Research On The Application Of The Catch-all Clause Of Contract Frau

The miscellaneous clause of the crime of contract fraud is helpful to play the social protection function of the criminal law,and can alleviate the contradiction between the stability of the criminal law and the rapid development of the society to a certain ex tent.However,its disadvantages are not small,and increasingly prominent.Because of the vagueness of the legislative language,it violates the principle of the definiteness of criminal law,so how to interpret and apply is still controversial in the academic circle.Hence,a large number of cases of "pocket crime" have appeared in judicial practice.This paper uses the research methods of demonstration,literature and comparison,takes the cases of contract fraud crime in judicial practice in the past ten years as the research object,analyzes and summarizes the problems existing in the application of the contract fraud clause,and puts forward solutions to the problems.Its problems are concentrated as follows:At first,the classification information of criminal law article enumeration behavior is insufficient,so that the homogenous interpretation method gradually shows its own shortcomings.Secondly,The omission and lag of judicial interpretation make judicial personnel lack of specific and operable judicial document guidance;When applying this clause,some judicial personnel ignore the particularity of market transaction contract and do not comprehensively consider the normative protection purpose of criminal law,the purpose of transaction behavior,transaction efficiency and market risk and other factors.Thirdly,Judicial personnel often ignore the provisions of the pre-law,directly intervene in civil disputes with the contract fraud crime cover clause,the normal market transaction behavior into the scope of contract fraud crime,so that the disputes that should be solved through civil and commercial law are identified as economic crimes,destroy the normal economic flow and transaction order.In the face of these problems,we should follow the following solutions.At first,it is necessary to respect the provisions of the prior law on adjusting the facts of a case.All cases that can effectively solve disputes through the front department law should not directly use the contract fraud crime cover clause,Secondly,it is necessary to fully consider the amount of profit pursued by market transaction subjects,the amount of transaction costs and the proportion of transaction risks to comprehensively consider whether to use contract fraud crime cover clause.At last,in the interpretation of the rules of the pocket clause,the substantive interpretation theory should be used to explain whether the facts of the case are consistent with the elements of the crime from the perspective of the necessity and rationality of punishment.We should resolutely exclude from the crime of contract fraud those acts which are in line with the constitutive requirements of the crime in external form,but do not have the substance of legal interest infringement,or the amount of legal interest infringement is not large,and thus do not deserve to use penalty.