How To Evaluate The Fraudulence Act When In The Occasion Of The Payment For Illegal Reasons

In general conditions, the victims dispose their property due to misconception. When the victim not only carries the misconception subjectively but also illegal factors are involved, namely the victim makes payments for illegal reasons; can the fraudulence act constitute the crime of fraud? The question is concerned with the “payment for illegal reasons” concept of the civil law as well as the property concept of the criminal law.This paper first explains the system of the payment for illegal reasons. The payment for illegal reasons refers to the fact that the dan violates the jus cogens as well as the public and social conventions in making payments. According to the processing rules of the civil law, the payment for illegal reasons shall abide by the basic principles that no return payment shall be requested and other exceptions be taken into account. When the victim makes payment for illegal reasons, whether the doer shall be convicted of the crime of fraud is mainly determined by the property loss or damage. Given that different theories are established in the interpretation of legal interests of property in Germany, Japan, and China, this paper further analyzes the property concept of the criminal law.When it comes to the property, there are three types of theory in Germany: the economic property theory, the legal property theory, and the compromise theory. The economic property theory has the disadvantages of expanding the criminal punishment scope and damaging the unity of the Order Act, the legal property theory is undistributed in the property protection, and the compromise theory is more acceptable and proper compared with the first two theories. Japan has the origin right theory, the possession theory, and the middle theory in terms of the property. Both the origin right theory and the possession theory have defects, while the middle theory is an improved version based on correcting the limitations of the two theories mentioned above. And China has the ownership theory, the possession theory, and the mixture theory related to the property. Through the analysis, the mixture theory is more reasonable because the ownership theory fails to accommodate the complex changes of the property relationship and the possession theory has unsolvable defects in itself. Primarily the property should concern the ownership of public and private property and other origin rights, and then the property contains the interests that can be confiscated only through legal procedures.In the final part, this paper adopts examples to specifically discuss how to evaluate the behavior of doer by using the classified discussion when the victim pays property or estate for illegal reasons, and acts such as defrauding illegal labor and swindling the victim to exempt the illegal debt happen. In case of payment of property for illegal reasons, the property itself does not violate the laws; such property shall be either returned to the victim or confiscated by the relevant agency in China. So fraudulence act in such occasion entirely constitutes the crime of fraud. In case of defrauding illegal labor and swindling the victim to exempt the illegal debt, the property loss of the criminal law is not constituted because illegal labor and illegal debt are exclusionary illegal interests. Therefore, the fraudulence act does not constitute the crime of fraud.