Fraud (Article 266 of the Criminal Law) refers to the illegal possession for the purpose of using fictitious facts or concealment of the truth, fraudulent acquisition of a larger amount of public and private property behavior.
Two, the criminal constitution
(a) Object elements
The object violated by this crime is the ownership of public and private property. Some criminal activities, although also use some deception, and even also the pursuit of some illegal economic benefits, but because of its violation of the object is not or not limited to the ownership of public and private property. Therefore, it does not constitute the crime of fraud. For example, the abduction and sale of women and children is a crime against personal rights.
The object of infringement of the crime of fraud is limited to the state, collective or individual property, rather than cheating other illegal benefits. Its object, too, shall exclude loans from financial institutions. This is because the offense of loan fraud has been specifically provided for in Article 193 of this Law.
(2) objective elements
This crime is objectively manifested in the use of fraudulent methods to obtain a large amount of public and private property. First of all, the perpetrator of fraudulent behavior, fraudulent behavior from the form of two categories, one is a fictitious fact, the second is to conceal the truth; from the substance is to make the victim into the wrong understanding of the behavior. The content of the fraudulent act is, in the specific situation, the victim will produce a false understanding, and make the property disposition desired by the perpetrator, therefore, whether it is a fiction, concealment of the facts of the past, or the present and future facts, as long as the content of the above is a fraudulent act. If the content of the fraud is not such as to cause them to make a disposition of property, it is not a fraudulent act for the crime of fraud. The fraud must reach a level that enables the average person to create a false perception, and the exaggeration of the goods one sells is not a fraud if it is not beyond the tolerance of the society. There is no restriction on the means and methods of fraudulent acts, which can be either verbal fraud or action fraud; the fraudulent act itself can be either an act or an omission, i.e., if there is an obligation to inform of a certain fact but does not fulfill such an obligation, so as to cause the other party to fall into a false understanding or to continue to fall into a false understanding, and the perpetrator takes advantage of the error of such an understanding to obtain the property, the act of fraud is also a fraudulent act. According to Article 300 of this Law, those who organize and make use of a meeting of the Taoist sect, a cult organization or use superstition to obtain property by deception shall be punished for fraud.
The act of fraud causes the other party to have a wrong understanding, and the other party's wrong understanding is the result of the perpetrator's fraud; even if the other party has some error in judgment, it does not prevent the establishment of the fraudulent act. Between the fraud and the other party to dispose of property, must be mediated by the other party's misperception; if the other party is not due to the fraud to produce misperception and dispose of property, it is not established fraud. The other party to the fraudulent act is only required to be a person with the authority or status to dispose of property, and is not required to be the owner or possessor of the property. The act of filing a civil lawsuit as a means of providing false statements and presenting false evidence, so that the court makes a judgment in their favor and thus obtains property, is known as litigation fraud, and is established as a crime of fraud.
The establishment of the crime of fraud requires the victim to dispose of the property after falling into the wrong understanding, and the disposal of property includes the act of disposal and the awareness of disposal. Such a requirement is made in order to distinguish between the crime of fraud and theft. Disposal of property is manifested in the direct delivery of property, or a promise that the perpetrator will acquire property, or a promise to transfer property interests. A perpetrator who commits fraud to cause another person to give up property, and the perpetrator picks up the property, shall also be punished for fraud. However, the act of putting metal pieces similar to coins into a vending machine and thus obtaining the goods in the vending machine does not constitute the crime of fraud, but only the crime of theft.
Fraud makes the victim dispose of the property, the perpetrator then obtains the property, so that the victim's property is damaged, according to the provisions of this article, fraudulent public and private property in a larger amount to constitute a crime. According to the relevant judicial interpretations, the larger amount of fraud, to 2000 yuan as a starting point. However, 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 examined is whether the crime of fraud is established when the perpetrator uses fraudulent methods to obtain property, but at the same time pays for items of considerable value? Some people believe that the damage caused by fraud refers to the reduction of the victim's overall property, so the above behavior does not establish the crime of fraud; some people believe that it is the loss of the victim's individual property, so the above behavior is still established the crime of fraud; there are also people who believe that the crime of fraud is an infringement of the trust and honesty, does not require the occurrence of property damage. We believe that the crime of fraud is a crime against individual property, not against property as a whole. The victim was defrauded to spend 30,000 yuan to buy 30,000 yuan of goods, although the property as a whole was not damaged, but from the point of view of the individual property, if there is no fraud of the perpetrator, the victim will not spend 30,000 yuan to buy the goods, and spending 30,000 yuan is the damage to the individual property. Therefore, the use of fraudulent means to cause others to fall into a false sense of fraudulent acquisition of property, even if the payment of a considerable value of the goods, should be recognized as fraud.
