An Analysis Of The Problem Of Disciplinary Consciousness

With the increasing frequency of market transactions and the popularization of new payment methods,criminals' use of fraudulent means to obtain money is also inevitable.In recent years,the number of "staggered" types of cases in China has been increasing,such as Ding Xiaojun's fraud and Chen Jinfu's theft.In such cases,the perpetrator often used both fraud and secret stealing.The two methods are "complementary and indispensable" in the event of "victim property loss".Therefore,the final characterization of the case has caused troubles,and the boundary between the crime of fraud and theft is urgently needed in judicial practice.It is said that the "disposition" of victims in the crime of fraud is the key to distinguishing between theft and fraud.The property loss of the victim in the theft is caused by the actor breaking the possession of the original owner,while the property loss in the crime of fraud is caused by the victim's voluntary voluntary delivery based on a wrong understanding.Behaviour of property.However,there are different opinions on whether the establishment of "disposition" in the criminal law theoretical field requires subjective consciousness of punishment.Some scholars argue that the punishment consciousness is only a conclusion reached through incomplete induction,and it does not mean that the victims of all fraud cases must have the punishment consciousness.Even if there is no awareness of disciplinary action,the victim's voluntary delivery of property is fully in line with the crime of fraud.The objection isthat the typical characteristic of fraud cases is that the victims are "voluntary delivery" in the delivery of property.The victim's "voluntary delivery" cannot only be superficially understood.Active delivery in objective behavior is not enough.It is also necessary to have a clear understanding of one's own behavior.Without a sense of punishment,fraud cannot be found.The inconsistency of opinions in the theory of criminal law leads to the phenomenon of different judgments in the same case in judicial practice.The author tries to study the issues related to the awareness of punishment,clarify the specific connotation of punishment consciousness,and re-examine the status of punishment consciousness in the constituent elements of punishment,in order to provide some immature Comments for reference.This article is divided into three chapters:The first chapter of the first chapter,the author through the selection of two real cases occurred in judicial practice: Chen Jinfu theft case and Zhang Hangjun fraud case,combed the court's conviction ideas in practice for such "victims lack of punishment" cases.It can be seen that there are major differences between different courts' definitions of "dispositional conduct" and "dispositional awareness",as well as the necessity of dispositional awareness.This is also the root cause of the phenomenon of different judgments in the same case.The second section mainly expounds the basic theoretical issues related to the disciplinary consciousness.By defining the nature of disciplinary behavior,the conceptual connotation of disciplinary consciousness and misunderstanding,the basic theoretical issues are clarified to avoid conceptual confusion.The main content of the second chapter is the theoretical controversy about the necessity of punishment consciousness.Regarding this issue,there are currently three viewpoints in the academic world: the need to deal with consciousness,not to deal with consciousness,and the distinction.According to the different criminal targets,the "differentiation theory" proposes that: in order to distinguish between theft and fraud in the presence of physical objects,the victim is required to have a sense ofpunishment;in the case of property interests,in order to avoid the formation of punishment loopholes,relax the restrictions on subjective conditions,Requires disciplinary awareness.By examining the theoretical and practical circles of criminal law at home and abroad,and researching and judging China's practical cases and doctrines,this article puts forward the viewpoint of this article,which is to clearly advocate the "necessary theory of punishment consciousness".The "don't talk about punishment consciousness" was refuted from the following perspectives: 1.The distinction between criminal means and types of crimes;2.The theory of indirect principals applying the crime of theft can completely explain the problem of so-called punishment loopholes.It further demonstrates the rationality of the "necessary theory of punishment consciousness" from the following perspectives: 1.the structure and characteristics of the crime of fraud itself;2.the actual situation of legislation in China;3.the correlation between punishment ability and punishment consciousness.The third chapter mainly clarifies the specific content of punishment consciousness.There are two perspectives on the specific content of punishment consciousness: the theory of strict punishment and the theory of ease of punishment."Strictly speaking" advocates that the disciplinary person must have a comprehensive understanding of the nature of the object,including the type and quantity of the property;"Easing theory" advocates that as long as the victim recognizes the transfer of the shape of the property,the victim is not required to Comprehensive understanding of nature."Strictly speaking" is unreasonable: the content of misunderstanding is included in the scope of disciplinary consciousness.On the basis of the "relaxation theory" viewpoint,according to the different objects,the content of punishment consciousness is defined for property and property interests.In crimes that target property,as long as the victim recognizes the transfer of possession on the "overall appearance" of the property,he can be deemed to have a disciplinary consciousness,and does not require a precise understanding of the nature of the specific content therein.For the interests of property companies,victims are alsorequired to realize that they have transferred the possession of their interests to the other party,but it is not limited to the division of rights in civil law.The “transfer of possession” here includes the possibility of giving up the realization of creditor's rights on the spot.