How to identify the purpose of illegal possession in fraud

According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases, the following provisions are made on how to determine the purpose of illegal possession in contract fraud cases:

If the actor has one of the following circumstances, it shall be deemed that his behavior belongs to fraud by using economic contracts for the purpose of illegal possession:

1, knowing that there is no ability to perform the contract or effective guarantee, taking the following deceptive means to sign a contract with others, defrauding a large amount of property and causing heavy losses:

Fictitious subject; Fraudulent use of another person's name; Using forged, altered or invalid certificates, letters of introduction, seals or other supporting documents; 4. Concealing the real situation and using bills or other settlement vouchers that you know cannot be cashed as a guarantee for the performance of the contract;

Concealing the truth, using collateral, creditor's rights documents, etc. If it is known that it does not meet the guarantee conditions, it shall be used as a guarantee for the performance of the contract; Use other fraudulent means to make the other party pay money or goods.

2. After the contract is signed, he escapes with the goods, payment, advance payment, deposit, security deposit and other properties that guarantee the performance of the contract;

3. Spending the goods, payment, advance payment, deposit, security deposit and other properties that guarantee the performance of the contract delivered by the other party, which makes it impossible to return the above money and materials;

4. Using the goods, payment, advance payment, deposit, deposit and other property delivered by the other party to carry out illegal and criminal activities, resulting in the above-mentioned money and property being unable to be returned;

5. Concealing the contract goods, payment, advance payment, deposit, security deposit and other properties that guarantee the performance of the contract and refusing to return them;

6. After signing the contract, after defrauding all the payment by paying part of the payment and starting to perform the contract, refusing to pay the remaining payment within the time limit stipulated in the contract or otherwise agreed by both parties without justifiable reasons. "

These provisions list in detail the common cases of contract fraud that can be identified as illegal possession, which is of great guiding significance to practice.

Extended data

(1) Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud by the Supreme People's Court and the Supreme People's Procuratorate.

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud was held at the 2nd meeting of the Judicial Committee of the Supreme People's Court on February 20th, 20 10/5/KLOC-0.

20 10 1 1 was adopted at the 49th meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on1October 24th, and is hereby promulgated, and shall come into force as of April 8th, 20 165438.

In order to punish fraudulent criminal activities in accordance with the law and protect the ownership of public and private property, according to the relevant provisions of the Criminal Law and the Criminal Procedure Law, combined with the needs of judicial practice, some issues concerning the specific application of law in handling fraudulent criminal cases are explained as follows:

Rule number one. Those who defraud public or private property in an amount of more than 3,000 yuan, 30,000 yuan, 100,000 yuan and 500,000 yuan shall be deemed as "large amount", "huge amount" and "especially huge amount" as stipulated in Article 266 of the Criminal Law respectively.

The higher people's courts and people's procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government may combine the economic and social development of the region.

Within the scope of the amount specified in the preceding paragraph, * * * shall study and determine the specific amount standard implemented in this region, and report it to the Supreme People's Court and the Supreme People's Procuratorate for the record.

Article 2 Whoever defrauds public or private property to the amount specified in Article 1 of this Interpretation, under any of the following circumstances, may be given a heavier punishment according to the provisions of Article 266 of the Criminal Law:

By sending short messages, making phone calls or publishing false information through the Internet, radio and television, newspapers and magazines, etc. , fraud is not specific to most people; Defrauding disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical funds and materials;

Fraud in the name of disaster relief fund-raising; Defrauding the disabled, the elderly or the disabled of their property; Causing the victim to commit suicide, mental disorder or other serious consequences.

The amount of fraud is close to the standards of "huge amount" and "extremely huge amount" stipulated in Article 1 of this interpretation.

And has one of the circumstances stipulated in the preceding paragraph or belongs to the ringleader of a fraud group, it shall be deemed as "other serious circumstances" and "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law respectively.

Article 3. Although defrauding public or private property has reached the standard of "large amount" as stipulated in Article 1 of this interpretation.

However, under any of the following circumstances, if the actor pleads guilty or repents, he may not be prosecuted or be exempted from criminal punishment in accordance with the provisions of Article 37 of the Criminal Law and Article 142 of the Criminal Procedure Law:

Having a statutory lenient punishment; Refund the stolen money or compensation before the judgment of the first instance; Not participating in the distribution of stolen goods or getting less stolen goods is not the principal offender; The victim understands; Other circumstances are minor and not serious.

