The Property Loss In The Crime Of Fraud

Although the crime of fraud is under property crime,due to the different aspects of criminal law’s protection of property interests and the characteristics of fraud,the connotation of its own legal interests and constituent elements will also be different from other crimes of wealth infringement."Property loss" as a result of the crime of fraud is the last element objectively required to establish the crime of fraud.Precise judgment of property loss is a necessary condition to accurately handle the crime of fraud.The connotation of property loss involves the understanding of the core concept of "legal property of property" in the crime of fraud and the determination of the criteria of "property" and "loss".These issues are the main content of this article.Affected by German and Japanese criminal law theory,the current research ideas in China regarding the legal benefits of property crime protection can be divided into two types.The first is the "ownership / possession" path: a discussion focusing on the doctrine of ownership and possession and the various intermediary theories derived from it;the second is the "legal / economic" path: the discussion of legal property theory and the concept of property in criminal law Confrontation of economic property.Through a comparative analysis of the two paths,combined with the specific situation of China’s judicial practice,this article argues that the legal benefit of fraud crime protection should adopt the "economic property theory." On the basis of clarifying the legal benefits of the crime of fraud,the positioning of "property loss" can also be resolved.Theoretically,there is a debate on whether "property loss" is an independent constituent element of the crime of fraud.This question is essentially a discussion on whether the crime of fraud is a crime against individual property or a crime against overall property.This article considers that the crime of fraud belongs to the crime of infringing on the entire property,and property loss is an essential part of the constituent elements of this type of crime.The "disposition of property" is theoretically easy to confuse with the "loss of property",which leads to the "reduction of property" is the result of the disposition of property,not the result of the constituent elements of the crime of fraud.When the element of property loss is clearly positioned at the objective level,the "illegal possession purpose" no longer needs to be reinforced by the "deprivation of all" intention,and the subjective "illegal possession purpose" of fraud is left with the meaning of "acquisition",Which can be more accurately understood as an illegal monetization intent.On the premise of the above analysis results,this article discusses the core issue in Chapter 3: the determination of "property" and "loss" in the crime of fraud.The first section discusses the scope of "property" in the crime of fraud.The "economic property theory" believes that as long as it can be converted into monetary value for calculation,it can be regarded as property,and property without monetary value cannot be the object of fraud.According to the economic attributes of property itself and China’s practical jurisprudence,this article argues that contraband and illegal but actually economically valuable interests should be protected by criminal law.The second section is a judgment on the "loss" of property in the crime of fraud.In the sense of the crime of fraud,the concept of property and the concept of property loss belong to the same issue,and different concepts of property can lead to different concepts of loss.This article chooses the concept of objective loss not only because the legal benefit of fraud crime protection is "economic property theory",but also because of its own objective attributes: the concept of objective loss is whether or not there is a loss of personal money value(objectively).In terms of the judgment of the "property loss" of fraud,the theoretical problems are mainly the disputes between the theory of individual property reduction and the overall property reduction,and whether "the purpose of the victim’s punishment" is the content of property loss.As far as the judgment of loss is concerned,the framework of the "modified overall property reduction theory" is worth promoting,that is,in principle,the overall economic value of the victim’s property before and after the disciplinary act is compared according to the objective criteria to determine whether the overall property has been damaged.However,when the social purpose of the actor in a case can be converted into economic value,it is considered as a factor of property loss.When calculating the amount of "return before the case",it is necessary to determine whether the time point for calculating "property loss" is at the end of the actor’s fraud,and then based on whether the property returned by the actor in the case can be deducted,Judging whether the infringing legal interests have the same identity.Regarding the "criminal cost" in the crime of fraud,it is necessary to focus on whether the loss of the victim and the act of the perpetrator have the same material,and insist that the net wealth loss of the victim after deducting the temptation is used as an entity to judge whether there is substantial property damage standard.