What does fraud mean?

What does fraud mean?

Article 68 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and Civil Law: One party intentionally informs the other party of false information, or deliberately conceals the true situation to induce the other party to Any wrong expression of intention may be deemed as fraud. To constitute a fraudulent act, the following four elements must generally be met: (I) The fraudster has the intention to commit fraud. Intention to deceive means knowing that one's statements are false and will lead the other party to fall into a wrong understanding, and one hopes or indulges in such a result. The intentionality of fraud includes two aspects: one is the intention to state false facts; the other is the intention to induce others into a wrong understanding. In real life, it is not uncommon to state wrong facts. According to the motivation of the perpetrator, it can be divided into two categories: the first category is when the perpetrator deliberately states the wrong facts, which constitutes the subjective element of fraud; the second category is when the perpetrator is objectively Subject to the limitations of the conditions, it is considered that the false facts stated are true, that is, he did not subjectively intend to state the false facts, and this does not constitute the subjective element of fraud. However, it is not easy to distinguish whether the perpetrator has the intention to state false facts. This is mainly determined from the perpetrator's behavioral motivation, knowledge and experience, and the objective environment in which he or she is located. (2) The fraudster committed fraud. Fraudulent behavior refers to the behavior of a fraudster who deliberately states false facts or deliberately conceals the true situation to cause others to fall into a wrong understanding. Deliberately stating false facts and deliberately concealing the true facts are two aspects that constitute fraud. Deliberately stating false facts, such as describing counterfeit goods as high quality and low price. The act of deliberately concealing the true situation means that the perpetrator deliberately fails to inform others of the true situation when he has the obligation to do so. Does silence constitute fraud? The laws of most countries stipulate that when the perpetrator is obliged to state the true situation and fails to do so or remains silent, it constitutes fraud. The provisions of our country's laws on whether silence constitutes fraud are similar to the above provisions. For example, Article 28 of the Product Quality Law stipulates: Before selling a product that does not have the performance that the product should have, the seller must make a prior notification to the consumer or user. explanation, otherwise the seller shall bear civil liability. This provision indicates that silence when there is a duty to explain constitutes fraud. In addition, those who have an obligation to explain based on the principle of good faith cannot remain silent. (3) The defrauded person fell into a mistake due to fraud. The so-called errors refer to defects in understanding the content of the contract and other important circumstances. To constitute fraud, there must generally be a causal relationship between the misunderstanding of the person being deceived and the fraudulent behavior of the deceiver. In other words, if the deceived party enters into a contract, the false information provided by the deceiver must be closely related to the content of the contract, and the defrauded party must have a misunderstanding of the contract content due to the false information provided by the deceiver. (4) The deceived person made a mistake in expressing his intention. If the defrauded person's expression of intention was not made due to fraudulent behavior, it does not constitute fraud. This shows that there is a causal link between the intention of the person being defrauded and the fraudulent behavior.

What does fraud mean?

Fraud means that one party deliberately fabricates a false situation or conceals the true situation.

It means that the other party falls into a mistake and violates his true intention. Act of expression (civil law).

(Contract Law) Fraud refers to intentional behavior with the purpose of causing people to misunderstand.

What is the legal definition of fraud?

Fraud refers to intentional behavior with the purpose of causing people to misunderstand something. If a party expresses its intention due to a cognitive error caused by another person's intentional misstatement, it constitutes a civil act due to fraud. In order to protect the legitimate interests of the party who has been defrauded and not be bound by the expression of intention due to fraud, according to the Contract Law, the party who has been defrauded is allowed to revoke the civil act, and in the General Principles of Civil Law, fraud It is also an act that renders civil acts invalid.

What is civil fraud?

The so-called fraud refers to the act of deliberately deceiving others, concealing it under wrong judgment, and expressing one's intention based on wrong judgment.

