2. The composition of the crime
(1) Object elements
The object of this crime is the ownership of public and private property. Although some criminal activities also use some deceptive methods and even pursue some illegal economic interests, they are not or are not limited to the ownership of public and private property. So it does not constitute fraud. For example, abducting women and children is a crime that violates personal rights.
The object of the crime of fraud is limited to the property of the state, collective or individual, and other illegal benefits are not allowed. Its target should also exclude loans from financial institutions. Because this law has specifically stipulated the crime of loan fraud in Article 193.
(B) Objective factors
The objective manifestation of this crime is the use of fraud methods to defraud a large amount of public and private property. First of all, the perpetrator committed fraud, which includes two forms: one is fabricating facts, and the other is concealing the truth; in essence, it is an act that causes the victim to fall into a wrong understanding. The content of fraud is that under specific circumstances, the victim will have a wrong understanding and make the property disposition that the perpetrator wants. Therefore, whether it is fiction or concealment of past facts, present facts or future facts, as long as it has the above content, it is fraud. If the fraudulent content does not cause them to dispose of their property, it is not a fraudulent act. Fraud must reach the point where ordinary people can have misunderstandings and exaggerate the goods they sell. If it is not beyond the tolerance of society, it is not considered a fraud. There are no restrictions on the means and methods of fraud, which can be verbal fraud or behavioral fraud; fraud itself can be an act or an omission, that is, there is an obligation to inform a certain fact, but failure to fulfill this obligation puts the other party in a trap. If a person has a misunderstanding or continues to fall into a misunderstanding, and the perpetrator takes advantage of this misunderstanding to obtain property, it is also considered fraud. According to the provisions of Article 300 of this Law, anyone who organizes or uses religious sects or cult organizations or uses superstition to defraud property shall be punished for the crime of fraud.
Fraud causes the other party to have a wrong understanding, which is caused by the perpetrator's fraud; even if the other party has some errors in judgment, it does not prevent the establishment of the fraud. Between the fraud and the other party's disposal of property, the other party's misunderstanding needs to be introduced; if the other party disposes of property due to fraud without causing misunderstanding, it does not constitute a crime of fraud. The other party to the fraud does not need to be the owner or possessor of the property as long as he or she has the authority or status to dispose of the property. The act of a perpetrator filing a civil lawsuit by providing false statements and false evidence to get the court to make a judgment in his favor, thereby obtaining property, is called litigation fraud and constitutes the crime of fraud.
The crime of fraud requires the victim to dispose of property after falling into a wrong understanding, including disposal behavior and disposal awareness. This requirement is to distinguish fraud from theft. The disposal of property is expressed by directly delivering the property, or promising the perpetrator to obtain the property, or promising to transfer the property interests. If the perpetrator commits fraud and causes others to give up their property, and the perpetrator finds the property, he should also be punished for the crime of fraud. However, the act of inserting a piece of metal similar to a coin into a vending machine to obtain the goods in the vending machine does not constitute a crime of fraud, but only a crime of theft.
After the victim disposed of the property by fraudulent means, the perpetrator obtained the property, thereby damaging the victim's property. According to this article, it is a crime to defraud public or private property in a relatively large amount. According to relevant judicial interpretations, if the amount of fraud is relatively large, it starts from 2,000 yuan. But this does not mean that attempted fraud does not constitute a crime. If the fraud is attempted and the circumstances are serious, he should also be convicted and punished in accordance with the law. What needs to be studied is whether the perpetrator uses fraudulent methods to defraud property and at the same time pays for items of equivalent value, whether this constitutes a crime of fraud. Some people think that the damage caused by fraud refers to the reduction of the victim's overall property, so the above behavior is not considered fraud; some people think that it is the loss of the victim's personal property, so the above behavior is still a crime of fraud; some people think that the crime of fraud is a violation of faith and honesty. Infringement does not require property damage. We believe that the crime of fraud is a crime against personal property, not against all property. The victim spent 30,000 yuan to buy 30,000 yuan worth of goods due to fraud. Although the overall property was not damaged, from the perspective of personal property, if there was no fraud by the perpetrator, the victim would not have spent 30,000 yuan to purchase goods. Spending 30,000 yuan would be a loss of personal property.
