This kind of behavior does not constitute fraud, but belongs to private lending. According to my country's criminal law, fraud is a criminal act. According to Article 266 of the Criminal Law of the People's Republic of China, the crime of fraud refers to the act of defrauding relatively large amounts of public or private property by fabricating facts or concealing the truth for the purpose of illegal possession.
Civil lawsuits can be filed.
First of all, you have the right to sue the people's court at the place of the defendant's domicile to demand the defendant to repay the debt. The statute of limitations for debt disputes is three years.
If a repayment period is agreed upon, the statute of limitations shall be three years, calculated from the date of expiration of the repayment period; if a repayment period is not agreed upon, a grace period shall be granted to the other party, and the statute of limitations shall be two years, with leniency After two years from the date of expiration of the time limit, you will lose your right to win the lawsuit (that is, your claim will not be protected by law), so you must pay attention to the statute of limitations. Extended information
Elements of the crime of fraud
Object elements
The object of this crime is the ownership of public and private property. Although some criminal activities also use certain deceptive methods and even pursue certain illegal economic benefits, the object of their infringement is not or is not limited to the ownership of public or private property. Therefore, it does not constitute fraud. For example, the crime of abducting women and children is a crime of violating personal rights.
The object of the crime of fraud is limited to national, collective or personal property, rather than defrauding other illegal benefits. Its objects should also exclude loans from financial institutions. Because Article 193 of the Criminal Law has specifically stipulated the crime of loan fraud.
Objective elements
The objective aspect of this crime is the act of using fraudulent methods to defraud large amounts of public and private property.
First of all, the perpetrator committed fraud. The crime of fraud includes two categories in terms of behavior, one is fabricating facts, and the other is concealing the truth. Both of them are essentially behaviors that lead the victim to fall into a wrong understanding. The content of fraud is to cause the victim to fall into a wrong understanding in a specific situation and to achieve the desired disposal of property.
Therefore, whether it is fiction, concealment of past facts, or present and future facts, as long as it has the above content, it is an act of fraud. If the content of the fraud does not reach the level of disposing of property, it does not constitute fraud.
Fraudulent behavior must reach the level of causing misunderstandings among ordinary people. Exaggerated publicity of the goods being sold does not exceed the affordability of society and does not constitute fraudulent behavior.
There are no restrictions on the means and methods of fraud. It can be verbal fraud or behavioral fraud (fraud itself can be either an act or an omission, that is, there is an obligation to inform certain facts. Failure to perform this obligation causes the other party to fall into a misunderstanding or continue to fall into a misunderstanding). If the perpetrator uses this misunderstanding to defraud property, it is also fraud.
According to the provisions of Article 300 of the "Criminal Law", anyone who organizes or uses Taoist or cult organizations to organize gatherings or uses superstitious activities to defraud property will be punished with the crime of fraud.
Secondly, fraud causes the other party to have a wrong understanding. If the other party has a wrong understanding of the fraudster, even if the other party makes certain errors in judgment, it will not prevent the establishment of the crime of fraud. Between the act of fraud and the other party's disposition of property, the other party's misunderstanding must intervene.
If the other party does not dispose of the property due to a wrong understanding of the fraud, the crime of fraud will not be committed. The other party to the fraud only needs to be a person who has the right or qualification to dispose of the property, and does not necessarily need to be the owner or occupier of the property.
The act of filing a civil lawsuit to defraud property by providing false statements and false evidence to get the court to make a judgment in your favor is called litigation fraud, but it does not constitute the crime of fraud (see law for details) Research Office: "Essential Elements of the Crime of Fraud", Law Press 2008 Edition, Page 1), for details, please refer to the Legal Policy Research Office of the Supreme People's Procuratorate, October 14, 2002, "On the Use of False Evidence to Possess Other People's Property to Defraud the Court of Civil Judgments" Questions (responses on how to apply the law)".