Article 68 of the Supreme People’s Court’s “Opinions on Several Issues Concerning the Implementation (Trial)” stipulates: “One party intentionally informs the other party of false information, or deliberately conceals the true situation, to induce the other party to make a wrong expression of intention. "According to this provision, the following conditions must be met to constitute fraud:

First, the fraudster has the intention to commit fraud. The so-called intentional fraud refers to a psychological state in which the fraudster wisely informs the other party that the situation is false, which will cause the person being deceived to fall into a wrong understanding, and hopes or allows this result to occur. This includes the intention to cause the defrauded person to fall into a wrong understanding and the intention to cause the defrauded person to express a certain intention based on the wrong understanding. Intention must be based on the precondition that the deceiver is aware of the facts and the person deceived is not aware of the facts, otherwise it does not constitute fraud.

Second, the fraudster has fraudulent behavior. The so-called fraud refers to the fraudster's behavior of intentionally concealing facts or telling false information through language, writing or activities. This includes fabricating, changing, and concealing facts in order to make the defrauded person fall into a mistake, deepen the mistake, or maintain the mistake. Fraud can be a form of fraud or omission.

Failure to act mainly refers to the situation where there is an obligation to disclose the truth in law, trading customs or contracts but one intentionally fails to fulfill the obligation to disclose the truth.

Third, the defrauded person fell into a mistake based on the fraud of the deceiver, that is, the defrauded person fell into the mistake not because of his own negligence, but because of fraud. The error here refers to the parties' lack of understanding of the main contents of the contract. If the person being defrauded does not make a mistake, even if the deceiver has the intention and behavior to defraud, there will be no legal consequences of fraud. It also requires a causal relationship between fraud and being caught in a mistake.

Fourth, the defrauded person expressed a certain intention due to misunderstanding. The so-called expression of intention refers to the behavior in which the expresser externally expresses his intention to establish a legal act. If the person who is deceived thinks that his/her true expression of intention is his/her true expression of intention, the expected legal consequences will arise. In fact, due to fraud, the intended legal consequences will not occur. That is to say, there is a causal relationship between the defrauded person's expression of intention and the mistake he committed. If the deceived person falls into a misunderstanding due to being deceived, but does not express his intention due to the misunderstanding, this does not constitute fraud.

In addition, fraud must violate laws and regulations and violate the principle of good faith. It is beneficial to society and others, and it does not constitute fraud if it is done in good faith.

What is the difference between fraud and fraud?

Fraud is an intentional act intended to cause another person to commit a mistake. The laws of various countries all believe that when a contract is concluded due to fraud, the deceived party can revoke the contract or claim that the contract is invalid.

In Anglo-American law, fraud is divided into two categories, signature fraud and contract fraud. Signature fraud means that the fraudulent party deceives the other party into signing by making incorrect statements and explanations about the signed contract. For example, when signing, another contract is deliberately substituted for the contract originally signed. Signature fraud voids a contract. Contractual fraud means that during negotiations, one party uses fraudulent statements to defraud the other party's consent. To prove fraud, the injured party must prove the following: First, the other party made incorrect statements or concealed or did not disclose the above-mentioned facts about relevant material facts, and he knew that the statements made were false or could not determine whether they were true or not; Secondly, the other party has the intention to deceive and induce the other party to rely on its incorrect statement; thirdly, the other party has indeed and reasonably relied on the above-mentioned incorrect statement; fourthly, he has suffered loss or damage as a result. The defrauded party may demand monetary compensation or declare the contract void. The Uniform Commercial Code of the United States stipulates that all remedies that a party to a contract for the sale of goods may take if the other party breaches the contract may be used by the party who has been defrauded.

The French Civil Code stipulates on this issue that if one party does not use deceptive means and tricks, the other party will obviously not conclude a contract with it. To this extent, fraud is the reason why the contract is invalid. It can be seen that the result of fraud will lead to the invalidity of the contract, but the French Civil Code also stipulates that fraud must not be presumed but must be proven.

