1. The sentencing standards for the crime of contract fraud are as follows:
(1) Whoever, for the purpose of illegal possession, defrauds the other party of property in the process of signing and performing a contract, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall 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 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.
Second, what are the constitutive elements of the crime of contract fraud?
The constitutive elements of contract fraud are as follows:
1, the object is the state's management order of economic contracts and the ownership of public and private property;
2. Objectively speaking, in the process of signing and performing the contract, it is relatively large to defraud the other party's property by fictional facts or concealing the truth;
3. The subject is an individual or unit;
4. The subjective aspect is intentional.
Third, the crime of contract fraud
It refers to the act of defrauding the other party's property by fraudulent means such as fictional facts or concealing the truth for the purpose of illegal possession, which constitutes a crime.
(A) and the boundaries of civil fraud
This kind of crime is often intertwined with civil fraud, but there are obvious differences between them, mainly in the following aspects:
1, with different subjective purposes.
Civil fraud is a fraudulent act aimed at operating business and creating performance ability, which induces the other party to fall into misunderstanding and conclude a contract with it. It does not have the purpose of illegal possession of public and private property, but only hopes to obtain certain economic benefits from the other party through fraud, and the crime of contract fraud is to achieve the purpose of illegal possession of public and private property in the name of signing economic contracts.
2. The contents and methods of fraud are different.
Civil fraud has a civil content, that is, the fraudster obtains certain economic benefits through economic labor such as commodity exchange, completing work or providing services. The crime of contract fraud is not prepared to perform the contract at all, or has no actual ability or guarantee to perform the contract at all. Civil fraud in contracts generally does not need to pretend to be an identity, but mainly focuses on the terms or contents of the contract, such as concealing the defective contract subject matter or making false descriptions and introductions to the quality of the contract subject matter; The perpetrator of the crime of contract fraud always tries his best to pretend to be a legal identity, in order to achieve the purpose of using the contract to defraud property, such as using a pseudonym, identity certificate, power of attorney, etc. Cheat the trust of the deceived party.
3. The amount of fraudulent property is different.
4. The objects of fraud infringement are different.
The object of civil fraud is the rights and obligations agreed by both parties in the contract, such as the contract deposit and advance payment defrauded by the fraudster, which are all manifestations of contract debts; The object of contract fraud is the ownership of public and private property, and public and private property as the object of crime is always the embodiment of property right.
5. The legal consequences of fraud are different.
Civil fraud is an invalid civil act, and the parties can make it invalid. If a dispute between the parties causes a lawsuit, the civil fraudster shall bear the civil liability for returning the property and compensating for the losses, while the crime of contract fraud is a serious violation of the criminal law and should be punished. The actor should bear double legal responsibilities for the legal consequences of the crime of contract fraud, not only criminal responsibilities, but also civil responsibilities if losses are caused to the other party.
6. Fraud is governed by different laws.
Although civil fraud is objectively manifested as fictional facts or concealing the truth, its fraud is still within a certain limit, so it is still regulated by civil law norms; The crime of contract fraud is aimed at illegally possessing other people's public or private property, which violates the criminal law and should be punished, so it is subject to punishment laws and regulations.
(B) and the difference between fraud
In essence, the crime of contract fraud is also a specific crime of fraud, and its relationship with the crime of fraud is both special and general. The difference between them is mainly manifested in the following aspects:
1, the infringing objects are different. The crime of fraud only infringes on property ownership, which is a single object, while this crime infringes not only the property rights of others, but also the contract behavior management system.
2. The objective aspects of crime are different. Fraud can be manifested in fabricating any facts or concealing the truth to defraud property; This crime is only in the process of signing and performing an economic contract, so the fraud means has the particularity of a specific scope.
3. The subject of crime is different. The crime of fraud is limited to the subject of natural persons; The subject of this crime includes units, not any units.
4. This crime and the crime of fraud belong to the concurrence of laws, and the principle that special law is superior to general law should be followed.
(3) punish the crime of contract fraud
1. If a natural person commits this crime, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, 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.
2. If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article.
(D) Identification of contracts in the crime of contract fraud
Identification of contract in the crime of contract fraud. Both a formal written contract and a simple oral contract are recognized and protected by the contract law, and with the development of science and technology and economic life, new contract forms will appear constantly, so the contract law stipulates the flexible clauses of "other forms" of contracts for forward-looking consideration. In economic life, there are a large number of oral contracts, which are often used by criminals for fraud. Oral contract and written contract are only different in form, but both are within the scope of contract law adjustment. There is no essential difference between oral contract and written contract in the object of infringement, and the provisions of criminal law on contract fraud do not rule out the use of oral contract for fraud. Therefore, as long as the oral contract is used for fraud, which violates the market economic order and the property rights of others, it can completely become a "contract" in the crime of contract fraud. The legislative purpose of the crime of contract fraud in criminal law, that is, the object of protection, mainly lies in maintaining the normal market contract order, while the current contract law, which aims at maintaining the normal market order, basically covers most civil and commercial contracts, and its provisions on various civil and commercial contracts should be used as a reference for determining the establishment, effectiveness and performance of contracts in criminal law. Therefore, the criminal law should not have too many restrictions on the contract form of contract fraud. As long as it reflects a certain market order, whether in written form, oral form or other forms, it can constitute a contract of contract fraud, and the criminal law itself has no clear restrictions on "written contract". Of course, from the perspective of criminal proceedings, the difficulty of proof in different forms of contracts in criminal proceedings is different. However, it cannot be denied that an oral contract can become a contract in the crime of contract fraud under the pretext of facilitating litigation. In judicial practice, as long as there is evidence to prove the existence of a certain contract form, then the contract elements required by the crime of contract fraud should be met.
