Analysis Of Contract Fraud

The newly established contract law makes the scope of application of the contract expand rapidly. If the contract of contract fraud is equivalent to the contract in the contract law, it will be difficult to distinguish between ordinary fraud and contractual fraud.

Therefore, we should define the contract fraud contract as written form, not including oral form and other forms.

Contract fraud occurs in the process of signing and fulfilling the contract. However, the concept of "signing" in the 224th criminal law has misplaced the stipulations in the written form of the contract law. Therefore, it is necessary to change the "signing" in the criminal law into "making", or give a broad explanation of "signing".

According to the 224th provision of the criminal law, the crime of contract fraud refers to the act of defrauding the property of the other party in the process of signing and fulfilling the contract with the purpose of illegal possession.

The concept of contract has changed greatly with the formulation of the new contract law. If it is not defined, it will directly affect the identification of the crime of contract fraud, and may lead to confusion in the application of law.

Starting from the comparison between the contract law and the economic contract law, the technical contract law and the foreign economic contract law, this article analyzes the contracts and related issues in the 224th article of the criminal law.

"Contract" is defined in the 224th article of the criminal law. According to the interpretation of the Supreme People's Court on certain issues concerning the application of the law in the trial of fraud cases, it refers to the "economic contract".

The economic contract here, according to the original intention of the legislation, does not refer specifically to the contract stipulated in the economic contract law, but also includes technical contracts and foreign-related economic contracts.

The concept of economic contract first appeared in the former Soviet Union, and its legislation was affected by it. In April 13, 1956, the Ministry of Commerce and the Ministry of local industry first adopted the concept of economic contract in the joint notification of the current industrial and commercial plan linking up several issues in economic contracts.

Before the formulation of [1] contract law, some scholars believe that the concept of economic contract does not have a more important existence value in theory and practice, and the distinction standard between economic contract and non economic contract is also hard to define accurately.

Therefore, the concept of economic contract should not be adopted in China's contract law.

[2] this view has been absorbed by the newly formulated contract law.

There are three main differences between the contract law and the "economic contract" in the contract law: (1) the main body is different.

The second provision of the economic contract law stipulates: "this Law applies to contracts between legal persons, other economic organizations, individual industrial and commercial households, and rural contractual operators, which are equal civil subjects, and each other, in order to achieve certain economic objectives and clarify the relationship between rights and obligations."

The technology contract law stipulates that the main body of its application is legal person and citizen.

The applicable body stipulated in the foreign economic contract law is the enterprise or other economic organizations (including the foreign party, including individuals).

The second provision of the contract law stipulates that "the contract referred to in this law is the agreement on the establishment, alteration and termination of civil rights and obligations between natural persons, legal persons and other organizations of equal subjects."

According to this provision, the main body of contract includes natural persons who are independent of industrial and commercial households, rural contractors, and other organizations other than economic organizations.

(2) form is different.

The technology contract law and the foreign economic contract law stipulate that contracts should be written in written form.

The economic contract law stipulates that in addition to the immediate clearance, the written form shall be adopted.

The tenth provision of the contract law stipulates: "the parties conclude contracts in written form, oral form and other forms."

At the same time, the eleventh article of the contract law also extended the written form: "written form refers to the form of contracts, letters and data messages (including telegrams, telex, facsimile, electronic data interchange and e-mail) and so on.

(3) the content is different.

According to the second provision of the contract law, the contract law regulates the relationship between civil rights and obligations other than personal relationships between equal subjects.

According to the second provision of the general principles of civil law, the relationship between civil rights and obligations refers to the property relationship and personal relationship between the citizens of the equal subject, the legal person, the citizen and the legal person.

That is to say, the contract law adjusts the property relationship between equal subjects.

At the same time, this property relationship must be in the state of paction. "Contract law is a law to adjust dynamic property relations".

However, the content of this dynamic property relationship is not equivalent to the "economic contract".

The "economic contract" should be a paid, double service contract, [3], and the contract law includes some unpaid and unilateral contracts, such as gratuitous gift, safekeeping, entrustment contract, etc.

This difference is also reflected in the basic principles of the contract law.

The economic contract law, the foreign-related economic contract law and the technical contract law stipulate the principle of mutual benefit or compensation, while the contract law does not stipulate that "the principle of compensation is not a principle that all contracts should abide by. For example, a gift contract is free. If a party voluntarily waits the other Party's obligations, the contract may also be free."

[4] strictly speaking, such contracts do not have the characteristics of market economy, they are not the real market paction contracts, but more similar to the general civil contracts.

On the one hand, the contract law expands the main body, form and content of the contract. On the other hand, it adds supplementary provisions to the nameless contract, which makes the application scope of the contract expand sharply.

If the contract fraud contract is consistent with the contract law, there will be a confusion of the "common law clause" of the "special law clause".

The following author will analyze.

The thirty-sixth provision of the contract law stipulates: "the contract is written in writing in accordance with the provisions of laws, administrative regulations or the parties concerned. If the parties fail to adopt a written form, but the other party has already performed the main obligations, the other party accepts the contract."

The 123rd article stipulates: "other laws stipulate the contract in accordance with its provisions."

The 124th article stipulates that the provisions of the general provisions of this law are applicable to the provisions of the general provisions of this law, and the provisions of this law, or other laws, are the most similar to the provisions of this law or in other laws. "

From these articles, the agreement on property pfer by both parties, regardless of content and form, can become a contract adjusted by the contract law.

As a result, it is difficult to distinguish between the 266th common crimes of criminal law and the crime of contractual fraud.

Because the parties to common fraud also have agreements on property pfer, which can be regarded as contracts (oral contracts) in accordance with the provisions of the contract law.