Our country’s contract law stipulates that contracts concluded by fraudulent means are invalid.

Fraud

Mr. Zhang Junhao believes: "The so-called fraud is to deliberately represent an untrue situation as a real situation, aiming to make others make mistakes and then cater to them. Mr. Wang Weiguo believes: "Civil acts due to fraud refer to one party deliberately fabricating false information, or distorting or covering up the true situation, causing the other party to fall into a wrong understanding, and A civil act based on this misunderstanding.” Mr. Wang Zejian, a Taiwanese scholar, believes: “Fraud is an act of intentionally causing someone to make a mistake as an expression of intention. It can be said to intentionally infringe on the rights and interests of others in a way that violates good customs. ”

From the identification of “fraud” by these scholars, there is a common understanding: that is, under normal circumstances, to constitute a fraud, the perpetrator must intentionally make false statements or deliberately conceal the true situation, that is, Generally as constituting fraud. This raises the question: can fraud be established through omission? If so, to what extent?

In civil acts of fraud, the person who is deceived makes a defective expression of intention due to a mistake. In essence, it lacks freedom of expression and is an unqualified expression of intention. Therefore, it is certainly a kind of expression of intention. Untrue expression of intention is inconsistent with the principle of autonomy of private law. The so-called private law autonomy “refers to the principle that each subject independently constructs and forms legal relationships according to his own will.” The superiority of private law autonomy lies in providing individuals with a freedom protected by law and giving individuals the possibility of independent decision-making. As far as the behavior itself is concerned, everyone has the right to freely decide whether to engage in a certain behavior, which is the so-called principle of self-determination enjoyed by the parties.

Fraud, in essence, involves deliberately providing false information to cause the parties to make a wrong expression of intention, which is an inappropriate interference with their freedom of will. From the original intention, it is not the true expression of intention of the parties. Fundamentally speaking, it is an infringement of the party's right to self-determination and is therefore an invalid civil act. Nevertheless, according to the principle of private law autonomy, "the consensus of the parties is the law", the civil laws of various countries do not regard it as invalid, but give the defrauded party all options, that is, he can make full use of the right of revocation: he can either The act exercises the right of revocation to render it invalid, and the right of revocation can also be used for speculation. During the expulsion period, the person with the right to revoke the right can wait and see whether the legal action is beneficial to him or her before making a decision.

Of course, all countries have a time limit on the expulsion period to prevent the legal relationship from being in an unstable state for a long time. It is important to point out that the fraudster does not enjoy the right of revocation but must bear the burden of this precarious state.

2. During the contracting process, when there is a major obligation to explain, failure to act constitutes fraud

Medicus believes: “Fraud refers to intentionally (intentionally) causing some kind of "Error", here, the author believes that it should include two situations: action and omission. The situation of action is relatively common. Here we mainly analyze the fraud constituted by the act of omission.

Generally speaking...

Interpretation of the crime of fraud

Several issues concerning the specific application of law in criminal cases of fraud are explained as follows: Article 1 Fraud Public and private property worth 3,000 yuan to more than 10,000 yuan, 30,000 yuan to more than 100,000 yuan, or more than 500,000 yuan shall be deemed as "larger amount" and "larger amount" as stipulated in Article 266 of the Criminal Law respectively. Huge” and “a particularly huge amount”. The higher people's courts and people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government may, based on the economic and social development conditions of the region, jointly study and determine the specific amount standard for implementation in the region within the amount range specified in the preceding paragraph, and report it to the Supreme People's Court and the Supreme People's Court. Procuratorate filing.

