Article 266 of the "Criminal Law" stipulates the crime of fraud: whoever defrauds public or private property, and the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance, and shall also or solely 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 and not more than ten years, and shall also be fined; if the amount is particularly huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years, and shall also be fined; and fines or confiscation of property. If this law provides otherwise, such provisions shall prevail.
Paragraph 2 of Article 210 stipulates: “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 shall be punished in accordance with Article 266 of this Law. Conviction and punishment according to Article ”
Constitution of fraud;
1. Object. The object of the crime of fraud is the ownership of public and private property. The object of the crime can be various forms of property, including Movable and immovable property. If the criminal law provides otherwise for defrauding public or private property by deception, the offender shall be convicted and punished in accordance with the separate provisions, and the relevant provisions of the conflicting laws and regulations shall apply.
For example, according to the different nature of the property defrauded by the perpetrators, the behavior of defrauding fund-raising, loans, and insurance for the purpose of illegal possession should be identified as fund-raising fraud, loan fraud, and insurance fraud respectively, and according to special According to the principle that the law is superior to the general law, the crime of fraud will no longer be punished. ?
Second, the objective aspect of the crime of fraud is the act of defrauding public or private property in large amounts by fabricating facts or concealing the truth.
Fabricating facts refers to making up something that does not exist or cannot happen, to deceive others and fall into a "wrong understanding", such as lying about being a lawyer. Concealing the truth means concealing objective facts, causing others to fall into "misconceptions" and handing over certain property.
There is a causal relationship between harmful behavior and harmful results, which is reflected in the crime of fraud, that is, there is a causal relationship in criminal law between the fraudulent behavior and the acquisition of property. That is, the perpetrator makes the victim or a person with certain management rights over the property fall into a certain misunderstanding by fabricating facts or concealing the truth, and voluntarily delivers the property based on this misunderstanding. ?
To constitute the crime of fraud, it is required that the defrauding of public and private property reaches the standard of "large amount".
According to Article 1 of the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud", the amount of defrauding public or private property shall be more than 3,000 yuan and less than 10,000 yuan, more than 30,000 yuan but less than 100,000 yuan, five If the amount is less than 100,000 yuan, it will be deemed as "large amount", "huge amount" and "especially huge amount" as stipulated in Article 266 of the Criminal Law.
3. Subject. The subject of this crime is a general subject, that is, a natural person who is over 16 years old and has the capacity for criminal responsibility.
Fourth, the subjective aspect, the subjective aspect of the crime of fraud is direct intention and requires illegal possession as the purpose.
Extended data:
The difference between fraud and private lending disputes;
First, the key to distinguishing private lending disputes from fraud in the name of lending is to file a case Evidence proves whether the perpetrator has the purpose of illegally possessing other people's property;
Second, in practice, it is generally through the relationship between the borrower and the lender, the reasons for the loan relationship, the reasons why the borrower cannot repay on time, Whether the borrower has a positive attitude towards repayment is a key factor in examining whether the borrower has the purpose of illegally possessing other people's property;
Third, generally speaking, fraud crimes in the name of lending mostly occur in people who recognize Between borrowers and lenders who have a low degree of relationship and are relatively unfamiliar with each other.
This kind of relationship also makes it easier for perpetrators to "fabricate facts and conceal the truth", and lenders are more likely to be deceived and make "cognitive errors";
Fourthly, private lending disputes are often caused by borrowers having financial difficulties and short-term loans. It is difficult to turn over funds within a short period of time, and perpetrators who commit fraud crimes in the name of lending usually do not encounter short-term capital turnover problems, but fabricate false and difficult facts for the purpose of defrauding property;
5. When a borrower in a civil lending relationship is unable to repay on time, it is usually due to objective difficulties beyond his or her will that make it difficult to realize the expected repayment of the loan. After defrauding property, perpetrators who commit fraud crimes in the name of lending usually use the property to carry out illegal activities, squander the property or hide the property, fail to repay on time, and have no subjective intention to repay;
6. When the borrower cannot repay the loan on time, private loan borrowers will generally actively strive for repayment through their own relevant behaviors, while fraudsters will generally not engage in relevant behaviors.
Reference materials:
Fraud-Baidu Encyclopedia