Understanding of Fraud and Analysis of Typical Cases (I): Elements of Fraud

Fraud is one of the common crimes, and our lawyers have some experience in dealing with such cases. In the next period of time, the lawyer will write some of his own understanding of the crime of fraud, and will also select some typical cases about the crime of fraud for analysis. Interested friends can continue to pay attention. I hope that everyone will not commit fraud and become a victim of fraud. In case there are relatives and friends around you who are suspected of fraud, you will know how to deal with it after continuous attention (in fact, the best way to deal with it is to contact our lawyer as soon as possible, haha).

Stop gossiping and get down to business.

In China's criminal law, there are many clauses involving fraud. For example, financial fraud includes fund-raising fraud, loan fraud, bill fraud, insurance fraud and so on. In addition, there is the crime of contract fraud. This series focuses on the crime of fraud in Article 266 of the Criminal Law.

Article 266 of the Criminal Law of People's Republic of China (PRC) shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.

The above are the specific provisions of the criminal law. As you can see, it's very simple. In short, this clause stipulates that whoever defrauds public or private property in a large amount shall be sentenced to fixed-term imprisonment of not more than three years ...; If the amount is huge or there are other serious circumstances, 3- 10 years; If the amount is especially huge or there are other particularly serious circumstances, it will be executed for more than 10 years or indefinitely. At the same time, the property will be punished (and fined, and the property may be confiscated in the last file).

We will analyze the serious or especially serious situations such as large amount, huge amount and particularly huge amount one by one in the future.

The most important thing in this clause is the word "defrauding public or private property". Public and private property is easy to understand, simply understood as public property or private property. Among these six words, the word "fraud" is the most difficult to understand and the most controversial. What is fraud in the sense of criminal law? Or from a professional point of view, what are the elements of fraud?

There are different opinions about what is the crime of fraud in the sense of criminal law, and the views are similar. Lawyers believe that the most accurate statement is that "(criminal suspects) use fictional facts or conceal the truth for the purpose of illegal possession, so that victims can dispose of their property based on wrong cognition."

As can be seen from the above very accurate description, judging whether it constitutes a crime of fraud depends not only on the behavior of the suspect, but also on the behavior of the victim. There are two points to judge a criminal suspect: first, whether it is for the purpose of illegal possession (whether it is directly taking other people's property for yourself); The second is whether there are fictional facts or acts of concealing the truth (whether there is cheating). One thing to judge the victim is that the victim's disposal of his property is based on wrong cognition (the victim gave the property to the suspect because he was cheated).

Basically, all fraud cases should be tried by judges according to these three points, and defenders (lawyers) should also argue according to these three points. But in fact, many judges or defenders are limited to the first two points, that is, to see whether the suspect has the purpose of illegal possession and whether there is an act of fabricating facts to conceal the truth. The lawyer thinks this is wrong and lacking. Why I think it is wrong will be mentioned below.

(a) whether for the purpose of illegal possession.

Whether the criminal suspect has the purpose of illegal possession, in layman's terms, whether the criminal suspect wants to take other people's property for himself is actually a subjective judgment. Subjective thoughts are difficult to judge. For example, if someone tells you that I miss you, it is actually difficult for you to know exactly whether he or she is telling the truth or fooling you. You can only judge that the other person is fooling you by his own feelings or his objective behavior. Of course, cognition is likely to be biased. On the legal level, the identification of other people's subjective thoughts must be identified through his objective behavior. There is a very classic little case that can explain this problem well.

A man was shopping in the street with a stack of counterfeit money of 100 yuan. I bought a bottle of coke for the shopkeeper in the first shop, and the shopkeeper asked me for 95 yuan. A few minutes later, I bought a box of chewing gum in the second store and gave it to the owner 100 yuan. The shopkeeper charged him 90 yuan. Then he bought a pack of cigarettes in the third store and gave it to the shopkeeper, who asked him for 80 yuan. After passing through several shops, he was caught by the police. It is easy for everyone to have a judgment on whether this person "intentionally" uses counterfeit money. This person can explain that I didn't know I had counterfeit money, so I just shopped normally. But this statement is difficult to explain its behavior. If you don't know it's counterfeit, why don't you buy it all in one store? Even if you just want to buy in different stores, after the first store uses all the funds, the subsequent stores can also buy with small change. Why do you still use all your money? Such behavior can easily be judged as "intentional" use of counterfeit money. In this case, whether it is "intentional" is a judgment against subjective thoughts. Based on this person's behavior, everyone can judge that he is "intentional". If this is a true case, the defender should not argue in such a failed detail, but should find other arguments.

Regarding the crime of fraud, I think the reason is the same whether the suspect aims at illegal possession or not. Since we want to believe that the criminal suspect has the purpose of illegal possession, the public prosecutor (prosecutor) should give evidence based on the objective behavior of the criminal suspect. For example, after fabricating the reasons for withdrawing money, WeChat blacked out, can it be considered as "for the purpose of illegal possession"? I don't think so. Wechat has been hacked and the phone can still be contacted. If WeChat and the phone are hacked, can it be considered as "for the purpose of illegal possession"? My lawyer doesn't think so. If you know where you live, where you work and where you are active, you can easily find it when you give money. You can't say that. (Subsequent case analysis will refer to the corresponding judicial interpretation)

This is actually the most controversial point in the actual case, and it is easy to form a good argument. Some people cheat money and don't want to pay it back, but others don't want to cheat money and don't want to pay it back. They just want to use it first, and then pay it back slowly after use. In criminal offences, we should pay attention to the adaptation of guilt and punishment. Simply put, it is what you have done and what kind of consequences you have to bear. People don't want to do such a thing and make people bear such serious consequences; Or do something very light and make people bear very serious consequences, which is inappropriate and does not conform to the spirit of the rule of law.

Whether there is any act of fabricating or concealing the truth.

It is actually very easy to prove whether there is a fictional fact or to hide the truth. Just look at how the two communicated at that time and see if there is any other evidence to prove it. This is an objective fact, which can be proved by sufficient evidence, but cannot be proved by insufficient evidence without excluding reasonable doubt. Analyze it when you meet me later.

(3) The victim disposes of his property based on wrong cognition.

Defenders believe that it is very important for the victim to dispose of his property based on the criminal suspect's fraudulent behavior and wrong cognition. This point is often ignored by judges or peers in practice. Some people may not understand this expression. In other words, I lied to you, but you may not give me money because I lied to you. If so, my lawyer thinks that the suspect's crime of fraud cannot be regarded as accomplished.

For example, a handsome young man (beautiful woman) solemnly lied to a middle-aged and elderly opposite sex that I was Qin Shihuang (or Wu Zetian or something like that). I have lived until now, and I will give you whatever you give me. When middle-aged and elderly people know the opposite sex, their inner OS is "stupid X". But at first glance, the handsome guy (beauty) looks good. He is empty, bored, lonely and cold, so let's play with him (her) in Doby. This is just a little money. Here you are. There are many similar situations. The essence is that the "victim" gave the suspect money not because he was cheated, but for other purposes. In this case, can it be considered that the crime of fraud has been accomplished? Our lawyer doesn't think so.

This point is easily overlooked in practice, but it is also very easy to form an argument.

This sharing is here, to be continued.