Article 2 If the amount of defrauding public or private property reaches the amount standard stipulated in Article 1 of this Interpretation, and any of the following circumstances occurs, he may be severely punished as appropriate in accordance with the provisions of Article 266 of the Criminal Law:

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(1) Fraudulently defrauding an unspecified majority of people by sending text messages, making phone calls, or using the Internet, radio and television, newspapers, magazines, etc. to publish false information;

(2) Fraudulent disaster relief, Emergency rescue, flood prevention, special care, poverty alleviation, immigration, relief, and medical supplies;

(3) Fraud in the name of raising funds for disaster relief;

(4) Fraudulent people with disabilities and the elderly property of a person or a person who has lost the ability to work;

(5) Causing suicide, mental disorder or other serious consequences to the victim. If the amount of fraud is close to the standards of "huge amount" or "particularly huge amount" stipulated in Article 1 of this Interpretation, and there is one of the circumstances specified in the preceding paragraph or if it is the leading member of a fraud group, it shall be deemed to be a fraud under Article 260 of the Criminal Law respectively. "Other serious circumstances" and "other particularly serious circumstances" stipulated in Article 6.

Article 3 Although the defrauding of public or private property has reached the "relatively large amount" standard stipulated in Article 1 of this Interpretation, if one of the following circumstances occurs and the perpetrator pleads guilty and regrets, he may be punished according to Article 1 of the Criminal Law. Article 37. Article 142 of the Criminal Procedure Law prohibits prosecution or exemption from criminal punishment:

(1) There are statutory lenient circumstances;

(2) All the stolen goods and compensation were returned before the verdict of the first instance was pronounced;

(3) The person did not participate in the division of the stolen goods or received less stolen goods and was not the principal culprit;

(4) The victim understood;

(5) Other cases where the circumstances are minor and the harm is not great.

Article 4: Defrauding close relatives of their property, if the close relatives understand, will generally not be treated as a crime. It is indeed necessary to pursue criminal liability for defrauding close relatives of their property, and the specific handling should be lenient as appropriate.

Article 5: Anyone who attempts fraud, targets a huge amount of property, or has other serious circumstances shall be convicted and punished. Using telecommunications technology means such as sending text messages, making phone calls, and the Internet to defraud an unspecified majority of people. The amount of the fraud is difficult to verify, but if one of the following circumstances occurs, it shall be deemed as "other serious circumstances" stipulated in Article 266 of the Criminal Law. ", convicted and punished for the crime of fraud (attempted)

: (1) Sending more than 5,000 fraudulent messages; (2) Making more than 500 fraudulent calls; < /p>

(3) Violent fraud methods and serious harm. Those who commit the acts specified in the preceding paragraph and the quantity reaches more than ten times the standards specified in Items (1) and (2) of the preceding paragraph, or those whose fraud methods are particularly egregious and the harm is particularly serious, shall be deemed to have committed crimes as stipulated in Article 266 of the Criminal Law. "Other particularly serious circumstances" will result in conviction and punishment for fraud (attempted).

Article 6: Fraud includes both completed and attempted fraud, and if they reach different sentencing ranges, they shall be punished in accordance with the heavier penalty provisions; if they reach the same sentencing range, they shall be punished as completed fraud.

Article 7 Anyone who knowingly provides other people with credit cards, mobile phone cards, communication tools, communication transmission channels, network technical support, expense settlement, etc. to commit fraud crimes shall be punished with the same crime.

Article 8: Anyone who pretends to be a staff member of a state agency to commit fraud, which simultaneously constitutes the crime of fraud and pretense, shall be convicted and punished in accordance with the provisions on heavier penalties.

Article 9 If the ownership of the fraudulent property and its interest that are seized, detained, or frozen after the incident is clear, it shall be returned to the victim; if the ownership is unclear, the property and its interest shall be returned to the victim as the defrauded money and property. The proportion of the total amount of property seized, detained or frozen and its interest shall be returned to the victim, but any compensation that has been refunded shall be deducted.

Article 10 If the perpetrator has used the fraudulent property to pay off debts or transferred it to others, and any of the following circumstances apply, it shall be recovered in accordance with the law:

(1) The other party knows that it is fraud

(2) The other party obtains the fraudulent property for free;

(3) The other party obtains the fraudulent property at a price that is significantly lower than the market price;

< p> (4) The other party obtains the fraudulent property due to illegal debts or illegal and criminal activities. If others obtain fraudulent property in good faith, they will not be recovered.