Thirdly, the establishment of the crime of fraud requires the victim to dispose of property after falling into a wrong understanding. The disposal of property includes the act of disposal and the intention of disposal. This requirement is proposed to distinguish the crime of fraud and the crime of theft.
The act of disposing of property is manifested by directly delivering the property, or promising that the actor will obtain the property, or promising to transfer property rights.
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 metal piece 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.
Finally, after the fraud caused the victim to dispose of the property, the perpetrator obtained the property again, thus causing property losses to the victim. According to Article 266 of the Criminal Law, defrauding public or private property only constitutes a crime if the amount is relatively large.
According to the latest judicial interpretation adopted at the 49th meeting of the 11th Supervisory Committee of the Supreme People's Procuratorate on November 24, 2010, the starting point for the crime of fraud is between 3,000 yuan and more than 10,000 yuan. If the fraud is attempted and the circumstances are serious, he should also be convicted and punished in accordance with the law.
In addition, it should be noted that the crime of fraud is not limited to defrauding tangible objects, but also includes defrauding intangible objects and property interests. According to the relevant provisions of Article 210 of the Criminal Law, anyone who uses deceptive means to obtain special value-added tax invoices or other invoices that can be used to defraud out-of-door tax refunds or tax deductions is guilty of fraud.
Subject Requirements
The subject of this crime is a general subject. Any natural person who has reached the legal age of criminal responsibility and has the ability to commit criminal responsibility can commit this crime.
Subjective elements
The subjective aspect of this crime is the purpose of directly intentionally and illegally possessing public and private property.
Constitution of crime
Boundary between lending behavior
For some reason, the borrower defaults on the loan for a long time, or fabricates lies or conceals the truth to defraud money. Those who are unable to repay on time, as long as there is no purpose of illegal possession, no squandering, no default in repayment, no more fraud to defraud money, and a genuine intention to repay; some also forge repayment receipts after borrowing money, falsely claiming that they have Repayment is still a loan dispute and does not constitute a crime of fraud.
Using losses to avoid debts as the limit
If it is indeed a business to raise funds to run a business, but it is in debt due to poor management and losses, and goes out to avoid debts, it is still a property and debt dispute. This is essentially different from a scammer who, in the name of raising funds to start a business, makes a lot of money and then runs away to achieve his illegal possession purpose.
The boundary with the crime of pretentiousness and fraud
Both of them use deceptive means, and the latter may also obtain property benefits. These two points are the same; however, the subjective purpose and The means of committing the crime, the amount of property required and the object of the infringement are different.
The crime of pretentiousness and fraud is to pretend to be a state employee and engage in pretentious and deceptive activities for the purpose of defrauding various illegal benefits. It is an act that damages the prestige of state agencies, public welfare or the legitimate rights and interests of citizens. It not only includes the amount of property (but there is no limit on the amount), but also includes work, position, status, honor, etc., which is a crime of disrupting social management order.
Criminals pretend to be state workers to defraud public and private property, infringe upon the property rights of state agency staff, and damage the prestige and normal activities of state agencies. They are implicated offenders and should be based on the main object of the infringement and the main harm. Confirm the crime and impose a severe punishment.
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 according to the crime of fraud; on the contrary, if it is defined as the crime of fraud and serious harm to two objects, it should be punished according to the crime of fraud. If two crimes are committed independently and are not implicated in each other, they shall be punished in accordance with the principle of concurrent punishment for several crimes.
The boundaries between this crime and other fraud crimes stipulated in this law
This law stipulates the crime of fund-raising fraud, loan fraud, financial instrument fraud, and letter of credit in the remaining chapters. Fraud, credit card fraud, securities fraud, insurance fraud, contract fraud.
The subjective and objective manifestations of these fraud crimes are the same as this crime, but they are different in the criminal subject, criminal means, subject elements and objects, which are relatively easy to distinguish. This article stipulates: "If this law provides otherwise, the provisions shall prevail."
Reference: Baidu Encyclopedia - Crime of Fraud