Study Of Determining The Definite Amount Of The Crime Of Fraud

To determine the definite amount of a fraud is a core issue of the conviction and sentencing of the crime of fraud.It is also a difficult problem in trying the cases of fraud.The imperfect and unreasonable rules of determining the definite amount of fraud tend to make the definite amount of fraud not suited to the actual harmfulness of the act of fraud,which is bound to violate the principle of a legally prescribed punishment for a specified crime.At present,the legislation on the crime of fraud of China mainly revolves around the macro aspects.In current legislation,“the relatively large amount”,“the huge amount”,and “the extremely huge amount” of the value of public or private property are taken as the starting point and the range of sentencing the crime of fraud while there are no explicit detailed rules for the implementation of the considerations to determine the definite amount of fraud.The legal system of the rules of determining the definite amount of fraud has not been formed yet.It is evident that the legal grounds currently in effect are unable to solve the problem of determining the definite amount of fraud in judicial practice completely.Therefore,it is of great significance to set up a set of reasonable and scientific rules of determining the definite amount of fraud to the hearing of the cases of fraud.By retrieving and analyzing the cases of determining the definite amount of fraud,the judges hold relatively consistent positions of judgment in determining the definite amount of fraud in the cases of one-sided payment in which only the victim has an act of payment in judicial practice.In most cases,the amount of money cheated out of by the actor of fraud is considered as the definite amount of fraud.On the contrary,the judges tend to disagree with each other in determining the amount of money in the cases of two-sided in which both the actor of fraud and the victim have an act of payment.The focus of controversy mainly concentrates on whether the nonmonetary cost of crime and the money returned before the case happened can be deducted from the definite amount of fraud,which leads to different decisions to the cases of the same category.Therefore,the issue that whether the nonmonetary cost of crime and the money returned before the case happened can be deducted from the definite amount of fraud has come to be a difficult problem in establishing the rules of determining the definite amount of fraud.In the cases of fraud concerning the nonmonetary cost of crime,the deduction of the cost of crime depends on whether the subjective purpose of the victim is realized or not.If the subjective purpose is realized,the cost of crime shall be deducted.Conversely,it shall not be deducted.The realization of subjective purpose should take the objective declaration of will as the grounds for determination on the basis of fully respecting the victim’s position of subject.In the cases of fraud in which money and goods are returned before the case happened,the key point of examination should be whether the actor of fraud has illegal purpose of possessing the returned money.If the actor of fraud has an illegal purpose,the returned money and goods shall not be deducted.If the actor of fraud does not have an illegal purpose or it cannot be examined clearly,the returned money and goods shall be deducted.The standards of evaluating the illegal purpose of possession can be made explicit and concrete by means of “the happening of the case” and “repayment”,etc.To be concrete,the money of fraud returned before the victim reports the case to security authorities,no matter whether the returning is active or not,indicates that the actor of fraud has no illegal purpose of possession of the returned money.As to the return completed after the victim reports and before the security authorities file the case on file,only the active return can be considered that the actor of fraud has no illegal purpose of possessing the returned money.The study of the rules of determining the definite amount of fraud provides concrete guidance for determining the definite amount of the cases of fraud in judicial practice and is advantageous to unifying the effect of applying the law and to realize the legislative purpose of the criminal law to punish crimes and guarantee human rights.