The crime of fraud is not limited to the fraudulent acquisition of tangible things, but also includes the fraudulent acquisition of intangible things and property interests. According to the relevant provisions of Article 2l0 of this Law, the use of deception to obtain special invoices for value-added tax or even other invoices that can be used to fraudulently obtain out-of-home tax refunds, tax credits, the crime of fraud is established.
(C) the main elements
The main body of this crime is the general subject, where the legal age of criminal responsibility, with the ability to criminal responsibility of the natural person can constitute this crime.
(4) subjective elements
The subjective aspect of this crime is direct intent and the purpose of illegal possession of public and private property.
Three, the determination
(a) the boundaries of this crime and non-crime
l, the boundaries of fraud and lending behavior. The borrower for some reason, a long time in arrears, or fabricate lies or conceal the truth and fraudulent payments, due to be unable to repay, as long as there is no illegal possession of the purpose, and not squandered, do not renege on the debt, no longer make falsehoods to deceive people, and indeed intends to repay, is still a borrowing and lending disputes, does not constitute a crime of fraud.
2, the boundaries of fraud and shopping on behalf of people in arrears. On behalf of people to buy goods in short supply in the name of taking the money, did not buy things, and unauthorized misappropriation of the money, arrears of non-repayment of the act, should focus on its true purpose, the relationship between the two sides, the cause of the matter, on behalf of the specific behavior of the person, the circumstances of the arrears of the consequences, and so on, so as to correctly determine whether it has the intention of unlawful appropriation. If you can clearly want to shop on behalf of others, for some reason failed to buy the misappropriation is still intended to return, can not be punished for fraud. If the name of shopping on behalf of the practice of fraud, cheat a large amount of property, squandering, have no intention to return, but also the inability to return, should be punished for fraud.
3, the crime of fraud and capitalization of business due to losses to avoid the boundaries of the debt. If it is indeed capitalized business enterprise, but due to poor management, loss of debt, to avoid debt and go out, is still a property debt dispute. This with the fraudster in the name of capital raising enterprises, money on the run to realize the purpose of their illegal possession, there is a fundamental difference.
(2) the boundaries of this crime and the crime of solicitation
both use deception, the latter may also obtain property benefits, these two points are the same; however, the subjective purpose, criminal means, the amount of property required and the violation of the object, are different. Soliciting crime is to cheat all kinds of illegal benefits for the purpose of posing as a state official, soliciting activities, is the damage to the prestige of the state organs, public **** interests or the legitimate rights and interests of citizens, it is cheated not only include property (but no amount of how much limitations), but also work, position, status, honor and so on, belongs to the crime of impeding the order of social management. When criminals posing as state officials to cheat public and private property, it violates the property rights, and damage to the prestige and normal activities of state organs, is a guilt by association, should be in accordance with the main object violated by the behavior and the main harm to determine the crime and the heavier punishment. If the amount of fraudulent property is not large, but seriously undermined the prestige of the state organs, should be dealt with according to the crime of solicitation; on the contrary, it is defined as fraud, and if the serious violation of the two objects, generally in accordance with the principle of a felony punishment according to the crime of fraud; if the successive independent of each other, not involved in two crimes should be dealt with in accordance with the principle of concurrent punishments.
(C) the boundaries of this crime and other fraud crimes under this law
This law in the remaining chapters of the crime of fund-raising fraud, loan fraud, financial instrument fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud, contract fraud. These fraud crimes and this crime in the subjective aspect and objective performance are the same, but in the subject, the means of crime, the subject elements and objects are different, easier to distinguish. This article because of this provision, "This Law provides otherwise, in accordance with the provisions."
