Crime of fraud
According to Article 266 of the criminal law, Whoever swindles public or private money or property, if the amount is relatively large, shall be fined concurrently or be sentenced to confiscation of property, except as otherwise specifically provided in this Law.
Constitution of crime
（1） Object
The object of this crime is the ownership of public and private property. Although some criminal activities also use some deceptive means and even pursue some illegal economic interests, the object of their infringement is not or is not limited to the ownership of public and private property. Therefore, it does not constitute the crime of fraud. For example, trafficking in women and children is a crime of violating personal rights.
The object of the crime of fraud is limited to the property of the state, collective or individual, rather than defrauding other illegal interests. Its target should also exclude loans from financial institutions. The crime of loan fraud has been specially stipulated in Article 193 of the criminal law.
Objective elements
Subject
The subject of this crime is a general subject. Any natural person who reaches the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime. That is, reaching the age of 16 can constitute the subject of this crime.
subjective element
The subjective aspect of this crime is direct intention, and has the purpose of illegal possession of public and private property.
Object elements
The object of this crime is the ownership of public and private property. Although some criminal activities also use some deceptive means and even pursue some illegal economic interests, the object of their infringement is not or is not limited to the ownership of public and private property. Therefore, it does not constitute the crime of fraud. For example, trafficking in women and children is a crime of violating personal rights.
The object of the crime of fraud is limited to the property of the state, collective or individual, rather than defrauding other illegal interests. Its target should also exclude loans from financial institutions. The crime of loan fraud has been specially stipulated in Article 193 of the criminal law.
objective element
This crime is objectively manifested in the use of fraud to defraud a large amount of public and private property.
First, the perpetrator committed fraud. In terms of form, fraud includes two types: one is fictitious facts, the other is concealing the truth. In essence, both are acts that make the victim fall into a wrong understanding. The content of fraud is to make the victim have a wrong understanding and make the property disposal desired by the perpetrator under specific circumstances. Therefore, whether it is fiction or concealment of past facts, current facts and future facts, as long as it has the above contents, it is a fraud. If the content of fraud is not to make them make property disposal, it is not a fraud of the crime of fraud. Fraud must reach the level that enables ordinary people to have a wrong understanding and exaggerate the goods they sell. It is not a fraud if it does not exceed the scope of social tolerance. There are no restrictions on the means and methods of fraud, which can be either verbal fraud or action fraud (fraud itself can be either act or omission, that is, it has the obligation to inform a certain fact, but if it fails to perform this obligation, the other party will fall into a wrong understanding or continue to fall into a wrong understanding). It is also a fraud when the perpetrator uses this wrong understanding to obtain property. Article 300 anyone who swindles or uses superstition or heretical organizations to defraud money or property shall be punished in accordance with the provisions of the criminal law.
Secondly, fraud makes the other party have a wrong understanding. The wrong understanding of the other party is caused by the perpetrator's fraud. Even if the other party has a certain error in judgment, it will not hinder the establishment of fraud. Between fraud and the other party's disposal of property, we must intervene in the other party's wrong understanding. If the other party does not dispose of property due to the wrong understanding of fraud, the crime of fraud will not be established. The other party of the fraud only needs to be the person with the authority or status to dispose of the property, not necessarily the owner or possessor of the property. The act that the perpetrator provides false statements and false evidence by means of filing a civil lawsuit to enable the court to make a judgment in favor of himself, so as to obtain property is called litigation fraud, but the crime of fraud is not established (for details, see the reply on how to apply the law to defraud the court of civil judgment and possession of other people's property by forging evidence issued by the Legal Policy Research Office of the Supreme People's Procuratorate on October 14, 2002).
Thirdly, the establishment of the crime of fraud requires the victim to make property disposal after falling into a wrong understanding. Property disposition includes disposition behavior and disposition intention. Such a requirement is made to distinguish the crime of fraud from the crime of theft. The performance of disposing of property is to directly deliver the property, or promise the actor to obtain the property, or promise to transfer the property interests. If the perpetrator commits fraud and causes others to give up their property, and the perpetrator picks up the property, he shall also be punished as the crime of fraud. However, the act of putting a metal sheet similar to a coin into the vending machine to obtain the goods in the vending machine does not constitute a crime of fraud, but a crime of theft.
