On The Standard Of Judicial Determination Of The Validity Of Contract In Crime Of Contract Swindling

The validity of contract in the crossed case of civil law and criminal law,especially the validity of involved contract in the crime of contract swindling is a difficult problem in the judgement.Although the relevant laws and judicial interpretations occasionally involve it,they are not complete.The study on this issue has a special effect on the crossing field of criminal law and civil law and is of great significance for guiding the judicial practice.In the theoretical cycle,there have been opinions of contract invalidation,contract modifiability and reversibility,differential treatment and no foundation of validity(no necessary judgement).The opinion of contract invalidation has the deep-rooted concept of attaching great importance to criminal law but looking down upon civil law and tends to go against the protection of individual right;the opinion of no foundation directly deprives the contract counterpart of the right of appeal and is too opinionated;the opinion of modifiability and reversibility and that of differential treatment are not complete and thorough.All these opinions have deficiencies in the identification standard of contract validity and neglects the selection of will.A diversified judgement should be made on the validity of contract;although the actor violates the criminal law and constitutes a crime,it belongs to severe fraudulent conduct on the involved contract and this conduct does not cause losses to national interests or public order;hence,the validity of this conduct should be in pending status and the injured party is entitled to change or revoke;the contract shall be valid if the injured party fails to exercise this right.Starting with the discussion of the intersecting and difficult cases in judicial practice,by collecting data,analyzing and comparing domestic and foreign laws,combining the specific circumstances of contract fraud and contract fraud in judicial practice,the relationship between criminal and contract effectiveness is combed,and the problem of contract effectiveness in the crime of contract fraud is systematically expounded.The construction of the judicial determination standard of the validity of contract in the crime of contract fraud.Based on the latest research results in the field of criminal and civil law,this paper adopts the methods of literature research and case analysis to propose a general idea to solve the problem of contract effectiveness in the crime of contract fraud,and hope to help the referee of such problems in the judicial practice.In brief,criminal law is undertaking the task of fighting crimes and protecting people,but there are no conflicts between punishing criminal offenders and protecting private rights of injured party;the penal offence should be determined by criminal law and civil issues should be judged by civil law;if the invalid conditions in civil law do not exist,the contract should not considered to be invalid even if it constitutes a crime penally and the right of choice should be given to the actor according to actual condition;in the trial,it should be evaluated according to criminal law and civil law separately.