Therefore, using deceptive means to induce others into misunderstandings in order to defraud property, even if they pay a considerable amount of goods, should be considered fraud.
The crime of fraud is not limited to defrauding tangible things, but also includes defrauding intangible things and property interests. According to the relevant provisions of Article 210 of this Law, anyone who fraudulently obtains special value-added tax invoices or other invoices that can be used to fraudulently obtain tax refunds or tax deductions shall be guilty of fraud.
(3) Main elements
The subject of this crime is a general subject. Any natural person who has reached the legal age of criminal responsibility and has the capacity for criminal responsibility can commit this crime.
(4) Subjective factors
This crime is subjectively direct and intentional, with the purpose of illegally possessing public and private property.
Third, identify
(1) The boundary between this crime and non-crime
l, and the boundary between fraud and lending. For some reason, if the borrower fails to repay the loan for a long time, or fabricates lies or conceals the truth to defraud the money, and is unable to repay the loan when due, as long as there is no purpose of illegal possession, no squandering, no breach of contract, no further fraud or deception, and the borrower can truly repay the loan, Meaning, it is still a loan dispute and does not constitute a crime of fraud.
2. The boundary between the crime of fraud and the act of defaulting on payment on behalf of others. In the name of buying goods in short supply on behalf of others, taking the payment without buying anything, misappropriating the payment without authorization, defaulting on repayment, etc., we should focus on the true purpose, the relationship between the two parties, the reason for the incident, the specific behavior of the agent, and the breach of contract. The circumstances and consequences, etc., can be used to correctly determine whether there is intention to illegally possess. If you obviously want to purchase on behalf of others, but you cannot buy it because of misappropriation and still want to return it, you cannot be charged with fraud. Anyone who commits fraud in the name of purchasing, defrauding a large amount of property, squandering it without intending to return it, and having no ability to return it, should be punished with the crime of fraud.
3. The boundaries between the crime of fraud and the concealment of debts by fund-raising enterprises due to losses. If it is indeed a company that raises funds to run a business, but due to poor management, losses and debts, debt avoidance, or property and debt disputes. This is fundamentally different from fraudsters absconding with money in the name of raising funds to run a business and illegally possessing it.
(2) The boundary between this crime and the crime of pretentiousness and fraud.
Both use deceptive means, and the latter may also obtain property benefits. They are the same; but the subjective purpose, criminal means, amount of property, and object of infringement are different. The crime of pretentiousness and deception is an act of pretentiousness and deception that involves impersonating a state employee and harming the prestige of state agencies, the interests of the public, or the legitimate rights and interests of citizens for the purpose of defrauding various illegal benefits. What he defrauds includes not only property (but not limited to the amount), but also jobs, positions, honors, etc., which is a crime of disrupting social management order. Criminals impersonate state workers to defraud public and private property, infringing upon property rights and damaging the prestige and normal activities of state agencies. They are involved offenders and their charges should be determined based on the main target and main harm of their behavior. If the amount of property obtained by defrauding is not large, but the prestige of the state agency is seriously damaged, it should be punished as a crime of fraud; otherwise, it is defined as fraud. If the two objects are seriously violated, it will generally be treated as fraud according to the principle of one felony. If two crimes are committed independently and are not related to each other, they shall be dealt with according to the principle of concurrent punishment for multiple crimes.
(3) The boundaries between this crime and other fraud crimes stipulated in this law.
The remaining chapters of this law respectively provide for crimes such as fund-raising fraud, loan fraud, financial bill fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud, contract fraud and other crimes. These fraud crimes are the same as this crime in subjective and objective aspects, but they are different in terms of subject, criminal means, subject elements, objects, etc., and are easy to distinguish. Therefore, this article stipulates that “if this law provides otherwise, such provisions shall prevail.”
Fourth, Punishment
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. or control, and shall be concurrently or solely fined;
2. 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 10 years, and shall also be fined;
3 .If the amount is particularly huge or there are other particularly serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have property confiscated.
