| The relationship between the crime of financial fraud and the crime of fraud has always been one of the points of controversy in the field of criminal law.From the initial theory of legal competition and cooperation,to the later imaginary competition theory and the great competition theory,the theory has been unable to give a unified plan in the specific application of the two crimes,and the three application principles of absolute priority of special law,supplementary application of heavy law,and heavy punishment occupy one side of each party.However,the ultimate goal of theory is better service practice.The theoretical study of the relationship between the two crimes should also be realistic,and the particularity brought by the natural financial attributes of the crime of financial fraud should not be ignored,and the "deception" of the crime of financial fraud should not be treated the same as the "deception" in the crime of fraud.Taking the crime of credit card fraud as an example,China’s legislation and judiciary have made different severity of punishment provisions for the crime of credit card fraud and the crime of fraud.From the perspective of the evolution of legislation and judicial interpretations,the legislation has initially treated credit card fraud with the crime of fraud,to the subsequent separation of it from the crime of fraud and giving more lenient provisions,and then to the later further leniency,it can be seen that the legislator has gradually realized the particularity of the crime of credit card fraud compared with the crime of fraud,and has made more and more lenient provisions on the crime of credit card fraud according to this particularity.At the same time,the judicial interpretation also follows the original legislative intent and makes further lenient provisions on the crime of credit card fraud.In judicial practice,the judicial authorities have further narrowed the scope of punishment for credit card fraud on the basis of legislation and judicial interpretations.China’s legislation and judiciary are more lenient than the crime of fraud,and have an inherent legal basis.First,the greater leniency of the crime of financial fraud is determined by the essential nature of the financial market.At present,the financial market has moved from the past state of government regulation to full openness,and the pursuit of freedom,self-discipline,efficiency over security is its main theme.Financial markets do not need and do not want criminal law to go too deep.Second,the greater leniency of the crime of financial fraud is determined by the protection of legal interests.The protection law of financial fraud crime should be financial credit,and the external manifestation of financial credit is the security of financial funds,so infringement of financial fund security should be the criminalization standard for financial transaction violations such as financial fraud.Specific to the crime of credit card fraud,its legal interest is the security of credit funds,and only acts that substantially threaten the security of the card-issuing bank to recover overdraft funds are the targets of criminal regulations.The crime of fraud protects the ownership of public and private property,and the criminal law needs to strictly protect it.Third,more leniency for the crime of financial fraud also needs to be explained by the introduction of victim theological theory.The core principles of victim theology are the victim’s protection possibilities and victims’ need for protection.Victims of financial fraud are more likely to protect themselves than victims of fraud,and need less protection than victims of fraud.Therefore,the Criminal Law implements weak protection for victims of financial fraud crimes and strong protection for victims of fraud crimes.From the perspective of the particularity of the crime of financial fraud and the crime of fraud,although there are "similarities" between the extension of the two crimes,which belong to the competition of laws,the principle of absolute priority of special law should be adhered to,and the supplementary application of heavy laws should be prohibited.For financial fraud,the conviction and punishment cannot be transferred to the crime of fraud because the conviction amount has not been reached or the sentence is obviously light.The "theory of heavy law supplementation" in criminal law theory and "one heavy punishment" should be abandoned. |
