1. What are the sentencing standards for the crime of contract fraud
1. The sentencing standards for the crime of contract fraud are as follows:
(1) For the purpose of illegal possession, In the process of signing and performing a contract, whoever defrauds the other party of property, and 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 solely be fined;
(2) The amount is huge or there are other serious 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; money or confiscation of property.
2. What are the constituent elements of contract fraud
The constituent elements of contract fraud are as follows:
1. The object is the state’s management order of economic contracts and the public and private Property ownership;
2. Objectively, in the process of signing and performing a contract, the act of defrauding the other party of a relatively large amount of property by fabricating facts or concealing the truth;
3. The subject is an individual or a unit;
4. The subjective aspect is intentional.
3. The crime of contract fraud
It refers to the use of deceptive means such as fabricating facts or concealing the truth during the process of signing and performing a contract for the purpose of illegal possession to defraud the other party of its property. , the amount is relatively large, thus constituting a crime.
(1) Boundary with civil fraud
This crime is often intertwined with civil fraud, but there are obvious differences between the two, which are mainly reflected in the following aspects :
1. Different subjective purposes
Civil fraud is a fraudulent act for the purpose of creating the ability to perform for business purposes, so as to induce the other party to fall into a misunderstanding and conclude a contract with it. It does not have The purpose of illegally possessing public and private property is only to obtain certain economic benefits from the other party through committing fraudulent acts, while the crime of contract fraud is to achieve the purpose of illegally possessing public and private property in the name of signing an economic contract.
2. The content and means of fraud are different
Civil fraud has civil content, that is, the fraudster obtains certain economic benefits through commodity exchange, completing work or providing labor services and other economic labor. . The crime of contract fraud is not prepared to perform the contract at all, or there is no actual ability or guarantee to perform the contract. Civil fraud in a contract generally does not require impersonation of identity, but mainly focuses on the terms or content of the contract, such as concealing defective contract subject matter, or making false descriptions and introductions to the quality of the contract subject matter; and the perpetrator of contract fraud is In order to achieve the purpose of using contracts to defraud property, they always do everything possible to pretend to be a legitimate identity, such as using false names, identity certificates, power of attorney, etc. to defraud the trust of the defrauded party.
3. The amount of the fraudulent property is different
4. The object of the fraud is different
The object of civil fraud is the rights and obligations agreed upon by both parties in the contract , such as the contract deposit, advance payment, etc. defrauded by the fraudulent party, are all manifestations of the contract debt; the object of the crime of contract fraud is the ownership of public and private property, and the public and private property as the object of the crime is always the embodiment of property rights.
5. The legal consequences of fraud are different
Civil fraud is an invalid civil act and the parties can invalidate it. If a dispute arises between the parties and a lawsuit arises, the party committing civil fraud shall bear the civil liability for returning property and compensating losses for the consequences of its fraudulent conduct. However, the crime of contract fraud is a serious violation of criminal law and should be punished. The legal consequences of the crime of contract fraud involve dual legal responsibilities. Not only do you have to bear criminal liability, but you also have to bear civil liability if it causes losses to the other party.
6. Different laws apply to fraud
Although civil fraud objectively manifests itself as fabricating facts or concealing the truth, its fraudulent behavior is still within certain limits, so it is still governed by civil law. Standard adjustment; and the crime of contract fraud is for the purpose of illegally possessing other people's public and private property, which violates the criminal law and should be punished by criminal penalties, so it is adjusted by the criminal law.
(2) Difference from the crime of fraud
In essence, the crime of contract fraud is also a specific crime of fraud, and it has a special and general relationship with the crime of fraud. The differences are mainly reflected in the following aspects:
1. The objects of infringement are different. The crime of fraud only infringes on property ownership and is a single object, while this crime not only infringes on the property rights of others, but also infringes on the contract behavior management system.
2. The objective aspects of crime are different. The crime of fraud can be manifested as fabricating any fact or concealing the truth in order to defraud property; this crime is only during the signing and performance of an economic contract, so the fraud method has a specific scope of particularity.
3. The criminal subjects are not the same. The crime of fraud is limited to natural persons; the subjects of this crime include units, and they can be any unit.
4. This crime and the crime of fraud belong to the same legal provisions, and the principle that special laws are superior to general laws should be followed.
(3) Punishment for the crime of contract fraud
1. A natural person who commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined; if the amount is huge or there is 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 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 ten years or life imprisonment, and shall also be fined or his property shall be confiscated.
2. If a unit commits this crime, the unit shall be fined, and the person directly in charge and other directly responsible personnel shall be held criminally responsible in accordance with the provisions of this article.
(4) Identification of the contract in the crime of contract fraud
Identification of the contract in the crime of contract fraud. Whether it is a formal written contract or a simple oral contract, they are all contracts recognized and protected by contract law. With the development of science and technology and economic life, new contract forms will continue to appear, and contract law is therefore forward-looking. Consideration provides for flexibility in "other forms" of contracts. In economic life, there are a large number of oral contracts, and oral contracts are often used by criminals to commit fraud. Oral contracts and written contracts are only different in form, but they are both within the scope of contract law. There is no essential difference in the objects violated between using oral contracts to commit fraud and using written contracts. Moreover, the provisions of the criminal law on the crime of contract fraud do not exclude the use of Oral contract fraud. Therefore, as long as an oral contract is used to commit fraud and infringes upon 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 the criminal law, that is, the object of protection, is mainly to maintain the normal market contract order. The current contract law, which aims to maintain the normal market order, basically covers most civil and commercial contracts, and it covers various civil and commercial matters. The provisions of the contract should be used as a reference in criminal law to determine the establishment, effectiveness, performance and other related concepts of a contract. Therefore, the contract form of the crime of contract fraud in the criminal law should not be too restrictive. As long as it is a contract that reflects a certain market order, whether it is written, oral or other forms, it can constitute a contract for the crime of contract fraud. Moreover, the criminal law itself does not have clear restrictions on “written contracts”. Of course, from the perspective of criminal proceedings, different forms of contracts have different degrees of difficulty in proving in criminal proceedings. However, convenience of litigation cannot be used as an excuse to deny that oral contracts can become contracts in the crime of contract fraud. In judicial practice, as long as there is evidence to prove the existence of a certain form of contract, the contract elements required for the crime of contract fraud should be met.