According to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases" (1996 65438+February 16), if an individual defrauds public or private property of more than 2,000 yuan, it is considered a "large amount"; If an individual defrauds public or private property of more than 30,000 yuan, it is considered a "huge amount."
If an individual defrauds public or private property of more than 200,000 yuan, it is considered a huge amount of fraud.
The huge amount of fraud is an important part of the crime of fraud, but it is not the only plot. If the amount of fraud exceeds 654.38 million yuan and one of the following circumstances occurs, it shall also be deemed as "particularly serious":
(1) The ringleader of a fraud group or the principal offender of a major fraud crime;
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(2) Recidivists or fugitives who commit crimes that cause serious harm;
(3) Defrauding legal persons, other organizations or individuals of urgently needed production materials, seriously affecting production or causing other serious losses;
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(4) Fraudulently obtaining funds and materials for disaster relief, emergency rescue, flood prevention, special care, relief and medical care, causing serious consequences;
(5) Expenditure of fraudulent property, resulting in the non-return of the fraudulent property;< /p>
(6) Using fraudulent property to carry out illegal and criminal activities;
(7) Being criminally punished for fraud;
(8) Causing the victim’s death or mental illness Abnormality or other serious consequences;
(9) Other serious circumstances.
If the person in charge and other directly responsible personnel who are directly responsible for the unit commit fraud in the name of the unit, and the proceeds from the fraud belong to the unit, and the amount is between 50,000 yuan and 100,000 yuan, they shall be punished in accordance with Article 152 of this Law. It is stipulated that the criminal liability of the above-mentioned persons shall be investigated; if the amount is between 200,000 yuan and 300,000 yuan, the criminal liability of the above-mentioned persons shall be investigated in accordance with the provisions of Article 152 of this Law.
For the crime of * * * accomplice fraud, the amount of the crime is determined by the amount of the actor's participation in * * * accomplice fraud, and the punishment is based on the actor's status, role, illegal income and other circumstances in the crime.
If a fraud has been committed but fails to obtain property due to reasons beyond the will of the perpetrator, it is an attempted fraud. Attempted fraud, if the circumstances are serious, should also be convicted and punished in accordance with the law.
The higher people's courts of each province, autonomous region, and municipality directly under the Central Government may, based on the economic development of the region and the social security situation, impose separate penalties between "two thousand yuan and four thousand yuan". Within the range of "1,000 yuan" and "30,000 yuan to 50,000 yuan", determine the "larger amount" and "huge amount" of individual fraud and corporate fraud in the region, and investigate the criminal liability of the relevant personnel, and refer to the provisions of Article 4 The amount of the original criminal law shall be determined to apply
V. Laws and judicial interpretations
Criminal law provisions]
Article 266: Fraud of public or private property, the amount is relatively If the amount is huge or there are other serious circumstances, the person shall be sentenced to fixed-term imprisonment of not less than three years and not more than 10 years, and shall also be fined; if the amount is extremely huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than 10 years, and shall also be fined; if the amount is particularly huge or there are other serious circumstances, the sentence shall be If the circumstances are particularly serious, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have property confiscated. If this law provides otherwise, such provisions shall prevail.
Anyone who fraudulently obtains special value-added tax invoices or other invoices that can be used to fraudulently obtain export tax refunds or tax deductions in paragraph 2 of Article 210 shall comply with the provisions of Article 266 of this Law. Conviction and punishment.
Article 269: Anyone who commits the crime of theft, fraud, or robbery and uses violence or threatens violence on the spot in order to hide stolen goods, resist arrest, or destroy criminal evidence shall be punished in accordance with Article 269 of this Law. Article 13 provides for conviction and punishment.
Whoever organizes or uses a cult organization or uses superstition to rape women or defraud property in paragraph 3 of Article 300 shall comply with the provisions of Articles 236 and 266 of this Law respectively. Conviction and punishment.
Article 287 Anyone who uses computers to commit financial fraud, theft, embezzlement, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this law.