Four, the penalty
l, guilty of this crime, shall be sentenced to less than three years of fixed-term imprisonment, detention or control, and or a single fine;
2, the amount of a huge or other serious circumstances, shall be sentenced to more than three years than ten years of fixed-term imprisonment, and shall be punished with a fine;
3, the amount of a particularly large or other particularly serious circumstances, shall be sentenced to more than ten years of fixed-term imprisonment or life imprisonment. fixed-term imprisonment or life imprisonment, and a fine or confiscation of property.
According to the provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases (December 16, 1996): if an individual defrauds a public or private property of more than 2,000 yuan, it is a "large amount"; if an individual defrauds a public or private property of more than 30,000 yuan, it is a "huge amount". "huge amount".
Individuals who defrauded public and private property of more than 200,000 yuan, the amount of fraud is particularly large. The amount of fraud is particularly large is recognized as fraud crime "particularly serious circumstances" of an important element, but not the only plot. Fraud amount of more than 100,000 yuan, and one of the following circumstances, should also be recognized as "particularly serious circumstances":
(1) the fraud group of the prime mover or *** with the main offender in the seriousness of the crime of fraud;
(2) recidivism or roving crimes serious harm;
(3) fraudulent legal persons, other organizations or individuals in urgent need of production materials, seriously affecting production or causing other serious losses;
(4) fraudulent disaster relief, emergency rescue, flood control, preferential treatment, relief, medical supplies, resulting in serious consequences;
(5) squandering of fraudulent property, resulting in the fraudulent property can not be returned;
(6) the use of fraudulent property to carry out illegal and criminal activities;
(7) having been criminally punished for fraud;
(8) causing the victim's death, mental disorder or other serious consequences;
(9) having other serious circumstances.
If the competent person directly responsible for the unit and other directly responsible persons commit fraud in the name of the unit, and the proceeds of fraud go to the unit, and the amount is from 50,000 yuan to more than 1,000,000 yuan, the above persons shall be held criminally liable in accordance with the provisions of Article 152 of this Law; and if the amount is from 200,000 yuan to more than 300,000 yuan, the above persons shall be held criminally liable in accordance with the provisions of Article L52 of this Law.
The crime of *** with fraud, the amount of the crime shall be determined by the amount of the perpetrator's participation in the *** with fraud, and combined with the perpetrator's position in the *** with the crime, the role and the amount of illegal gains and other circumstances shall be punished in accordance with the law,
has embarked on the implementation of fraud, only due to reasons other than the will of the perpetrator did not obtain the property is an attempt to defraud. Attempted fraud, the circumstances are serious, should also be convicted and punished according to law,
Provinces, autonomous regions, municipalities directly under the Central Higher People's Court may, according to the economic development of the region, and taking into account the state of social security, in the "2,000 yuan to 4,000 yuan", "30,000 yuan to 50,000 yuan Within the range of "2,000 yuan to 4,000 yuan" and "30,000 yuan to 50,000 yuan", the Higher People's Courts of municipalities directly under the Central Government may, in accordance with the state of economic development in the region and taking into account the state of social security, respectively determine the amount of "larger amount" and "huge amount" of fraud committed by individuals in the region and the amount of fraud committed by a unit to be investigated for the criminal responsibility of the relevant persons, with reference to the amount stipulated in paragraph 4 of this Article. Application of the original Criminal Law Article 151 or Article l52 of the specific amount of standards, and report to the Supreme People's Court for the record.
V. Articles of Law and Judicial Interpretation
Criminal Law]
Article 266 Fraud of public or private property, where the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or control, and shall be fined in addition to or separately from a fine; where the amount is huge or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall be fined in addition to a fine; where the amount is especially huge or there are other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than ten years but not more than ten years. Where the amount is particularly large or there are other particularly serious circumstances, the penalty shall be fixed-term imprisonment of not less than ten years or life imprisonment, and a fine or confiscation of property. Where this Law provides otherwise, it shall do so in accordance with the provisions.
