II. Constitution of the crime
(1) Elements of the object
The object infringed by this crime is the ownership of public and private property. Although some criminal activities also use some deceptive means and even pursue some illegal economic interests, the object of their infringement is not or is not limited to the ownership of public and private property. Therefore, it does not constitute a crime of fraud. For example, the abduction and trafficking of women and children is a crime of violating personal rights.
the object of the crime of fraud is limited to the state, collective or individual property, not to defraud other illegal interests. Its object should not include loans from financial institutions. This is because article 193 of this law has made special provisions on the crime of loan fraud.
(II) Objective elements
Objectively, this crime is manifested in the use of fraud to defraud a large amount of public and private property. The first is the fraud of the perpetrator. There are two types of fraud in form, one is to fabricate facts, and the other is to conceal the truth. In essence, it is an act that makes the victim fall into a wrong understanding. The content of fraud is that in a specific situation, the victim will have a wrong understanding and make the property disposition that the perpetrator wants. Therefore, whether it is fiction or concealing past facts, or present and future facts, as long as it has the above contents, it is a fraud. If the content of fraud does not reach the level of making it dispose of property, it is not a fraud of fraud. Fraud must reach the level that can make ordinary people misunderstand. If you exaggerate that the goods you sell are not beyond the tolerance of society, it is not fraud. There are no restrictions on the means and methods of fraud, which can be both verbal fraud and behavioral fraud; Fraud itself can be either an act or an omission, that is, it has the obligation to inform but fails to perform the obligation to inform, which makes the other party fall into a wrong understanding or continue to fall into a wrong understanding. If the perpetrator uses this wrong understanding to defraud property, it also belongs to fraud. According to the provisions of Article 3 of this Law, anyone who organizes and uses Taoism or cults to organize a gathering or uses superstition to defraud property shall be punished as fraud.
Fraud makes the other party have a wrong understanding, and the wrong understanding of the other party is the result of the perpetrator's fraud; Even if the other party has a certain judgment error, it does not hinder the establishment of fraud. Fraud and the disposition of property by the other party must be mediated by the wrong understanding of the other party; If the other party does not dispose of property because of misunderstanding of fraud, it is not a crime of fraud. The other party to fraud only needs to seek the person who has the power or status to dispose of the property, not the owner or possessor of the property. The act of providing false statements and false evidence by filing a civil lawsuit to make the court make a judgment in favor of itself, thus defrauding property is called litigation fraud and the crime of fraud is established.
the establishment of the crime of fraud requires the victim to dispose of the property after falling into a wrong understanding, and the disposition of the property includes the disposition behavior and the disposition consciousness. This requirement is to distinguish between fraud and theft. Disposing of property is manifested as direct delivery of property, or commitment that the actor will acquire property, or commitment to transfer property rights and interests. If the actor makes others give up their property by fraudulent means, and the actor picks up the property, he should also be punished as fraud. However, the act of putting a piece of metal similar to a coin into a vending machine to obtain goods in the vending machine does not constitute a crime of fraud, but only a crime of theft.
Fraud makes the victim dispose of the property, and the actor obtains the property, which causes the victim's property to suffer losses. According to the provisions of this article, it is a crime to defraud a large amount of public or private property. According to the relevant judicial interpretation, if the amount of fraud is large, the starting point is 2 yuan. But this does not mean that attempted fraud does not constitute a crime. If the attempted fraud is serious, it should also be convicted and punished according to law. What needs to be studied is whether the perpetrator commits the crime of fraud when he uses fraud to defraud property, but at the same time pays something of considerable value. Some people think that the loss caused by fraud refers to the reduction of the victim's overall property, so the above behavior is not a crime of fraud; Others believe that it is the loss of the victim's personal property, so the above behavior is still a crime of fraud; Others believe that the crime of fraud is an act of violating honesty and credit and does not require property losses. We believe that the crime of fraud is a crime against personal property, not against the whole property. The victim was cheated to spend 3, yuan to buy 3, yuan of goods. Although the overall property was not damaged, from the perspective of individual property, if there was no fraud by the perpetrator, the victim would not spend 3, yuan to buy goods, but spending 3, yuan is the damage to individual property. Therefore, using fraudulent means to make others fall into the wrong understanding of defrauding property, even if they pay a considerable amount of money, they should be considered as fraud.
the crime of fraud is not limited to cheating tangible things, but also includes cheating intangible things and property interests. According to the relevant provisions of Article 2l of this Law, whoever obtains special invoices for value-added tax or even other invoices that can be used to defraud tax refund or tax deduction abroad by deception shall be guilty of fraud.
