First, the concept and its composition

Fraud refers to the act of defrauding a large amount of public or private property by fabricating facts or concealing the truth for the purpose of illegal possession.

(A) the object elements

The object of this crime is the ownership of public and private property. Some criminal activities, although they also use some deception and even pursue some illegal economic interests, are not or are not limited to the ownership of public and private property. So it does not constitute fraud. For example, abducting and selling 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, the collective or the individual, and no other illegal interests may be defrauded. Its goal should also exclude loans from financial institutions. Because this law has specifically stipulated the crime of loan fraud in article 193.

(b) objective factors

Objectively, this crime is manifested in the use of fraud to defraud a large number of public and private property. First of all, the perpetrator committed fraud, which includes two forms: one is to fabricate facts, the other is to conceal the truth; Essentially, it is an act that makes the victim fall into a wrong understanding. The content of fraud is that under certain circumstances, the victim will have a wrong understanding and make the property disposal that the perpetrator wants. Therefore, whether it is fiction or concealment of past facts, or present facts and future facts, as long as the above contents are available, it is fraud. If the fraudulent content does not make them dispose of their property, it is not fraudulent fraud. Fraud must reach the point where ordinary people can have a wrong understanding and exaggerate the goods they sell. If it is not beyond the tolerance of society, it is not fraud. There are no restrictions on the means and methods of fraud, which can be verbal fraud or action fraud; Fraud itself can be either an act or an omission, that is, it has the obligation to inform a certain fact, but failure to fulfill this obligation makes the other party fall into a wrong understanding or continue to fall into a wrong understanding, and it also belongs to fraud if the actor uses this wrong understanding to obtain property. According to the provisions of Article 300 of this Law, anyone who organizes or uses religious sects or cult organizations or uses superstition to defraud property shall be punished as fraud.

Fraud makes the other party have a wrong understanding, which is caused by the fraud of the actor; Even if the other party has some misjudgments, it does not prevent the fraud from being established. Between fraud and the disposition of property by the other party, it is necessary to introduce the misunderstanding of the other party; If the other party disposes of the property due to fraud and does not cause misunderstanding, it is not a crime of fraud. As long as the fraudulent party asks for the person who has the authority or status to dispose of the property, he should not ask for the owner or possessor of the property. By providing false statements and false evidence to file a civil lawsuit, the actor makes the court make a judgment in favor of himself, thus obtaining property, which is called litigation fraud and constitutes the crime of fraud.

The crime of fraud requires the victim to dispose of property after falling into a wrong understanding, including disposition behavior and disposition consciousness. This requirement is to distinguish fraud from theft. Disposing of property is manifested as direct delivery of property, or commitment of the actor to obtain property, or commitment to transfer property interests. If the perpetrator commits fraud and makes others give up their property, and the perpetrator picks up the property, he should also be punished as fraud. However, the act of putting a piece of metal similar to a coin into a vending machine to obtain goods in the vending machine does not constitute fraud, but only theft.

After the victim disposed of the property by fraudulent means, the actor obtained the property, thus damaging the victim's property. According to this article, it is a crime to defraud a large amount of public or private property. According to the relevant judicial interpretation, if the amount of fraud is large, it will start from 2000 yuan. But this does not mean that attempted fraud does not constitute a crime. Attempted fraud, if the circumstances are serious, should also be convicted and punished according to law. What needs to be studied is whether the perpetrator paid something of equal value while using fraud to defraud property, which constitutes a crime of fraud. Some people think that the damage caused by fraud refers to the reduction of the victim's overall property, so the above behavior is not established as fraud; Some people think that it is the loss of the victim's personal property, so the above behavior is still a crime of fraud; Others think that the crime of fraud is an infringement of faith and honesty and does not need property damage. We believe that the crime of fraud is a crime against personal property, not against all property. The victim spent 30 thousand yuan to buy 30 thousand yuan of goods because of fraud. Although the overall property is not damaged, from the perspective of personal property, if there is no fraud by the perpetrator, the victim will not spend 30,000 yuan to buy goods, and spending 30,000 yuan is the damage to personal property. Therefore, using fraudulent means to make others fall into a wrong understanding to defraud property, even if they pay a considerable amount of goods, should also be considered as fraud.

The crime of fraud is not limited to cheating tangible things, but also includes cheating intangible things and property interests. According to the relevant provisions of Article 2l0 of this Law, it is a crime of fraud to defraud special VAT invoices or other invoices that can be used to defraud tax refund or tax deduction.

