The difference between the crime of contract fraud and the crime of fraud and the grasp of the conflict of application

First, the question raised

The difference between the crime of contract fraud and the crime of fraud is the difficult point in practice. In specific cases, defendants and defenders generally tend to defend and defend ordinary fraud in the direction of contract fraud. There are two main reasons for this phenomenon: First, the prosecution standard of contract fraud is higher than that of ordinary fraud. If A defrauds B of RMB (the same as the following currencies) 10,000 yuan by issuing IOU, if the behavior of A is identified as ordinary fraud, then A's behavior has reached the filing and prosecution standard of 3,000 to 10,000 yuan, which can constitute a crime of fraud; However, if the behavior of A is identified as contract fraud, then because the amount of fraud does not meet the filing and prosecution standard of contract fraud of 20,000 yuan, it does not constitute a contract fraud. Second, at present, there is no judicial interpretation of the increased statutory punishment of contract fraud clearly applicable standards, local judicial organs often adopt a conservative attitude, the amount of huge, or even a particularly huge amount of cases are still dealt with in accordance with the larger amount of cases, resulting in a relatively common phenomenon of felony light sentence.

In view of the above situation, it is necessary to analyze the difference between the crime of contract fraud and the crime of fraud and the conflict of application.

Second, the difference between the crime of contract fraud and fraud

(1) whether a contract has been concluded between the perpetrator and the victim

From the legislative source, the provisions of the current criminal law on the crime of contract fraud are formed on the basis of the Interpretation of the Supreme People's Court on Several Issues concerning the Specific Application of Law in the Trial of Fraud Cases (hereinafter referred to as the "1996 Interpretation", now repealed) issued in 1996. In view of the fact that China's market economy had just started at that time, and a large number of frauds carried out by economic contracts seriously disrupted the order of market economy development, Article 2 of the 1996 Interpretation clearly stipulates: "Those who use economic contracts to defraud others of a large amount of property constitute the crime of fraud." When the Criminal law was amended in 1997, the legislature considered the particularity and complexity of contract fraud and separated the crime of contract fraud from the crime of fraud. According to the provisions of Article 224 of the current Criminal law, the crime of contract fraud must occur in the process of signing and performing the contract.

Therefore, "contract" is an indispensable objective component of the crime of contract fraud, the lack of "contract" this basic component of the fraud does not constitute a crime of contract fraud. At the same time, according to the criminal law, the crime of contract fraud belongs to the crime of disturbing market order, so the content of the "contract" agreed in the crime of contract fraud must be adjusted by the market order, and the "contract" not adjusted by the market order or mainly not adjusted by the market order, such as the non-transactional gift contract, marriage, guardianship, adoption, maintenance and other identity relationship agreements. Labor contracts and administrative contracts, which are mainly regulated by labor laws and administrative laws, do not belong to "contracts" in the crime of contract fraud.

Regarding the form of "contract" in the crime of contract fraud, there are two views:

One view is that the "contract" in the crime of contract fraud must be a written contract, and the oral agreement does not belong to the contract in the crime of contract fraud. The main reasons are as follows: First, although Article 224 of the Criminal Law revises the "economic contract" in the 1996 Interpretation to "contract" when it separately stipulates the crime of contract fraud, the "Interpretation of the Criminal Law of the People's Republic of China" organized by the Legal Work Committee of the National People's Congress clearly states: "The 'contract' mentioned here mainly refers to various types of economic contracts protected by law, such as supply and marketing contracts, lending contracts, etc." According to the provisions of Article 3 of the Economic Contract Law (abolished when the contract law was implemented on October 1, 1999), "the economic contract shall be in written form except for the immediate settlement", so the "contract" in the crime of contract fraud must be a written contract. Second, the oral agreement is identified as the "contract" in the crime of contract fraud, not only has no practical significance, but it is easy to confuse the boundary between ordinary fraud and contract fraud.

Another view is that oral agreement is also a contract, the use of oral agreement to defraud other people's property behavior as contract fraud is in line with the intention of legislation.

Hillhouse believes that the former view is worth discussing. Article 3 of the Economic Contract Law on the form of the contract has been amended by the Contract Law. Compared with the economic contract law in 1999, the principle of autonomy of will is introduced to the maximum extent, the scope of the contracting subject is more extensive, and the form of contract is more free. In addition to the law clearly stipulates the formal contract, whether the contract is in written form does not affect the formation of the contract, nor does it affect the effectiveness of the contract.

Therefore, restricting the "contract" in the crime of contract fraud to written form is inconsistent with the current legal provisions and the development of the concept of rule of law. Under the premise of determining that "contract" is the basic element of the crime of contract fraud, the next thing to be clear is whether as long as the perpetrator and the victim conclude a contract to defraud the property, it constitutes the crime of contract fraud? This needs to discuss the second difference between the crime of contract fraud and the crime of fraud.