Article 11 If the previously issued judicial interpretation is inconsistent with this interpretation, this interpretation shall prevail.

Interpreted as effective from April 8, 2011

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How should fraud be identified?

Article 68 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and Civil Law: If one party intentionally informs the other party of false information, or deliberately conceals the true situation, to induce the other party to make a wrong expression of intention, It can be considered as fraud. To constitute a fraudulent act, the following four elements must generally be met: (I) The fraudster has the intention to commit fraud. Intention to deceive means knowing that one's statements are false and will lead the other party to fall into a wrong understanding, and one hopes or indulges in such a result. The intentionality of fraud includes two aspects: one is the intention to state false facts; the other is the intention to induce others into a wrong understanding. In real life, it is not uncommon to state wrong facts. According to the motivation of the perpetrator, it can be divided into two categories: the first category is when the perpetrator deliberately states the wrong facts, which constitutes the subjective element of fraud; the second category is when the perpetrator is objectively Subject to the limitations of the conditions, it is considered that the false facts stated are true, that is, he has no subjective intention to state the false facts, and this does not constitute the subjective element of fraud. However, it is not easy to distinguish whether the perpetrator has the intention to state false facts. This is mainly determined from the perpetrator's behavioral motivation, knowledge and experience, and the objective environment in which he or she is located. (2) The fraudster committed fraud. Fraudulent behavior refers to the behavior of a fraudster who deliberately states false facts or deliberately conceals the true situation to cause others to fall into a wrong understanding. Deliberately stating false facts and deliberately concealing the true facts are two aspects that constitute fraud. Deliberately stating false facts, such as describing counterfeit goods as high quality and low price. The act of deliberately concealing the true situation means that the perpetrator deliberately fails to inform others of the true situation when he has the obligation to do so. Does silence constitute fraud? The laws of most countries stipulate that when the perpetrator is obliged to state the true situation and fails to do so or remains silent, it constitutes fraud. The provisions of our country's laws on whether silence constitutes fraud are similar to the above provisions. For example, Article 28 of the Product Quality Law stipulates: Before selling a product that does not have the performance that the product should have, the seller must make a prior notification to the consumer or user. explanation, otherwise the seller shall bear civil liability. This provision indicates that silence when there is a duty to explain constitutes fraud. In addition, those who have an obligation to explain based on the principle of good faith cannot remain silent. (3) The defrauded person fell into a mistake due to fraud. The so-called errors refer to defects in understanding the content of the contract and other important circumstances. To constitute fraud, there must generally be a causal relationship between the misunderstanding of the person being deceived and the fraudulent behavior of the deceiver. In other words, if the deceived party enters into a contract, the false information provided by the deceiver must be closely related to the content of the contract, and the defrauded person must have a misunderstanding of the contract content due to the false information provided by the deceiver. (4) The deceived person made a mistake in expressing his intention. If the defrauded person's expression of intention was not made due to fraudulent behavior, it does not constitute fraud. This shows that there is a causal link between the intention of the person being defrauded and the fraudulent behavior.

What does fraudster mean?

Liar. Scammers in the world can be divided into three categories: the first type aims at defrauding people of money, and is called the White Heron; the second type uses beauty to lure people into traps, and is called the Red Heron; and the third type is the natural enemy of the first two. , specifically targeting egrets and red egrets, and people gave them the resounding name "black herons".