(5) The boundary between the crime of patent counterfeiting and the crime of contract fraud
The boundary between the crime of patent counterfeiting and the crime of contract fraud is generally clear, but in the behavior of the crime of counterfeiting patent In the case, there is a situation where "using someone else's patent number in a contract without permission causes people to mistake the technology involved in the contract as someone else's patented technology." If this behavior constitutes the crime of patent counterfeiting, there is There may be an imaginary competition relationship with the crime of contract fraud, because this behavior involves the use of false content in the contract and may become a means of contract fraud. The key to judgment is whether the actor's purpose of counterfeiting other people's patents in the contract is to defraud others of property through the contract, and whether the act of counterfeiting other people's patents becomes a means of contract fraud.
If the perpetrator only counterfeits the patent of others in the signed contract, but does not have the purpose of defrauding others of property, and later actually performs the patent in accordance with the contract, he will only be guilty of the crime of patent counterfeiting. Even if a dispute arises during the performance of the contract, it is a general civil dispute and does not constitute the crime of contract fraud. If the actor commits fraud through a contract with the purpose of defrauding others of their property, and at the same time uses counterfeiting of other people's patents in the contract as a means, then the two crimes of patent counterfeiting and contract fraud are established. There is an imaginary competing relationship between them, and they should Choose a serious crime and punish it.
(6) The distinction between the crime of bill fraud, the crime of financial certificate fraud and the crime of contract fraud
The distinction between the crime of bill fraud, the crime of financial certificate fraud and the crime of contract fraud. The crime of contract fraud, the crime of bill fraud, and the crime of financial certificate fraud are all special fraud crimes and have the essential characteristics of fraud, but they are different in the objects of infringement and specific behavioral methods. From the perspective of crime objects, the three crimes all infringe upon the property ownership of others, but the crime of contract fraud also infringes on the national contract management system, and the crimes of bill fraud and financial certificate fraud infringe on the national financial management order. From the perspective of objective elements, the crime of contract fraud, bill fraud, and financial certificate fraud are all objectively manifested in the use of fictitious facts and concealment of the truth, so that the other party is deceived, believes the crime, and "voluntarily" hands over the property. However, the crime of contract fraud is to use the signing and performance of contracts as a means of deception to illegally possess other people's advance payments, goods, payment or guaranteed property; while the crime of bill fraud and financial certificate fraud is the crime of the perpetrator using false financial bills or Bank settlement vouchers are used as criminal means to illegally possess other people's property. In the process of signing and performing a contract, using false bills or bank settlement certificates to pay the contract price to defraud the other party of property will lead to the three crimes intersecting in the behavior. In accordance with the principle of prohibiting repeated evaluations in the criminal law, "using false bills or bank settlement certificates to defraud the other party's property" Or the bank settlement voucher is used to pay the contract price to defraud the other party of property. This harmful behavior should only be given a criminal law evaluation based on one of the elements of a crime. This kind of actor committed a criminal act, but violated several criminal law norms at the same time. The situation that formally meets the constitution of several different crimes is a theoretical coincidence of legal provisions. Therefore, judging from the relationship between the crime of contract fraud, the crime of bill fraud, and the crime of financial certificate fraud, there is a cross-competition relationship, and the principle of valuing law over light law should be applied. Judging from the statutory penalties for the crime of bill fraud, financial certificate fraud and contract fraud, the statutory penalties for the crime of bill fraud and financial certificate fraud are heavier than the crime of contract fraud. Therefore, when cross competition occurs, the crime of bill fraud, financial certificate fraud, etc. Convicted and punished for financial certificate fraud.
It should be pointed out that if the perpetrator commits fraud by using forged, altered, or invalidated bills as contract guarantees, Article 224(2) of the Criminal Law clearly stipulates that it is contract fraud. The objective form of expression does not conform to the behavioral characteristics of directly defrauding the victim of property by using false bills for settlement in the crime of bill fraud. According to the principle of statutory crime and punishment, he should be convicted and sentenced for the crime of contract fraud.
Legal basis:
"Criminal Law of the People's Republic of China"
Article 224: Illegal possession under any of the following circumstances For the purpose of defrauding the other party of property during the signing and performance of a contract, and the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined; if the amount is huge or there are other serious circumstances, he shall be sentenced to more than three years A person shall be sentenced to fixed-term imprisonment of 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 ten years or life imprisonment and shall also be fined or his property shall be confiscated:
(1) Making a fictitious unit or sign a contract in the name of another person;
(2) Use forged, altered, invalidated bills or other false property rights certificates as guarantee;
(3) Without the actual ability to perform, the other party is tempted to continue signing and performing the contract by first performing a small-amount contract or partially performing the contract;
(4) Accepting goods, payment for goods, advance payment or payment from the other party Guaranteeing property and then escaping;
(5) Using other methods to defraud the other party of property.