(2) Whether the actor carries out economic activities related to the contract

1. From the analysis of legislative spirit and provisions, the perpetrator of the crime of contract fraud must carry out economic activities related to the content of the contract. The introduction of the 1996 Interpretation was aimed at curbing the development trend of defrauding property through economic contracts at that time. Although "economic contract" was not adopted when the criminal law was amended in 1997, but the expression of "contract", the legislative intent is still to severely crack down on fraud crimes carried out by economic contract. This point can be corroborated from the relevant interpretation prepared by the Legal Affairs Committee of the National People's Congress. Based on the above legislative psychoanalysis, combined with the current criminal law on the time and space of contract fraud, in order to identify the crime of contract fraud, the perpetrator must carry out economic activities related to the content of the contract, that is, have preparatory, management and business activities related to the signing and performance of the contract. Even if the rights and obligations of both parties in the process of economic activities are clearly defined in the contract terms, but the actor does not exist any preparation, management, business activities, does not constitute the crime of contract fraud.

2. From the classification of charges, in the crime of contract fraud, the perpetrator must carry out economic activities related to the content of the contract. From the classification of charges, the sub-provisions of Criminal law stipulate the crime of contract fraud in the third chapter of the crime of destroying the socialist market economic order, and the crime of fraud in the fifth chapter of the crime of property infringement. This type of arrangement reflects the legislator's different emphasis on the evaluation indicators of contract fraud and fraud. The crime of contract fraud is a kind of crime that destroys the order of market economy. Although the object of crime includes the order of market economy and the property rights of citizens, the evaluation of the crime is more focused on the destruction of the order of market economy. However, the object of the crime of fraud is only the property rights of citizens, and the evaluation of crime responsibility closely revolves around the subjective and objective degree of the violation of the property rights of citizens. Since the object of the crime of contract fraud is to disturb the order of the market economy, it must require the perpetrator to carry out economic activities that disturb the order of the market. In the modern idea of the rule of law, not only the objective attribution of crime is emphasized, but also the subjective attribution of crime is emphasized. If the actor objectively does not carry out any economic activities related to the content of the contract, the "contract" means that it is only a prop, which does not substantially disrupt the order of the market economy, but only infringes on the property rights of others.

(3) whether the "contract" is the main reason for causing the victim to fall into the wrong understanding and make property disposal

Even if the perpetrator and the victim have entered into a contract, and the perpetrator has carried out economic activities related to the content of the contract, it is not enough to identify the crime of contract fraud, and it must also be required that the contract is the main reason that causes the victim to fall into the wrong understanding and make property disposal. This is the third difference between the crime of contract fraud and the crime of fraud. The leading role of "contract" in the property disposal of victims is mainly reflected in two aspects: First, it leads to the property disposal of victims based on the interests agreed in the contract. The second is the protection function based on the contract, which leads to the victim's property disposal. If the victim fell into understanding and made property disposal has nothing to do with the contract between the actor and the victim, it does not constitute the crime of contract fraud. Taking a fraud case as an example, A defrauded B of 1 million yuan by concealing facts. After B found A and asked to return the cheated property. A falsely claimed that the relevant property had been invested in the real estate market, and after negotiation, A and B signed a real estate cooperation contract. After B found that the real estate project does not exist, then to the judicial organs to Sue the case. In this case, the victim fell into the wrong understanding of the property processing and the contract has no causal relationship, so it does not constitute the crime of contract fraud, but should be identified as fraud.

Third, on the contract fraud crime and fraud crime to grasp the applicable conflict

Regarding the conflict between contract fraud and fraud, the practice mainly focuses on whether the crime of fraud can be convicted and punished under the circumstance that the crime of contract fraud is not constituted. There are two main views:

One view is that if the crime of contract fraud is not constituted, if it meets the standards for filing and prosecution of the crime of fraud, or if the way of fraud does not belong to the circumstances explicitly listed in Article 224 of the Criminal Law, the crime of fraud can be convicted and punished. The main reason is that the crime of contract fraud and the crime of fraud belong to the relationship between special and general articles of law, and the special charges can not be identified, but the general charges can be identified.

Another view is that the crime of contract fraud is an independent crime separated from the crime of fraud. According to the principle that the special law is superior to the general law and Article 266 of the Criminal Law, "If this law provides otherwise, in accordance with the provisions", those who constitute the crime of contract fraud shall not be convicted and punished as the crime of fraud; If it does not constitute the crime of contract fraud, it shall not be convicted and punished as the crime of fraud. Just as the crime of credit card fraud is a special crime of fraud, such as overdraft credit card fraud, if the court does not constitute a crime of credit card fraud, it should not be convicted and punished for fraud.

Hillhouse believes that this problem can not be generalized. For the type of contract fraud listed in the criminal law, according to the principles of special law and general law, the crime of contract fraud should be convicted and punished; For the type of contract fraud listed in the criminal law, which does not meet the standards of filing and prosecuting the crime of contract fraud, it should not be investigated for criminal responsibility with the crime of fraud. If the documented evidence can neither prove nor exclude the type of contract fraud listed in the criminal law, it does not constitute the crime of contract fraud, but constitutes the crime of fraud, it can be convicted and punished. For individual cases interspersed with the implementation of contract fraud and fraud, does not constitute a crime of contract fraud, but constitutes a crime of fraud, can be convicted and punished for fraud.