Stop chatting and get to the point.
In China's criminal law, there are many clauses involving fraud. Such as financial fraud, including fund-raising fraud, loan fraud, bill fraud, insurance fraud and so on. In addition, there is the crime of contract fraud. This series focuses on the crime of fraud in Article 266 of the Criminal Law.
Article 266 of the Criminal Law of People's Republic of China (PRC). Whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.
The above are the specific provisions of the criminal law. As you can see, it's simple. In short, this clause stipulates that the amount of fraudulent public and private property is relatively large, less than 3 years ...; If the amount is huge or there are other serious circumstances, 3- 10 years; If the amount is especially huge or there are other particularly serious circumstances, 10 years or more or indefinitely. At the same time, property punishment (and fine, the last file may confiscate property).
We will analyze the serious or especially serious situations such as large amount, huge amount and especially huge amount in the future.
The most important thing in this clause is the word "swindling public or private property". Public and private property is easy to understand, simply understood as public and private property. Among these six words, the word "fraud" is the most difficult to understand and the most controversial. What is fraud in the sense of criminal law? Or professionally speaking, what are the elements of fraud?
There are different opinions about what is the crime of fraud in the sense of criminal law. Lawyers believe that the most accurate statement is that "(the criminal suspect) uses fictional facts or conceals the truth for the purpose of illegal possession, so that the victim can dispose of his property based on wrong cognition."
As can be seen from the above very accurate description, judging whether it constitutes a crime of fraud depends not only on the behavior of the suspect, but also on the behavior of the victim. There are two points to judge the suspect: first, whether it is for the purpose of illegal possession (whether it directly takes other people's property for yourself); Second, whether there are fictional facts or concealing the truth (whether there are cheaters). One thing about judging the victim is that the victim's disposal of his property is based on wrong cognition (the victim gave the property to the suspect because he was cheated).
Basically, in all fraud cases, judges should judge according to these three points, and defenders (lawyers) should also argue according to these three points. But in fact, many judges or defenders are limited to the first two points, that is, to see whether the suspect has the purpose of illegal possession and whether there is an act of fabricating facts to conceal the truth. The lawyer thinks this is wrong and lacking. Why I think it is wrong will be mentioned below.
(a) whether for the purpose of illegal possession.
Whether the suspect has the purpose of illegal possession, in layman's terms, whether the suspect wants to take other people's property for himself is actually a subjective judgment. Subjective thoughts are difficult to judge. For example, if someone tells you that I miss you, it is difficult for you to know exactly whether he or she is telling the truth or fooling you. You can only judge that the other person is fooling you by his own feelings or his objective behavior. Of course, cognition is likely to be biased. On the legal level, the identification of other people's subjective thoughts must be identified through his objective behavior. There is a very classic small case that can illustrate this problem well.
A man was shopping in a street with a stack of counterfeit money of 100 yuan. I bought a bottle of coke in the first store and gave it to the shopkeeper, who asked me for 95 yuan. A few minutes later, I bought a box of chewing gum in the second store and gave it to the owner 100 yuan. The shopkeeper asked him for 90 yuan. Then he bought a box of cigarettes in the third store and gave it to the shopkeeper, who asked him for 80 yuan. After passing several stores, he was arrested after being seen by the police. It is easy for everyone to make a judgment on whether this person "intentionally" uses counterfeit money. This person can explain that I didn't know I was holding counterfeit money, just shopping normally. But this statement is difficult to explain its behavior. If you don't know it's counterfeit, why not buy it all in one store? Even if you just want to buy it in different stores, after the first store runs out of money, subsequent stores can buy it with small change. Why use the whole money? Such behavior is easy for everyone to judge that it is "intentional" to use counterfeit money. In this case, whether it is "intentional" is a judgment against subjective thoughts. Based on this person's behavior, everyone can judge that he is "intentional". If it is an actual case, the defender must not argue on such a lost detail, and should find other arguments.
Regarding the crime of fraud, I think the reason is the same whether the suspect aims at illegal possession or not. Since we want to believe that the suspect has the purpose of illegal possession, the public prosecutor (prosecutor) should give evidence based on the objective behavior of the suspect. For example, after making up reasons to withdraw money, WeChat blacked out, can it be considered as "for the purpose of illegal possession"? I don't think so. Wechat has been hacked and the phone can still be contacted. If WeChat and the phone are hacked, can it be considered as "for the purpose of illegal possession"? My lawyer doesn't think so. If you know where you live, where you work and where you move when you give money, it's easy to find it. You can't say that. (Subsequent case analysis will refer to the corresponding judicial interpretation)
This is actually the most controversial point in the actual case, and it is easy to form a good argument. Some people cheat money and don't want to pay it back, while others don't want to cheat money and not pay it back. They just want to use it first and return it slowly after use. In criminal offences, we should pay attention to the adaptation of guilt and punishment. Simply put, it is what you have done and what kind of consequences you have to bear. People don't want to do such a thing and let people bear such serious consequences; Or do something very light and make people bear very serious consequences, which is inappropriate and does not conform to the spirit of the rule of law.
(2) Whether there is any act of fiction or concealment of the truth.
It is actually very easy to prove whether there is a fictional fact or to conceal the truth. Just look at how the two communicated at that time and see if there is any other evidence to prove it. This is an objective fact, which can be proved with sufficient evidence, and cannot be proved without reasonable doubt. I will analyze it again when I meet it later.
(3) The victim disposes of his property based on wrong cognition.
Defenders believe that it is very important for the victim to dispose of his property based on the fraud and misunderstanding of the criminal suspect. In practice, this point is often ignored by judges or peers. Some people may not understand this expression. In other words, I lied to you, but you may not give me money because I lied to you. If so, my lawyer thinks that the suspect's crime of fraud cannot be regarded as accomplished.
For example, a handsome guy (beauty) seriously lied to a middle-aged and elderly person of the opposite sex, saying that I am Qin Shihuang (or Wu Zetian or something like that), and I will give you whatever you give me until now. When middle-aged and elderly people know the opposite sex, their inner OS is "stupid X". But at first glance, the handsome guy (beauty) looks good, empty, bored, lonely and indifferent, so play with him (her) in Doby. Just a little money. Here you are. There are many similar situations. The essence is that the "victim" gave the suspect money not because he was cheated, but for other purposes. In this case, can it be considered that the crime of fraud has been accomplished? Our lawyer doesn't think so.
This point is easy to be ignored in practice, but it is also easy to form an argument.
This sharing is over, to be continued.