If there is a large number of oral contracts such as entrustment and loan between victims and fraudulent persons.

Even if the victim voluntarily gives the property to the deceitful person himself, according to the provisions of the eleventh chapter of the contract law, he may also consider that there is a gift contract.

In this way, if the contract fraud crime is equivalent to the contract in the contract law, because the crime of contract fraud is a special law in criminal law, the crime of fraud is a common law. According to the theory of criminal law, the special law is prior to the application of common law, so that the general fraud that originally applied to the 266th criminal law will be applied to the 224th part of the criminal law, which constitutes the crime of contract fraud. Finally, the crime of 266th ordinary fraud in the criminal law exists in name only, resulting in the confusion of the application of the law.

In view of the difference between the contract law and the "economic contract", we should consider three schemes to define the contract for the crime of contract fraud.

The first plan is to define the contents of the contract.

The contract is defined as a contract for pactions in a market economy.

It is based on the fact that the crime of contract fraud is classified into the eighth section of the third chapter of the criminal law that disrupts the order of the socialist market economy. The first law of the contract law stipulates: "in order to protect the legitimate rights and interests of the parties, safeguard social and economic order, and promote socialist modernization, this law is formulated."

The extension of social economic order is obviously larger than the order of market economy.

In addition, some well-known contracts stipulated in the contract law do not have the characteristics of market economy, such as gratuitous gift, custody and entrustment contracts.

But the problem is that in accordance with the relevant legislative interpretation of the contract law, the term "social economy" refers to the "market economy".

Gu Angran, director of the law and Industry Commission of the National People's Congress, said at the two session of the nine national people's Congress on the contract law of the People's Republic of China (Draft), "contract law is the basic law of the market economy."

Subsequently, Gu Angran further pointed out in the "People's Republic of China contract law" speech that "contract law is the basic law regulating market pactions", and the contract law should "better conform to and adapt to the needs of establishing a socialist market economic system, regulate market trading behavior, and ensure a unified, orderly and healthy development of the market economy".

[5] therefore, the judicial interpretation of contract fraud should be divided into two types: market paction and non market paction. It is not only difficult to operate in practice, but also contrary to the original intention of legislation.

The second plan is to define the main body of the contract.

The contract concluded between the individual industrial and commercial households and the natural persons outside the contracted rural households is excluded from the crime of contractual fraud.

Because the main body of contract fraud is the status of legal person or other organizations, and the main body of ordinary fraud is only natural persons, not including legal persons or other organizations.

However, excluding natural persons from contracts, [6] has long been criticized by civil and Commercial Jurisprudence because it is not conducive to the establishment of a unified market and unified market rules.

In addition, the natural persons outside the individual industrial and commercial households and the rural contracted households will be considered as a major progress in the contract law, which will help encourage natural persons to enter the market, participate in market competition, and activate the market economy.

The second article of the contract law changes the precedent of the "economic contract law", "technology contract law" and "foreign economic contract law" before placing "natural persons" in "legal persons or other organizations". It also embodies the importance attached to natural persons.

With the development of China's economy, the natural person's economic status and legal consciousness are constantly improving. The contract between natural persons will become more frequent and standardized. At the same time, it will play an increasingly important role in the national economic operation. If it is excluded from the crime of contractual fraud, it will lead to the lag of criminal justice over time.

Therefore, if the subject of contract fraud does not include natural persons, it is also obviously against the legislative intent of the contract law.

The third plan is to define the form of contract.

The contract for the crime of contractual fraud is defined as written form, not including oral form and other forms (other forms refer primarily to presumption form). From the perspective of non written form, its nature is basically the same as oral form, so the following may be used in oral form to refer to non written form.

The author is inclined to this plan for the following reasons: (1) the relevant legislative interpretation of the contract law has made the agreement on the pfer of property all belong to the contract in the "market paction".

From this perspective, ordinary fraud is also an act of disrupting the order of market pactions.

Moreover, from the analysis of the subjective attitude of the parties involved in the oral contract, the basis for mutual trust is not the "contract" itself, but mainly due to a trust in each other's personality (such as acquaintance).

In fact, most parties do not realize that they are making contracts when they make oral agreements, otherwise they will take written forms.

Therefore, it is considered that oral contract fraud is the use of "contract", which is still to be discussed from the point of view of the Convention.

(two) one view is that the use of verbal contracts for fraud is characterized by contract fraud, which is conducive to the blow of this behavior.

The author holds different views on this point: (1) from the perspective of the main body of contract, the difference between a unit as a contract body and a natural person is not "open mouth". When a unit enters into a contract with other subjects, it must have the signature of the unit seal or the person in charge, and the main body of the oral contract can not be a unit.

Therefore, the verbal contract swindle is identified as a common fraud. It will not indulge the unit crime because the main body of the ordinary fraud does not include the unit.

(2) identifying verbal contract fraud as contractual fraud means attributing it to economic fraud, and the starting point of economic fraud is generally higher than that of ordinary fraud.

For example, the interpretation of the Supreme People's Court on Several Issues concerning the specific application of law in the trial of fraud cases stipulates that the starting point of the amount of the crime of ordinary fraud is 2000 yuan, and the starting point of the amount of fraudulent use of bills and credit cards is 5000 yuan, and the starting point of the amount of loan fraud is as high as l yuan.

With regard to the starting point of the amount of contract fraud, some scholars believe that, when determining the starting point of the contract fraud, the starting point of the amount of contract fraud should be slightly higher than that of the ordinary fraud under the premise of referring to the starting point of the common fraud crime.

[7] if so, the crime of contract fraud and