Finally, after the victim disposes of the property, the perpetrator obtains the property, so that the victim's property is damaged. According to the provisions of Article 266 of the criminal law, fraud of public and private property in a large amount constitutes a crime. According to the latest judicial interpretation adopted at the 49th meeting of the 11th supervisory committee of the Supreme People's Procuratorate on November 24, 2010, the amount of fraud is relatively large, starting from 3000 yuan to more than 10000 yuan. If an attempt to defraud is serious, he shall also be convicted and punished according to law.
In addition, it should be noted that the crime of fraud is not limited to defrauding physical objects, but also includes defrauding intangible objects and property interests. According to the relevant provisions of article 2l0 of the criminal law, those who use deception to defraud special invoices for value-added tax or other invoices that can be used to defraud out tax rebates and tax deductions shall be guilty of fraud.
Subject
The subject of this crime is a general subject. Any natural person who reaches the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime. That is, reaching the age of 16 can constitute the subject of this crime.
subjective element
The subjective aspect of this crime is direct intention, and has the purpose of illegal possession of public and private property.
The crime of fraud is a crime composed of natural persons, and its subjective state of mind is intentional. The form of expression is to obtain illegal property by cheating.
On the issue of "how to define the crime of fraud", if we analyze it from another angle, it will be much simpler. That is to start with the identification of the crime of fraud and see the difference between the crime of fraud and other similar civil acts or crimes, which can easily define the crime of fraud in judicial practice.
How to define the crime of fraud in judicial practice
1. The boundary between crime and non crime: (1) the act of swindling property with a small amount and little harm does not constitute the crime of fraud. (2) The normal behavior of borrowing and lending on behalf of others to buy and default on payment for goods does not have the purpose of illegally occupying others' property. It does not constitute a crime to plan and try to return the borrowed or defaulted properties.
2. The boundary between this crime and the crime of cheating: (1) the object of the crime is different: this crime is limited to defrauding others' property; The crime of swindling is to deceive by pretending to be a staff member of a state organ, and defraud him of honorary posts, titles, benefits and even "love". (2) The object of crime is different: this crime infringes the ownership of public and private property; The crime of swindling mainly infringes on the normal activities of state organs; (3) If a criminal impersonates a functionary of a state organ and swindles a huge amount of property, and the circumstances are particularly serious, he shall be punished as a crime of fraud.
3. The relationship between this crime and special fraud crime: there is a competing relationship between this crime and special fraud crime. When applying, the law should be applied according to the principle that special law is superior to common law.
4. The boundary between this crime and larceny: when the perpetrator uses both deception and theft in the implementation of criminal activities, if the main means is deception, he should be convicted of fraud; If theft plays a major role, it should be convicted of theft.
5. Handling of litigation fraud: the so-called litigation fraud refers to the behavior that the perpetrator forges evidence and illegally occupies others' property by means of court litigation. Those who commit fraud should not be investigated for criminal responsibility. If the perpetrator commits the act of forging the seal of the people's organization of the company, enterprise or institution, or instructs others to give false testimony, which constitutes a crime, the perpetrator shall be investigated for criminal responsibility for the crime of forging the seal of the people's organization of the company, enterprise or institution or the crime of hindering testimony.
To sum up, when defining the crime of fraud, we must start from the above aspects. In this way, the analysis will be much simpler and the accuracy is relatively high. If someone around you is suspected of fraud, you are advised to immediately appoint a professional lawyer to help you, so that you can better safeguard the legitimate interests of the suspect.
Sentencing standard
In fact, we can analyze the problem of "how to punish the crime of fraud" from another angle. Since it comes to the punishment of criminal crime, it is certainly inseparable from the sentencing punishment of the perpetrator. Next, let's take a look at the content of the sentencing standard of the crime of fraud to understand how to punish those who commit the crime of fraud.
How should the crime of fraud be punished?