(III) Subject Elements
The subject of this crime is the general subject, and any natural person who has reached the legal age of criminal responsibility can constitute this crime.
(4) Subjective elements
The subjective aspect of this crime is the purpose of direct intentional and illegal possession of public or private property.
III. Identification
(1) The boundary between this crime and non-crime
L. The boundary between fraud and lending. If the borrower defaults on the loan for a long time for some reason, or defrauds the money by fabricating a lie or concealing the truth, and is unable to repay it at maturity, as long as there is no purpose of illegal possession, no waste, no default, no fraud and deception, and there is a real intention to repay it, it still belongs to a loan dispute and does not constitute a crime of fraud.
2. The boundary between the crime of fraud and the crime of shopping on behalf of others. In the name of buying goods in short supply, the person who owes money without buying anything misappropriates the arrears or fails to pay them back. We should focus on the real purpose, the relationship between the two parties, the cause of the incident, the specific behavior of the person who owes money, the plot of the consequences of the arrears, etc., so as to correctly judge whether it has the intention of illegal possession. If you can clearly want to shop for others, but you can't buy it for some reason, and you still want to return it after occupation, you can not be punished for fraud. If fraud is carried out in the name of purchasing, and the amount of property defrauded is large, profligate, and there is no intention to return it, and it is unable to return it, it should be punished as fraud.
3. The boundary between the crime of fraud and the evasion of debts by capitalized enterprises due to losses. If it is a capitalized enterprise, but it goes out because of poor management and loss avoidance, it is still a property debt dispute. This is essentially different from fraudsters who abscond with money in the name of raising funds from enterprises to realize their illegal possession.
(II) The boundary between this crime and the crime of swindling and cheating
The former is the use of deception, and the latter may also obtain property benefits, which are the same; However, they are different in subjective purpose, criminal means, the amount of property needed and the object of infringement. The crime of swindling and cheating is an act of swindling and cheating with the purpose of defrauding all kinds of illegal interests, pretending to be a state functionary, and it is an act that damages the prestige of state organs, public interests or citizens' legitimate rights and interests. The property it cheats includes not only property (but there is no limit on the amount), but also work, position, honor, etc., which belongs to the crime of disrupting social management order. When criminals impersonate state functionaries to defraud public and private property, they not only infringe on property rights, but also damage the prestige and normal activities of state organs. They are implicated offenders, and should be convicted and severely punished according to the main object and main harm of the act infringement. If the amount of property defrauded is not large, but the prestige of state organs is seriously damaged, it should be treated as the crime of swindling and cheating; On the other hand, it is defined as fraud. If two objects are seriously violated, it is generally handled according to the principle that fraud is punished as a felony. If two crimes are committed independently and are not implicated in each other, they should be dealt with according to the principle of combined punishment for several crimes.
(III) Boundary between this crime and other fraud crimes stipulated in this Law
This Law stipulates the crimes of fund-raising fraud, loan fraud, financial bill fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud and contract fraud in the remaining chapters. These fraud crimes are the same as this crime in both subjective and objective aspects, but they are different in subject, means, elements and objects, so it is easy to distinguish them. Because of this provision in this article, "if there are other provisions in this law, those provisions shall prevail".
IV. Punishment
1. Whoever commits this crime 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;
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 ten years, and shall also be fined;
3. If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 1 years or life imprisonment.
3. If the amount is especially huge or the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 1 years or life imprisonment, and shall also be fined or confiscated.