(3) Main elements

The subject of this crime is the general subject, and any natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.

(4) Subjective factors

Subjectively, this crime is direct and intentional, with the purpose of illegal possession of public and private property.

Second, identify

(A) the boundaries between this crime and non-crime

L, the boundaries between fraud and lending behavior. For some reason, if the borrower fails to pay back for a long time, or fabricates a lie or conceals the truth to defraud money and materials, and cannot repay them at maturity, as long as there is no purpose of illegal possession, no profligacy, no breach of contract, no fraud or deception, and there is a real intention to repay, it still belongs to a loan dispute and does not constitute a crime of fraud.

2. The boundary between the crime of fraud and the act of defaulting on payment on behalf of others. In the name of buying goods in short supply on behalf of others, taking the payment without buying anything, misappropriating the payment without authorization, defaulting on repayment, etc., we should focus on its real purpose, the relationship between the two parties, the cause of the incident, the specific behavior of the agent, the plot and consequences of breach of contract, and correctly judge whether it has the intention of illegal possession. If you can obviously want to buy it, but you still want to return it because you can't buy it for misappropriation, you can't be punished as fraud. Anyone who swindles in the name of purchase, defrauds a large amount of property, squanders money, has no intention to return it at all, and is unable to return it, should be punished as fraud.

3. The boundary between fraud and fund-raising enterprises concealing debts due to losses. If it is indeed a fund-raising enterprise, but because of poor management, loss of debt, going out to avoid debt, or property debt disputes. This is essentially different from fraudsters who abscond with money for the purpose of illegal possession in the name of raising funds to run enterprises.

(2) The boundary between this crime and the crime of swindling and cheating.

(3) The boundary between this crime and other fraud crimes stipulated in this Law.

The remaining chapters of this law respectively stipulate crimes such as fund-raising fraud, loan fraud, financial bill fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud and contract fraud. These fraud crimes are the same as this crime in subjective and objective aspects, but they are different in subject, criminal means, subject elements and objects, which are easy to distinguish. Therefore, this article stipulates that "if there are other provisions in this law, those provisions shall prevail."

Third, punishment.

Whoever commits this crime in length 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;

2. 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;

3. 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.

According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (1996 65438+February 16), individuals who defraud public or private property of more than 2,000 yuan belong to a "large amount"; Individuals who defraud public or private property of more than 30,000 yuan belong to a "huge amount".

Individuals who defraud public or private property of more than 200,000 yuan belong to a huge amount of fraud. The huge amount of fraud is an important part of fraud, but it is not the only plot. The amount of fraud is more than 654.38+10,000 yuan, and under any of the following circumstances, it should also be considered as "the circumstances are particularly serious":

(1) ringleaders of fraud groups or principals of major fraud crimes;

(2) The recidivist or fugitive commits serious crimes;

(3) defrauding a legal person, other organization or individual of the means of production urgently needed, which seriously affects production or causes other serious losses;

(4) defrauding disaster relief, emergency rescue, flood control, special care, relief and medical funds and materials, thus causing serious consequences;

(5) Spending fraudulent property, which makes it impossible to return the fraudulent property;

(six) the use of fraudulent property for illegal and criminal activities;

(7) Having received criminal punishment for fraud;

(8) Causing the victim's death, mental disorder or other serious consequences;

(9) Other serious circumstances.

The person in charge directly responsible for the unit and other directly responsible personnel commit fraud in the name of the unit, and the proceeds of fraud are owned by the unit, and the amount is more than 50,000 yuan but less than 100,000 yuan, and the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article 152 of this Law; If the amount is more than 200,000 yuan but less than 300,000 yuan, the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article l52 of this Law.

For the crime of * * * accomplice fraud, the amount of the crime should be determined by the amount of the perpetrator's participation in * * * accomplice fraud, and the perpetrator should be punished according to his position, role and illegal income in the crime. If the fraud has been started, but the property has not been obtained due to reasons other than the will of the perpetrator, it is an attempted fraud. Attempted fraud, if the circumstances are serious, should also be convicted and punished according to law. The higher people's courts of provinces, autonomous regions and municipalities directly under the Central Government can determine the "large amount" and "huge amount" of individual fraud and the fraud committed by local units within the range of "2,000 yuan to 4,000 yuan" and "30,000 yuan to 50,000 yuan", and investigate the criminal responsibility of the relevant personnel according to the economic development of the local area.