On The Distinction Of Contract Fraud And Civil Contract Fraud

Along with the rapid development of market economy,contracts play an increasingly important role among various transaction entities,and contract violations are also more and more prominent.The criminal aspects are mainly contract fraud,and the civil aspects are mainly manifested as civil contract fraud.This problem has become a focus in judicial practice in our country.Although our country’s current laws have relatively clear provisions on the concept of them,it is still difficult to accurately distinguish between the two in reality.Based on a typical judicial practice case,this paper makes a detailed analysis of the concept,constituent elements,demarcation criteria and identification of the purpose of illegal possession of contract fraud and civil contract fraud.The issue of the intersection of criminal and civil has been elaborated.Although the current laws of China have relatively clear provisions on the two concepts,it is still difficult to accurately distinguish them in reality.Based on a typical judicial practice case,this article makes a detailed analysis of the concept,constituent elements,demarcation standards and the determination of the purpose of illegal possession of contract fraud and civil contract fraud,and expounds the difficult problem in practice--the intersection of criminal and civilian in the form of competition and cooperation.Finally,through the analysis of this article,from the perspectives of legislation and judicature,the reasons for the separation of the two difficulties are analyzed,and based on the current situation of Chinese law,put forward suggestions for improvement,in order to play a helpful role in the separation of contract fraud and civil contract fraud in judicial practice.This article consists of five parts:Part one: Introduction to the case,the focus of the dispute and a brief analysis.This part mainly introduces the following contents: First of all,the basic situation of a typical case in judicial practice-Zhang Mou Jie contract fraud case is described.In the case,Zhang Moujie,as the person in charge of Dongsheng company,the first to sell has already sold to other people’s house again,and then in knowing that their own do not have the capacity to perform case,by withholding,cheating way so as to obtain a construction company,and used for personal consumption,thereby causing loss to the relative person property.Secondly,the focus of the case is analyzed.Zhang mou Jie’s behavior of selling two houses and defrauding the construction company performance bond should be defined as contract fraud or civil contract fraud,the procuratorate,the court of first instance and the court of second instance have different views.This article holds that the determination of the illegality of the above acts must be based on the comprehensive analysis of the whole case,and neither subjective judgment nor imputation can be made only by objective facts.Part two: The basic theory of the division between contract fraud and civil contract fraud.This part mainly discusses the following issues: First,from the legislative provisions and judicial basis,the basis of the demarcation of the two are analyzed.Secondly,analyses the connotation and the constitutive requirements of both.Although both of them have the intention of deception subjectively,they have obvious differences in objective performance and behavioral purpose.In contract fraud,the doer pursues "no consideration" to obtain property through deception,while in civil contract fraud,the purpose of doer takes deception is to obtain unequal contract benefits,which are essentially different.Again,the scope of the contract is clear,in my opinion,not only in the form of the contract to determine whether the act constitutes a contract fraud,but should be based on the legal interests of the act,in line with the requirements of the legal interests of the contract fraud infringement object,should be identified as constitute a contract fraud.Finally,the similarity of the two is analyzed.There is a certain similarity between the two in objective behavior and subjective will.It is the existence of this similarity that has become the direct reason for the confusion of the boundary between the two in judicial practice.Part three: The demarcation between contract fraud and civil contract fraud.This part,from the perspective of Zhang Moujie’s contract fraud case,makes the following specific analysis of the differences between the two subjective aspects,objective aspects and legal consequences: First,subjectively,whether there is the purpose of illegal possession is the core difference between the two.This part makes a detailed analysis of the theoretical connotation and specific identification of the purpose of illegal possession,and makes a comparison between them from the aspects of subjective purpose,subjective intention and intentional content.Secondly,objectively,it analyzes the differences between them in the content and degree of deception.Although both of them have cheating behavior objectively,there are still great differences in content,degree,object and behavior mode.Finally,the nature and content differences of the two legal consequences are analyzed.Because they are regulated by different laws,there is a difference in legal liability.In general,the purpose of illegal possession is the key to the separation of the two.It is particularly important to use objective evidence to prove the existence of many obstacles in judicial practice through direct evidence.Therefore,the division of the two should be combined with the facts of the whole case,and comprehensive analysis of the actor’s contract motivation,ability to perform the contract,performance of the contract,postdisposition and so on.Part four: The cross procedure of contract fraud and civil contract fraud.At the same time,we should also pay attention to a problem that can not be ignored,that is,the behavior based on the same fact constitutes criminal crime and civil lawfulness,and the procedure handling problem of contract fraud and civil contract fraud overlapping in competition and cooperation.This part introduces the concept implication and common cross processing procedure in practice from the angle of the cross processing procedure in Zhang’s case,and expounds the choice of the cross processing procedure in combination with Zhang’s contract fraud case.This article argues that the civil judgment is in the process of execution and find related criminal crime,while the related file to initiate an investigation,civil judgments shall continue to perform,to ensure the independence of the civil lawsuit,the timeliness of right remedy for the victim,even after the criminal judgment to make with the civil judgment fact that,civil judgments can still be corrected through trial supervision procedures.Part five: The causes of the difficulty in demarcating contract fraud and civil contract fraud and suggestions for improvement.This part firstly from the angle of legislation,judicial judicial practice both the boundary points and difficulties are analyzed,the cause of legislation are mainly embodied in the expansion of the circle of contract fraud crime,the judicial level mainly tells the story of out terms and conditions of contract fraud and abuse make it become a "whole",and emphatically explains the criminal presumption in standard problems in practical application.Secondly,this article from the front method should play the role of norms,bring into play the function of guiding cases complement and perfect the criminal presumption for the purpose of illegal possession of three aspects such as the method of put forward the concrete suggestions on perfecting,hope more perfect suggestions to the judicial practice of contract fraud and civil contract fraud problem of boundary points clear,provide the beneficial reference.