According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (December 16, 1996): individuals who defraud public or private property of more than 2, yuan are considered as "large"; Individuals who defraud public or private property of more than 3, yuan belong to a "huge amount". "the amount is huge".
if an individual swindles public or private property of more than 2, yuan, the amount of fraud is particularly huge. The huge amount of fraud is an important element of the crime of fraud, but it is not the only circumstance. The amount of fraud is more than 1, yuan, and it should also be considered as "especially serious" under any of the following circumstances:
(1) the ringleader of the fraud group or the * * * accomplice commits fraud with serious circumstances;
(2) recidivism or wandering crime is seriously harmful;
(3) defrauding legal persons, other organizations or individuals of the means of production urgently needed, which seriously affects production or causes other serious losses;
(4) defrauding disaster relief, emergency rescue, flood control, special care, relief and medical funds and materials, resulting in serious consequences;
(5) squandering the defrauded property, so that the defrauded property cannot be returned;
(6) using fraudulent property to engage in illegal and criminal activities;
(7) Those who have received criminal punishment for fraud;
(8) Causing the victim's death, mental disorder or other serious consequences;
(9) Other serious circumstances.
if the person in charge directly responsible for the unit and other directly responsible personnel commit fraud in the name of the unit, and the proceeds of fraud are owned by the unit, and the amount is more than 5, yuan to 1 million yuan, criminal responsibility shall be investigated in accordance with the provisions of Article 152 of this Law; If the amount is more than 2, yuan to 3, yuan, criminal responsibility shall be investigated in accordance with the provisions of Article l52 of this Law.
if it constitutes the crime of * * * accomplice fraud, it should be punished according to the amount of the perpetrator's participation in * * * accomplice fraud, and combined with the circumstances such as the status and role of the perpetrator in the crime of * * * accomplice and the amount of illegal income.
If the perpetrator has started to commit fraud, but has not obtained property due to reasons other than his will, it is an attempted fraud. Attempted fraud, if the circumstances are serious, shall also be convicted and punished according to law.
the higher people's courts of all provinces, autonomous regions and municipalities directly under the central government may, according to the economic development of their respective regions and the social security situation, classify them as "2, to 4, yuan" and "3, to 5, yuan", "3, to 5, yuan" and "directly under the central government" respectively. With reference to the amount stipulated in the fourth paragraph of this article, the amount of "large amount" and "huge amount" of individual fraud in this area and the amount of "large amount" and "huge amount" of unit fraud are determined respectively, and the criminal responsibility of the relevant personnel shall be investigated. The specific amount standard stipulated in Article 151 or Article 152 of the original Criminal Law shall be applied and reported to the Supreme People's Court for the record.
V. Legal Provisions and Judicial Interpretation
Criminal Law
Article 266 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 shall 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 1 years. 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 1 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.
article 21, paragraph 2, whoever obtains special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or offset taxes by deception shall be convicted and punished in accordance with the provisions of article 266 of this law.
article 269 whoever commits the crime of theft, fraud or robbery and uses violence or threatens violence on the spot to conceal stolen goods, resist arrest or destroy criminal evidence shall be convicted and punished in accordance with the provisions of article 263 of this law.
article 3, paragraph 3: whoever organizes or uses cult organizations such as huidaomen, or uses superstition to rape women or defraud women's property shall be convicted and punished in accordance with the provisions of articles 236 and 266 of this law respectively.
article 287 whoever uses computers to commit financial fraud, theft, corruption, 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.
[Related Decisions]
the NPC Standing Committee's Decision on Maintaining Internet Security (2.12.28) In order to protect the legitimate rights of individuals, legal persons and other organizations, if one of the following acts constitutes a crime, criminal responsibility shall be investigated in accordance with the relevant provisions of the Criminal Law: theft, fraud and extortion by using the Internet.
Judicial Interpretation
According to the provisions of Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Cases Disrupting the Order of Telecommunication Market, anyone who applies for network access and uses a mobile phone with false or fraudulent identity documents of others, resulting in a large loss of telecommunication charges, shall be convicted and punished for fraud in accordance with the provisions of Article 266 of the Criminal Law.
the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (Fa Fa Fa [1996] No.32, December 16, 1996)
In order to punish fraudulent criminal activities, according to the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law) and the Decision of the NPC Standing Committee on Punishing Crimes of Disrupting Financial Order (hereinafter referred to as the Criminal Law) The relevant provisions of the NPC Standing Committee's Decision on Punishing Crimes of Disrupting Financial Order (hereinafter referred to as the Decision) are explained as follows:
1. According to the provisions of Articles 151 and 152 of the Criminal Law, swindling public or private property in a large amount constitutes the crime of fraud.
individuals who defraud public or private property of more than 2, yuan belong to a "large amount"; Individuals who defraud public or private property of more than 3 thousand yuan belong to the amount.