Elements of fraud

Intentional fraud means that the perpetrator intentionally defrauds others, that is, the perpetrator knows that his behavior will cause the person being defrauded to fall into a mistake. A state of mind that recognizes and hopes for this outcome to occur. Fraudulent behavior of the deceiver Fraudulent behavior refers to the deceiver's behavior of concealing facts and informing false information in his language, words or activities. Even if the defrauded person falls into a mistake, deepens the mistake or maintains the mistake, he fabricates facts, changes the facts or conceals the facts. Fraud can manifest itself in two ways: action and omission. The defrauded person's misunderstanding is due to fraud. The defrauded person's mistake is not due to his own negligence, but due to the deceiver's fraud. The so-called errors refer to defects in understanding the content of the contract and other important circumstances. The defrauded person expresses his intention due to mistake, which is the external expression of the intention to establish a legal act (Wang Liming's "New Treatise on Civil Law", Volume 1, page 376). It can be seen that expression of meaning is a kind of behavior, which is the behavior of expressing people's mental state externally. It consists of three elements, namely effect meaning, expressive behavior and expressive meaning.

The internal elements of meaning that the person intends to express to cause legal effect are the effective meaning; the way used to express the inner meaning of the actor is the expressed behavior; the external meaning expressed through the expressed behavior is the expressed meaning. Fraud violates the law and violates the principle of good faith. The principle of good faith is the most basic principle of civil law. It requires the parties to exercise their rights and perform their obligations in a good-faith, honest and conscious manner. The provisions of this principle are to balance the parties and the parties. relationship with society. Fraudulent behavior: causing the other party to have a misunderstanding, which is caused by the perpetrator's fraudulent behavior; even if the other party makes certain errors in judgment, it does not prevent the establishment of the fraudulent act.

The difference between deception and fraud

In civil activities, one party intentionally conceals the facts, causing the other party to misbelieve, causing damage to its interests and profiting from it, which is civil fraud. . Fraudulent behavior is the act of defrauding public and private property by fabricating facts, concealing the truth, and making things out of thin air for the purpose of illegal possession. If the amount is relatively large, it constitutes the crime of fraud. Although the two are similar in objective performance, there are still obvious differences in their constituent elements.

(1) In the subjective aspect: the subjective purpose of the perpetrator of civil fraud is to use concealment, coaxing, and inducement methods to cause the victim to have a wrong understanding and perform actions that are detrimental to the victim but beneficial to the fraud perpetrator. , seeking illegal benefits through the legal form of "performing obligations", its essence is "illegal profit", and the subjective intention is indirect. Fraud is different. The perpetrator has no subjective motive to assume obligations at all. He only attempts to fabricate facts to confuse the victim into being deceived, handing over the property, and illegally possessing it. His subjective intention is direct.

(2) In the objective aspect: Criminal fraudsters artificially evade legal sanctions. While fabricating facts, they often use false identities, false documents, and even make up false names, false addresses, etc. The purpose is It's about not being held accountable by the law after you succeed. The perpetrators of civil fraud do not need to fake identities, fictitious addresses, forged documents, etc., and generally have legal civil subject qualifications.

(3) In terms of content: The perpetrators of criminal fraud completely fabricated facts and made things out of thin air, and simply did not have the ability and conditions to perform their obligations. The fraudster exaggerates and expands based on certain facts, and some of the contents are untrue, and he has certain ability and conditions to bear obligations, which means that the actions he performs have legal civil content.

(4) In terms of consequences: Criminal fraud perpetrators use unscrupulous means to illegally possess, and the amount of property defrauded is often very huge, which seriously disrupts my country's reform and opening up and market economic order.

Article 266 of my country's "Criminal Law" stipulates: "Whoever defrauds public or private property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or solely be fined; if the amount is huge or If 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 particularly huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or his property shall be confiscated. " Although fraud is also illegal, its severity is still within the limits of civil violations. Regarding civil fraud, Article 58 of my country's "General Principles of Civil Law" stipulates: "A civil act in which one party uses fraudulent coercion or takes advantage of others to cause the other party to act against his true intention shall be invalid." For invalid civil acts, , the law stipulates that each party shall return their property, and the party committing fraud shall compensate the other party for its losses.