(5) The boundary between the crime of counterfeiting patent and the crime of contract fraud.
Generally speaking, the boundary between the crime of counterfeiting patent and the crime of contract fraud is clear, but in the performance of the crime of counterfeiting patent, there is a situation that "the patent number of others is used in the contract without permission, which makes people mistake the technology involved in the contract for the patented technology of others". If this behavior constitutes the crime of counterfeiting patents, it may be imaginative competition with the crime of contract fraud, because it involves the use of false content in the contract and may become a means of contract fraud. The key to judge is whether the actor's purpose of counterfeiting others' patents in the contract is to defraud others' property through the contract, and whether counterfeiting others' patents has become a means of contract fraud. If the actor only impersonates another person's patent in the signed contract without the purpose of defrauding other people's property, and then actually performs it according to the contract, then only the crime of counterfeiting patent is established. Even if there is a dispute during the performance of the contract, it is also a general civil dispute and does not constitute the crime of contract fraud. If the actor cheats through the contract for the purpose of defrauding others' property, and at the same time uses counterfeiting others' patents as a means in the contract, the crime of counterfeiting patents and the crime of contract fraud are established, and they are imaginative and competing, so one should be sentenced.
(six) the difference between bill fraud, financial voucher fraud and contract fraud.
The difference between bill fraud, financial voucher fraud and contract fraud. Contract fraud, bill fraud and financial voucher fraud are all special fraud crimes, all of which have the essential characteristics of fraud, but they are different in the object of infringement and specific behavior. From the object of crime, all three crimes infringe on the property ownership of others, but the crime of contract fraud also infringes on the national contract management system, while the crime of bill fraud and the crime of financial voucher fraud infringe on the national financial management order. From the objective elements, the crimes of contract fraud, bill fraud and financial voucher fraud are objectively manifested as using fictional facts to conceal the truth, making the other party deceived, believing it, and "voluntarily" handing over property. However, the crime of contract fraud is to illegally occupy others' advance payment, goods, payment for goods or secured property by signing and performing contracts; The crime of bill fraud and the crime of financial voucher fraud are the acts of illegally occupying other people's property by using false financial bills or bank settlement vouchers as criminal means. In the process of signing and performing the contract, paying the contract price with false bills or bank settlement vouchers to defraud the other party's property will lead to the intersection of the three crimes. According to the principle of prohibiting repeated evaluation in criminal law, the harmful behavior of "paying the contract price with false bills or bank settlement vouchers to defraud the other party's property" should only be evaluated according to one constituent element of the crime in criminal law. The situation that the perpetrator commits a criminal act, but violates several criminal law norms at the same time, and the form conforms to several different criminal constitutions, belongs to the theoretical concurrence of laws and regulations. Therefore, judging from the relationship between contract fraud, bill fraud and financial voucher fraud, there is a cross-competitive relationship, and the principle that law is more important than law should be applied. Judging from the legal punishment of bill fraud, financial voucher fraud and contract fraud, the legal punishment of bill fraud and financial voucher fraud is heavier than contract fraud. Therefore, when there is cross competition, bill fraud and financial voucher fraud should be convicted and punished.
It should be pointed out that the second paragraph of Article 224 of the Criminal Law clearly stipulates that the perpetrator uses forged, altered or invalid bills as the contract guarantee for fraud, which is an objective form of the crime of contract fraud, and does not conform to the behavioral characteristics of directly defrauding the victim's property by means of false bill settlement in the crime of bill fraud. According to the principle of legality, the crime of contract fraud should be convicted and punished.
Legal basis:
Criminal law of the people's Republic of China
Article 224 Whoever, in the process of signing and performing a contract, defrauds the other party of property for the purpose of illegal possession under any of the following circumstances, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention 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 10 years or life imprisonment, and shall also be fined or confiscated:
(1) Signing a contract in the name of a fictitious unit or others;
(2) Mortgaging with forged, altered or invalid bills or other false property rights certificates;
(three) to perform a small contract or part of the contract first, to deceive the other party to continue to sign and perform the contract, and to have no actual performance ability;
(4) After receiving the payment for goods, advance payment or secured property paid by the other party;
(5) defrauding the other party's property by other means.