Contract Fraud Identified In The Study Of Difficult Problems

Contract fraud is China's 97 years in the increase in criminal charges, the new Penal Code will be a contract fraud was spun off from the fraud, to crack down on contract fraud has far-reaching significance. Equal and civil contract is between the main sense of freedom and faith-based expression arising from the contract, the civil law contract actions are merely the acts carrying out the basic requirements, so as to reflect the equality, freedom of the legislative ideas, but human nature is greedy, and any legal is also not perfect, and a high degree of autonomy of private law system as part of human nature would make manifestation of the legitimate freedom of wearing a cloak of the use of private law contracts vigorously amassing wealth,seriously disrupted trade order has been bound by private law alone can not achieve the purpose of regulating the market, when we should help to deter the criminal law to combat these illegal acts.However, in practice the administration of justice trial of contract fraud and other issues specific application there is no explanation, the author, as a justice practitioners, on the current contract fraud on the specific application problems encountered quite touched, this article is from a contract fraud constitutes a crime and other acts of distinction and so on to describe, exchange and discuss the crimes, focus on the subjective and the objective of this crime in the judicial practice in how to correctly grasp with a view to contribute to the judicial practice of this crime can be accurately determined.1,contract fraud identification and objective behavior. The crime objective performance is that, in signing, to perform the contract process, based on fictitious facts and conceal the truth of the method of obtaining the other party property, a relatively large amount of behavior. (A) whether the acts have the ability to actually carry out the identification. Determined whether the perpetrator's actual ability to perform the contract, the signing of the contract should be the perpetrator or the supply of credit conditions as a basis.Whether the person is competent to perform acts of capacity, whether it is fraud, not just to see if he signed a contract before they have a discharge capacity, but rather depends on whether the perpetrator can carry out pre-contract capacity.(B) the means of deception and deceit caused by misconceptions, as well as based on an incorrect understanding of the voluntary delivery of property. Deception is often used to conceal the truth, hide the truth, so that a wrong understanding of each other, and voluntarily entered into a contract. Deception is the actors take the initiative to use, fabricated non-existent facts to cover up the fact that objective, to achieve the purpose of signing the contract. (C) the use of fictitious or fraudulent use of another unit of the name of the contract fraud identification. Imaginary unit, is that units do not exist, or the unit existed prior to the signing of a contract, but in the time of the signing of a contract has been non-existent. The main assumption of character refers to the fraudulent use of another name, that is,the perpetrator to conceal their true identity, name, unit name, in the signing of the performance of the contract to use someone else's identity, name, unit name. Fraudulent use of the body there is a problem, and that is "fraudulent use" should be divided against whom it is against the other party or person is fraudulent? The perpetrator used the name of others, the knowledge of the other party called the fraudulent use of time, or those who have been falsely called without the knowledge of fraudulent use? I believe that being aware of fraudulent use of those who do not allow circumstances, would constitute fraudulent use can not be narrowly defined as long as not their own identity, name, that is, fraudulent use.Second, subjective identification of fraudulent contracts. (A) the subjective intent to defraud the contract should be as direct intentional.Contract intentional fraud is only the direct intentional acts of people use for obtaining property by deception, subjective, or the pursuit of this outcome is to happen, from our theory of criminal law on the criminal intention, such a deliberate form of direct intentional, is a direct intentional characteristics.(B) With regard to the purpose of contract fraud and illegal possession of identification. Whether the perpetrator's subjective purpose of illegal possession of no doubt that this crime of fraud the contract is to distinguish between the crime and boundaries, I think,fraud in the contract the purpose of illegal possession of judging can not be based solely on the perpetrator of the acts of an objective performance-based which should be discussed in front of fraudulent acts such as the identification of objective methods combining a comprehensive analysis of a perpetrator to be a whole series of objective performance and determined that the perpetrator act is illegal,criminal nature. Complex and diverse cases of contract fraud, illegal possession of intentionally produced variety stages, resulting in a stage sometimes a direct impact on contract fraud legal or illegal.(C) the illegal possession and illegal occupation of the difference. Criminal law on the illegal occupation of there and illegal occupation is different. Occupation is not a possession, illegal possession of a violation of property rights, all the powers and functions, while the illegal occupation of property is only violated the right to use.There are different between the two, but also there is a link, long-term occupation, there is no intent to return can be transformed into possession.Third, contract fraud and other crimes and acts of the difference. (A) Contract fraud and other fraud type of crime the difference.The crime was spun off from fraud are a special type of fraud, the difference between ordinary fraud is the deceptive tactics of the signing of a contract or performance of the contract. With other types of criminal fraud there is sometimes the difference between Lapping of Legal Provisions, Implicated Offense and other issues, when necessary, as the case qualitative.Fraud in the contract terms are easily confused with the concept of the second paragraph, that is counterfeit, altered, disposed of property rights bills or other proof of a false security. For example,the perpetrator of the fraudulent use of false bills to implement the loan behavior, although it may constitute a loan-related fraud, notes three charges of fraud and contract fraud, but under the "special law applicable principles of priority," Implicated Offense "choosing a felony punishment principle" and so on, should be Notes fraud punished. (B) the contract fraud and contract disputes difference. Contract fraud and contract disputes are often intersect together Legal or Illegal is also very easy to confuse the boundaries.Contract fraud and contract disputes, there are many approximation of the Office:first, both of which arise from the process of civil acts, and are based on the same form;second, in the performance of the contract process, the obligations under the contract are not fulfilled or not fulfilled; third, fraudulent contracts objectively manifested as fictitious facts and conceal the truth, a contract dispute in the party sometimes accompanied by a certain degree of deception; fourth, both of which are illegal possession of a specific material..However, there are substantial differences between the two.Perpetrator whether the subjective effects of illegal possession of the other party is designed to distinguish between the two.(C) the contract fraud and contract fraud difference. Civil contract fraud and contract fraud how to distinguish the key is to grasp whether the perpetrator for the purpose of illegal possession and illegal possession from the behavior of people is the purpose of obtaining benefits after the signing of the contract the way to reflect them. A subjective intention to contract fraud, illegal possession of purpose, the purpose of illegal possession of a stage produced the perpetrator of the fraud and in the signing of the act during the performance of the contract were the identification of different manifestations, which are different from contract fraud and contract fraud, the standard.fourth, the contract fraud in the judicial practice of other issues.In judicial practice, there have been many through the fabrication of evidence and in a contract dispute in the name of the people's court file a lawsuit in the Court's decision reached by the relative side effects possession of a contract the purpose of litigation fraud, was not yet present, China's Criminal Law stipulates that theorists dispute is also very large, in this, I talk about my feelings.Litigation fraud triangle belongs to a kind of deception, fraud triangle is deceived by the loss of the principal and the victim is not the same side, typical of the court litigation fraud cheated, the other party affected by the loss of fraud triangle. Therefore,the proceedings of fraud, criminal punishment is necessary.I, as a practical worker, contract fraud and other economic categories of crime has deep feelings, this paper contract fraud identification, subjective and objective aspects of a detailed proof in order to achieve an accurate grasp of contract fraud and the crime of identified some superficial views on theoretical issues.