Second Paragraph of Article 210 Anyone who uses deception to obtain special value-added tax invoices or other invoices that can be used to fraudulently obtain export tax refunds or tax credits shall be convicted and punished in accordance with the provisions of Article 266 of this Law.
Article 269 Anyone who commits the crimes of theft, fraud or robbery and uses violence or threat of violence on the spot in order to conceal the stolen goods, resist arrest or destroy the evidence of the crime shall be convicted and punished in accordance with the provisions of Article 263 of this Law.
Article 300 (3): Anyone who organizes or makes use of the Huidao sect, a cult organization, or uses superstition to commit adultery against women or to defraud them of their property shall be convicted and punished in accordance with the provisions of Articles 236 and 266 of this Law, respectively.
Article 287 Anyone who utilizes a computer to commit financial fraud, theft, embezzlement, 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.
[Relevant Decisions]
The Decision of the Standing Committee of the National People's Congress on Safeguarding the Security of the Internet (2000.12.28) In order to protect the lawful rights of individuals, legal persons and other organizations in respect of their persons and property, any person who commits one of the following acts, which constitutes a criminal offence, shall be held criminally responsible in accordance with the relevant provisions of the Criminal Law: Using the Internet to commit theft or fraud, Extortion.
Judicial Interpretation]
According to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in Trial of Cases of Disturbing the Administrative Order of the Telecommunications Market, anyone who applies for network access with false or fraudulent identity documents and uses a cell phone, which results in a larger amount of loss of telecommunication tariffs, will be convicted of and punished for the crime of fraud in accordance with Article 266 of the Criminal Law.
Supreme People's Court "on the trial of fraud cases on the specific application of the law on a number of issues of the Interpretation" (1996.12.16 Fa Fa Fa 〔1996〕 No. 32)
For the purpose of lawfully punishing fraud criminal activities, according to the "Chinese People's **** and the State Criminal Law (hereinafter referred to as the "Criminal Law") and the "Decision of the Standing Committee of the National People's Congress on the punishment of crimes of undermining the financial order" (hereinafter referred to as the "Decision of the National People's Congress on the punishment of crimes of undermining the financial order"). Decision of the Standing Committee of the National People's Congress on the Punishment of Crimes Against the Financial Order (hereinafter referred to as the "Decision"), the relevant provisions of the trial of fraud cases on a number of specific issues are explained as follows:
One, according to the "Criminal Law" Article 151 and Article 152 of the provisions of the larger amount of fraudulent public or private property, constitutes the crime of fraud.
Individuals who defrauded public or private property of more than 2,000 yuan, belonging to the "larger amount"; individuals who defrauded public or private property of more than 30,000 yuan, belonging to the "large amount".
Individual fraud of public and private property more than 200,000 yuan, the amount of fraud is particularly large. The amount of fraud is particularly large is recognized as a fraud crime "particularly serious" an important element, but not the only plot. Fraud amount of more than 100,000 yuan, and one of the following circumstances, should also be recognized as "particularly serious circumstances":
(1) the fraud group of the prime mover or *** with the fraud in the crime of the main culprits in serious circumstances;
(2) recidivism or roaming crimes serious harm;
(3) fraudulent legal persons, other organizations or individuals in urgent need of means of production, seriously affecting production or causing other serious losses;
(4) fraudulent disaster relief, rescue, flood control, welfare, relief, medical funds, resulting in serious consequences;
(5) squandering of fraudulent property, resulting in the fraudulent property can not be returned;
(6) use of fraudulent property to carry out illegal and criminal activities;
(7) having been criminally punished for fraud;
(8) causing the victim's death, mental disorder or other serious consequences;
(9) having other serious circumstances.
The competent person directly responsible for the unit and other directly responsible personnel to commit fraud in the name of the unit, the proceeds of fraud to the unit, the amount of 50,000 to 100,000 yuan or more, shall be in accordance with the provisions of Article 151 of the Criminal Law to pursue the criminal liability of the above persons; the amount of 200,000 to 300,000 yuan or more, in accordance with Article 152 of the Criminal Law to pursue criminal liability of the above persons. criminal liability of such persons in accordance with the provisions of Article 152 of the Criminal Law.