Sentencing standard of fraud: it refers to the standard determined by taking the amount of fraud as the main factor and combined with plot factors. It is also an important symbol of the principle of legality of crime and punishment of fraud. For the sentencing standard of fraud, two factors are considered: one is the amount standard of fraud; Second, the plot factors of fraud.
Article 266 [Crime of Fraud] Whoever swindles public or private money or 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 shall only, 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 10 years and shall be fined concurrently; if the amount is especially huge, or if 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 be fined concurrently or be sentenced to confiscation of property, except as otherwise specifically provided in this Law.
In the case of fraudsters attempting to defraud a huge amount of property from targets or other serious cases, the offender shall be convicted and punished.For fraudsters who make use of telecommunications means such as sending short messages, telephone calls, internet, etc to defraud a large number of non-specific targets, where it is difficult to ascertain the defrauded amount and under any of the following circumstances, the case shall be deemed as "other serious circumstances" stipulated in Article 266 of the Criminal Law, and the offender shall be convicted of attempted fraud and punished:
(1) Sending 5,000 or more fraud messages;
(2) Making scam calls to 500 or more targets; or
(3) The deception means are abominable and cause serious harm.
In the event of a fraud which involves any of the acts stipulated in the preceding paragraph and the quantity attains 10 times or more the amount stipulated in item (1) and item (2) of the preceding paragraph or where the deception means are especially abominable and cause very serious harm, the case shall be deemed as "other very serious circumstances" stipulated in Article 266 of the Criminal Law, and the offender shall be convicted of attempted fraud and punished.
Article 262 (B) of criminal law: Minors to Engage in Activities against Public Security Administration] Whoever organizes any minor to commit any activity in violation of the public security administration such as theft, fraud, robbery and extortion and blackmail, etc. shall be sentenced to fixed-term imprisonment of no more than three years or criminal detention, and shall be fined; if the circumstance is serious, he shall be sentenced to fixed-term imprisonment of no less than three years and no more than seven years, and shall be fined concurrently.
Filing standard
Fraud crime is a kind of crime we often encounter in our daily life, and its victims are often women or the elderly. In the face of such a crime of infringing on property, our country has dealt a severe blow to it, and also stipulated the corresponding filing standard of the crime of fraud. So what is the filing standard of the crime of fraud? What is the sentencing standard?
What is the standard of filing a case of fraud
According to Interpretations of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Relating to Specific Laws Applicable for Handling of Criminal Fraud Cases: ”Where the value of defrauded public or private property is RMB3,000 to RMB10,000 and above or RMB30,000 to RMB100,000 and above or RMB500,000 and above, the amount shall be deemed respectively as "relatively large amount", "huge amount" or "very huge amount" stipulated in Article 266 of the Criminal Law.
Where the value of defrauded public or private property attains the standards for amount stipulated in Article 1 of these Interpretations and under any of the following circumstances, the offender shall be severely punished on a discretionary basis pursuant to the provisions of Article 266 of the Criminal Law: (1) Dissemination of false information through sending short messages, telephone calls or making use of internet, radio and television broadcast, newspapers and magazines, etc to defraud a large number of non-specific targets;
(2) Committing fraud in the pretext of disaster relief, rescue, flood prevention, special care, poverty alleviation, migration, relief, medical funds, etc;
(3) Committing fraud in the name of fundraising for disaster relief;
(4) Defrauding the property of disabled persons, elderly persons or persons who have lost labour capacity; or
(5) Causing the victims to commit suicide, lose sanity or other serious consequences.
Where the value of defrauded public or private property is close to the "huge amount" or "very huge amount" standard stipulated in Article 1 of these Interpretations and the case falls under any of the circumstances stipulated in the preceding paragraph or the offender is the ringleader of a fraud syndicate, the case shall be deemed respectively as "other serious circumstances" or "other very serious circumstances" stipulated in Article 266 of the Criminal Law.
Where a person who has defrauded the property of his/her close relative has reached a settlement with the close relative, the case shall generally not be dealt with as a criminal case. Where a person has defrauded the property of his/her close relative and there is a need to pursue criminal liability, the case shall be dealt with leniently on a discretionary basis.
