The Cognizance Rules Of Property Loss In The Crime Of Fraud

Article 266 of the criminal law of our country only stipulates "defrauding public or private property,the amount is large",and does not make clear whether "property loss" is an objective constituent element of the crime of fraud in legislation.In the first part of this paper,on the basis of introducing the necessary theory of property loss and the unnecessary theory of property loss,it explains the rationality of the general theory of our country that property loss belongs to the constituent elements of the crime of fraud.Then,it cites several controversial cases in practice,and further demonstrates the necessity of studying the rules of determining the property loss of fraud.In the second part of this paper,based on the comparative analysis of the judgment path of property loss,such as the overall property theory and the individual property theory,it is concluded that the revised overall property theory is more in line with China’s actual situation.This paper argues that under the guidance of the revised overall property theory,from qualitative to quantitative,we should identify the property loss of the crime of fraud.Among them,the qualitative is mainly to solve the problem of whether the property loss is tenable,while the quantitative is to solve the problem of calculating the amount of property loss.The third part of this paper focuses on the qualitative analysis of property loss.When determining whether property loss is tenable,we should follow the second-order order of measuring the economic value first,and then considering the subjective purpose of the victim.The subjective purpose is divided into personal transaction purpose and social purpose.The corresponding types of fraud are transaction fraud and donation subsidy fraud.Specifically,in the bilateral transaction fraud,no matter whether the total amount of objective property is reduced or not after the economic value is measured,as long as the transaction is in line with the victim’s personal transaction purpose,the property loss will not be established.At the same time,according to the theory of personal property loss,when the total amount of objective property is not reduced,but according to the judgment of the objective third party,the actor’s objection to payment is not in line with the victim’s personal transaction purpose,and there is no possibility of resale,the property loss is established.In the donation subsidy fraud,the purpose failure theory is used to consider the social purpose beyond the purpose of individual transaction.If the victim’s social purpose fails,the property loss is established.If the property loss is confirmed after the analysis of this part,it will enter into the calculation of the amount of property loss,that is,the quantitative part.The fourth part of this paper discusses the quantitative analysis of property loss,which mainly solves the problems of donation and subsidy fraud,the situation of opposing payment in bilateral transaction fraud,and the calculation of the amount of fraud in serial fraud cases.Among them,the latter two are the focus of discussion.In the type of donation and subsidy fraud,the amount of fraud is the amount of property of the victim whose social purpose fails.In the case of bilateral transaction fraud,the research focuses on the calculation of the amount of fraud when the actor opposes payment.Guided by the revised whole property theory,this paper lists several situations in which the amount of anti payment should be deducted from the amount of fraud: anti payment is a general equivalent,the part of anti payment conforms to the victim’s personal transaction purpose(that is,the amount of anti payment is insufficient,the anti payment has the possibility of resale),At the same time,it also puts forward the corresponding solutions to the situation that the amount of objection payment cannot be calculated.In the case of serial fraud,this paper proposes to deal with it separately: the object of fraud is the same victim’s serial fraud,the amount of fraud should be calculated as a whole,and the amount returned by the perpetrator before the crime is deducted from the amount of fraud;The target of fraud is the serial fraud of different victims.In principle,the determination of the amount of fraud should take the time of the act as the node to calculate the total amount of fraud,regardless of whether the perpetrator has returned the victim’s property before the crime;But for fund-raising fraud,the determination of the amount of fraud can be postponed to the time before the crime,and the amount of fraud can be calculated as a whole,and the amount returned by the perpetrator before the crime can be deducted from the amount of fraud.The essence of the determination rules of property loss in the crime of fraud advocated in this paper is the determination rules from qualitative to quantitative.After the conclusion of property loss is established qualitatively,the amount of fraud is calculated quantitatively,which is the return of objective property loss after the subjective thinking of property loss.