The crime of **** with fraud, the amount of the crime shall be determined by the amount of the perpetrator's participation in the **** with fraud, and in combination with the perpetrator's status and role in the **** with crime and the amount of illegal gains, and other circumstances, shall be punished in accordance with the law.
It is an attempt to defraud if the act of defrauding has been carried out and the property has not been obtained for reasons other than the will of the perpetrator. If the attempted fraud is serious, it shall also be convicted and punished according to law.
The Higher People's Courts of the provinces, autonomous regions and municipalities directly under the central government may, in accordance with the economic development of the region and taking into account the state of public order, determine the amount of the "greater amount" for individual fraud and the amount of the "greater amount" for individual fraud, and determine the amount of the "greater amount" for individual fraud and the amount of the "lesser amount" for individual fraud, in accordance with the economic development of the region and taking into account the state of public order. (b) To determine, within the ranges of "2,000 yuan to 4,000 yuan" and "30,000 yuan to 50,000 yuan", respectively, the "larger amount" and "huge amount" of individual fraud, as well as the amount of fraud committed by a unit, to pursue the criminal liability of the relevant persons and to determine, with reference to the amount stipulated in Paragraph 4 of this Article, the specific amount standard applicable to Articles 151 or 152 of the Criminal Law. and report it to the Supreme People's Court for the record.
For multiple frauds and the return of the previous fraudulent property after the next fraudulent property, in calculating the amount of the fraud, the amount that has been returned prior to the crime shall be deducted, and the actual amount that has not been returned shall be determined, and the amount of multiple frauds may be taken into account as an aggravating circumstance in determining the sentence.
The perpetrator of the criminal activity of fraud, the seizure and freezing of property and its fruits, if the ownership is clear, shall be returned to the victim; if the ownership is not clear, the victim can be cheated according to the victim's money accounted for the total amount of the seizure and freezing of property and its palms of the proportion of the victim; if it can be determined that the seizure and freezing of property and its palms of the property does not belong to the victim of all the identified If it can be determined that the seized or frozen property and the interest thereon do not belong to the identified victim, but it cannot be returned to the unidentified victim, it shall be surrendered to the State Treasury in accordance with law.
The perpetrator of the fraudulent property has been used to return personal debts, payments or other economic activities, if the other party is aware of the fraudulent property and collect, is a malicious acquisition, shall be recovered; if it is indeed a bona fide acquisition, will not be recovered.
The monetary amount used in this explanation refers to the amount of RMB. If the hearing of a specific case involves foreign currency, it shall be converted into RMB in accordance with the foreign exchange rate announced by the State Administration of Foreign Exchange at the time of the act.
The "above" referred to in this explanation includes the present amount.
"The Supreme People's Court on the trial of fraud cases on the specific application of the law on a number of issues of the Interpretation" stipulates that individuals defrauding public and private property of more than 2,000 yuan, is a "large amount"; individuals defrauding public and private property of more than 30,000 yuan, is a "huge amount ". Individual fraud of public and private property of more than 200,000 yuan, the amount of fraud is particularly large. The amount of fraud is particularly large is to determine the fraud crime "particularly serious circumstances" of an important element, but not the only plot. Fraud amount of more than 100,000 yuan, but also one of the following circumstances, should also be recognized as "particularly serious circumstances": (1) fraud group of the prime mover or *** with the main offender in the seriousness of the crime of fraud; (2) recidivism or roaming serious harm; (3) fraud legal persons, other organizations or individuals in urgent need of means of production, seriously affecting production or causing other serious losses; (4) fraudulent disaster relief, rescue, flood control, welfare, relief, medical payments, resulting in serious consequences; (5) squandering fraudulent property, resulting in fraudulent property can not be returned; (6) the use of fraudulent property for illegal and criminal activities; (7) has been criminally sanctioned for fraud; (8) resulting in the death of the victim, insanity or other serious consequences; (9) with other serious circumstances.
The crime of *** with fraud, the amount of the crime shall be determined by the amount of the perpetrator's participation in *** with fraud, and combined with the perpetrator's status and role in *** with crime and the amount of illegal gains and other circumstances shall be punished according to law.