cases Of Fraud And Theft

The intertwined case of theft and fraud refers to the case in which theft and fraud interact and jointly contribute to the result of crime.In recent years,With the rapid development of network technology,the way of payment has developed from cash payment to network payment mode such as We Chat and Alipay.With the increase of online transactions,there are a large number of cases interwoven with theft and fraud in real life,which brings difficulties to the judicial practice of how to convict.Therefore,this paper makes it clearly about the related theories,analyzes the model cases interwoven with theft and fraud,discusses the deep legal principle of the qualitative cases,and puts forward some suggestions on how to convict specific cases.This paper is composed of four parts,the primary coverage is as follows.In the world of experience,people tend to understand crime through punishment.The justification of punishment advocates retribution as the main and prevention as the auxiliary.The degree of punishment is determined by the illegal behavior and responsibility.One behavior violates the crime of theft and fraud at the same time.Both of them are intentional crimes and the degree of responsibility is basically the same.The severity of penalty is basically determined by the degree of violation of the law.In accomplished cases,the degree of illegality depends on the causal force of the crime on the outcome.The difference in the nature of theft and fraud implies the difference in the causative force of the result.Theft is the result can be formed by one actor without value.The actor has all the "physical causality" for the occurrence of the result,and the result belongs to the actor.Fraud is the result that can not be formed by one actor without value,and the victim has "physical causality" for the formation of the result.The victim is "responsible" in the criminal law.The way that law evaluates the victim’s responsibility is not directly bestowed on the victim,but reflected by the corresponding reduction of the actor’s responsibility.If the victim is responsible,the perpetrator will commit fraud;if the victim is not responsible,the perpetrator will commit theft.In the crime of fraud,the victim’s liability is caused by his improper "disposition".The victim is conscious subjectively and the victim is aware that he is disposing of financial affairs.The victim’s consciousness includes the consciousness of property existence,the consciousness of property possession and the consciousness of possession transfer.In the crime of fraud,the cheated person has the responsibility.In the crime of fraud,the victim is responsible for the damage result.The subjective responsibility is negligence in general,and negligence or overconfidence in particular.The whole crime is accomplished,and the actor bears the accomplished responsibility.In special cases,the cheated person "helps" the actor to complete the crime based on a specific mentality,and the subjective responsibility is intentional,the whole crime is accomplished,the actor bears the attempted responsibility at most,and the cheated person bears the accomplished responsibility."Triangle fraud" and "indirect principal of theft" are typical patterns in the cases of intertwined theft and fraud.As for the distinction between the two,traditional theories take "whether the victim agrees or not" as the dividing standard.The exclusive decision of individual will,except for the explicit authorization,the third party’s delivery behavior can not meet the "victim’s consent" in the legal level,and the "victim’s consent" can not be consistent.According to the sanction authority of the intermediary,the behavior of the actor can be divided into triangle fraud and indirect principal of theft.When the intermediary has the authority to dispose,the actor has committed fraud to the intermediary,and the actor has a triangular relationship with the intermediary and the victim;when the intermediary has no authority to dispose,the intermediary acts as a tool,the intermediary effect belongs to the actor,who is the indirect principal offender.In the indirect principal criminal behavior,theft and fraud are also interwoven,and their effect on the result can not be distinguished.According to the principle of penalty,we choose a felony punishment,theft is more serious than fraud,therefore,it is defined as theft,and the actor is the indirect principal of theft."The existence of punishment consciousness" is the key to distinguish the cases of theft and fraud according to the doctrine that disciplinary awareness is necessary、unnecessary or compromising.The three theories all have their own contradictions.the doctrine that disciplinary awareness is necessary is relatively reasonable,but scholars who hold this theory have not explained why the existence of punishment consciousness is the reason for the establishment of fraud cases.The emergence of punishment consciousness proves the importance of deception in the case.The leading role of deception in the result makes the case undoubtedly defined as fraud rather than theft.In the interlaced cases of theft and fraud,the two appear in different time sequence.One part is dominated by theft,supplemented by fraud,and the other is theft and fraud supplement each other.Although the qualitative principles are different,the results are the same,and the conclusions are all theft.Both the pure subjective attempt theory and the objective attempt theory are biased.From the thinking approach of the objective attempt theory,the revised objective attempt theory is developed.In the revised theory of objective attempt,the objective elements are still the main content of illegality,while absorbing subjective elements at the same time,including intention,purpose and so on.It gives consideration to the behavior and the result,and does not exclude the subjective aspects.In fact,it is the explanation of the theory of Behavior Invaluable Dualism in the field of attempt theory.Attempted crime is a special form of accomplished crime,and its nature should also conform to the basic theory of the nature of accomplished crime,that is,the force of action on the result should also be examined.According to the thinking system of Behavior Invaluable Dualism,the behavior characteristics are taken as the evaluation criteria,the behavior that plays a leading and core role in the possible occurrence of the result should be determined.