Article 4. Fraud of property of close relatives, which is forgiven by close relatives, can generally not be treated as a crime.

If it is really necessary to pursue criminal responsibility by defrauding the property of close relatives, the specific treatment should also be lenient as appropriate.

Article 5. If the fraud is attempted, the amount is huge or there are other serious circumstances, it shall be convicted and punished.

It is difficult to verify the amount of fraud by using telecommunications technologies such as texting, phone calls and the Internet.

However, under any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for fraud (attempted):

(1) Sending more than 5,000 pieces of fraudulent information;

(2) Making fraudulent phone calls for more than 500 times;

(3) The fraudulent means are bad and the harm is serious.

Committing the acts listed in the preceding paragraph, the number of which reaches more than ten times the standards specified in Items (1) and (2) of the preceding paragraph, or the fraudulent means are particularly bad and the harm is particularly serious.

It should be recognized as "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law and convicted and punished for fraud (attempted).

Article 6. If fraud is accomplished and attempted, and different sentencing ranges are reached, it shall be punished in accordance with the provisions of heavier punishment; Those who reach the same sentencing range shall be punished as fraud.

Article 7. Knowing that it is a credit card, mobile phone card, communication tool, communication transmission channel, network technical support, fee settlement, etc., it is provided for others. , should be punished for * * *.

Article 8 Whoever impersonates a staff member of a state organ to commit fraud and at the same time constitutes fraud shall be convicted and punished in accordance with the provisions of heavier punishment.

Article 9. If the ownership of the fraudulent property and its fruits that have been sealed up, detained or frozen after the crime is clear, it shall be returned to the victim.

If the ownership is unclear, the victim may be returned according to the proportion of the defrauded money and goods to the total amount of property and fruits seized, detained or frozen in this case, but the compensation already returned shall be deducted.

The crime of fraud includes indirect intention.

Fraud is a deliberate crime. In the study of subjective elements of fraud, the focus of disagreement lies in whether fraud intention is limited to direct intention or indirect intention. The author believes that the subjective elements of the crime of fraud include direct intention and indirect intention.

At present, many frauds are carried out under the guise of legality, showing the characteristics of diversification, professionalism, concealment and informatization, and often cross with other criminal acts, so fraud is deliberately difficult to be detected.

If the crime of fraud is blindly limited to direct intent, it will inevitably lead to the "inability" of criminal law to crack down on such crimes and damage the property interests of the opposite party.

The typical crime of fraud is that the actor subjectively knows that something is false, but still expresses it (in the form of express or implied), so that the relative person falls into a wrong understanding or continues to maintain a wrong understanding, and "voluntarily delivers" property based on this.

Can achieve the purpose of illegal possession of other people's property. However, there are two situations that are relatively seldom discussed: first, the actor himself subjectively thinks something is true, but the general public can regard it as false when he expresses and obtains property from the relative.

Second, the actor himself has many uncertain factors about something, which is dubious and uncertain, but he still makes a definite statement for the benefit, and the counterpart "voluntarily" delivers the property based on the explicit statement of the actor.

In fact, this involves the degree of deception of the actor.

In the first case, some people think that it is not necessary to think that there is intentional fraud.

In the second case, it can be considered as intentional fraud.

In this case, the actor has a clear understanding of the specific behavior he is engaged in and is well aware of the uncertainty and unreality, but in order to realize his own interests, he hides all or part of the truth.

Still let things develop in a predictable direction, but in fact it released a "signal" for the victim to believe in himself, which made the victim fall into a wrong understanding and then believe in the actor. Judging from his behavior, he has an indirect and intentional psychological attitude, which is essentially a kind of deception.

In this case, although the "cheating" behavior carried out by the perpetrator can be seen through by people with social experience and common sense, the specific victim has fallen into cognitive errors because of the lack of social experience or common sense judgment ability.

Judging from the relationship between the deceived and the deceived, it should reach the degree of fraud.

The Supreme People's Court, People's Republic of China (PRC)-Interpretation of Several Issues Concerning Handling Criminal Cases of Fraud

People's Network-Fraud includes indirect intention.