abstract

In real life, fraud and theft are two common crimes, and sometimes they have some similar characteristics in behavior. Through the analysis of several cases, this paper draws the following conclusion: under the interwoven situation of fraud and theft, "whether the victim's property loss is caused by his punishment" can be used as one of the qualitative criteria of criminal behavior.

Keywords: fraud, theft and punishment

Fraud and theft are two common crimes that infringe on other people's property rights in real life, and the difference between these two crimes is mainly reflected in the objective aspect. Usually, fraud and theft are easy to distinguish, but when they are intertwined, a clear boundary is needed to distinguish fraud and theft. Through the analysis of several cases and the objective comparison between fraud and theft, this paper holds that the difference between fraud and theft lies in whether the property loss is the result of the victim's disposal of property. If the victim's ultimate property loss is due to his own disciplinary action, the perpetrator constitutes fraud, and vice versa.

Basic information:

Defendant Chen Mou, female, 30 years old, from Nanyang City, Henan Province, is a primary school teacher.

Defendant Chen Mou bought a fake gold necklace in Guangzhou and arrived in Shanghai on March 1998. On the same day, when she was in the gold shop of Shanghai shopping mall, she saw a gold necklace weighing 24.09 grams and worth 4600.30 yuan at the counter, which was the same as the fake gold necklace she bought, and she had the evil idea of exchanging fake for real. She immediately went to Huangpu Commercial Building to buy a gold pendant and a pen, changed the weight label of the pendant to 24.09 grams, and tied it on a fake gold necklace. Later, he went back to the gold shop in Shanghai shopping mall and took advantage of the salesperson's unprepared opportunity to replace his fake gold necklace with a real one in the name of choosing a gold necklace. The next day, Chen Mou sold the gold necklace and got 1000 yuan. Later Chen went to Guangzhou to buy 1 1 fake gold necklaces, 9 fake gold rings and correction fluid, and returned to Shanghai on March 26th of the same year. On March 28th, Chen came to the gold shop of Shanghai shopping mall again, and got a gold necklace with a weight of 1 1.09g and a value of 12 18.30 yuan by the above means. On the same day, when Chen replaced a gold necklace with a weight of19.78g and a value of 22 13.90 yuan by the same means, he was found by the salesman and caught on the spot. After the incident, Chen Mou's attitude of pleading guilty was still good, and he could actively refund the stolen money.

How should Chen Mou's behavior be described? There are three views: the first view is that Chen Mou's exchange of fake gold necklaces for real gold necklaces is a method of fabricating facts and concealing the truth to defraud public and private property, which constitutes a crime of fraud. The second view is that Chen Mou, the defendant, bought a gold necklace in disguise for the purpose of illegal possession, and secretly stole the gold necklace when the salesperson was unprepared, and the amount was large, which constituted theft. The third view holds that Chen Mou not only swindled, but also stole the illegal possession of the gold necklace, which constituted fraud and theft respectively. Among them, fraud is the means and theft is the purpose, and the two are involved. According to the principle of combined punishment for one crime, the theft with higher statutory punishment should be convicted and punished. I agree with the second view that Chen Mou's behavior constitutes theft.

Crime of fraud: refers to the act of defrauding a large number of public and private property by fictional facts or concealing the truth for the purpose of illegal possession. It is generally believed that the basic structure of this crime is: the actor commits fraud for the purpose of illegal possession → the victim has a wrong understanding → the victim disposes of the property based on the wrong understanding → the actor obtains the property → the victim suffers property losses. In other words, the crime of fraud requires the victim to have a wrong understanding of the truth based on the fraudulent behavior of the perpetrator, and then voluntarily dispose of the property out of true inner meaning. A series of causal relationships have been formed here: because the actor fabricated facts or concealed the truth, the victim had a wrong understanding, which led to the victim's behavior of disposing of property in favor of the actor. In this causal chain, fraud is the cause and focus of all the activities of the actor. Misunderstanding is not only the intermediary between fraud and punishment, but also the key to the success of fraud. If the perpetrator's fraud is not enough to make the victim misunderstand the truth, the victim will naturally not do anything harmful to himself but beneficial to the perpetrator. Punishment is the result, which realizes the transfer of property between the victim and the perpetrator and makes the perpetrator's criminal purpose finally succeed.

Theft: refers to the act of secretly stealing a large amount of public or private property or stealing public or private property many times for the purpose of illegal possession. Theft refers to the act of transferring property to oneself or a third person by means of non-violent coercion against the will of the property owner. First of all, the means of stealing is peaceful. Theft is only aimed at property and does not endanger the victim's personal life, which is different from robbery and robbery. Secondly, it is against the will of the victim that the actor obtains the property, that is, the victim is unwilling to let the actor obtain the property, and it doesn't matter whether the theft is secret or not. Usually, when the perpetrator steals property, it is often not noticed by the victim, but not all thefts are carried out without the victim's knowledge. For example, the security guard saw small stolen property on the monitor. Third, theft is the process of destroying the victim's possession and domination of property and establishing new possession and domination. If it only destroys the victim's possession and domination of property, but does not establish new possession and domination, it does not belong to theft.

In this case, the defendant Chen Mou tampered with the weight label of the gold pendant and tied it on a fake gold necklace in exchange for a real gold necklace. However, Chen Mou finally got the gold necklace when the shop assistant was not prepared to change it himself. This fake gold necklace played a role in covering Chen Mou's theft, so that it would not be discovered immediately after the theft. The change in the ownership relationship of real gold necklaces is not because the salesman got into a misunderstanding and took the initiative to deliver them to Chen, but because he was unprepared and took the opportunity to replace them. Therefore, theft is the key to realize Chen Mou's criminal purpose, and Chen Mou's behavior should be defined as theft rather than fraud. In addition, Chen Mou's behavior does not belong to implicated offense. The so-called implicated offense refers to the act of committing a crime, and its method or result behavior violates other crimes. Specifically, the actor's purpose is only to commit a crime, a method behavior or a result behavior, and violates other different crimes, methods behaviors or purpose behaviors, or there is an implicated relationship between the cause behavior and the result behavior. This kind of criminal phenomenon is implicated offense. (2) One of the important conditions to constitute an implicated offense is that the two acts committed by the perpetrator must constitute a crime respectively. If one of the acts cannot be convicted independently, implicated offense cannot be established. In this case, the defendant Chen Mou did cheat in the process of committing the crime of theft, but this behavior did not make the salesperson fall into misunderstanding and dispose of the property. Chen Mou's fraud didn't play a key role in the whole criminal process, so it can't constitute fraud alone. Therefore, Chen Mou's behavior cannot be implicated in crime, let alone be severely punished.

Through the analysis of the above cases and the objective comparison between fraud and theft, it can be concluded that whether the property loss is caused by the victim's disposal of property is the key to distinguish fraud from theft. In general, as long as it is defined according to this standard, it is not difficult to distinguish. Even in the criminal activities intertwined with fraud and theft, it is not difficult to distinguish fraud from theft as long as we look at the key means in the process of illegal possession of property by the actor. Some scholars believe that "whether the victim is misunderstood and' voluntarily' disposes of the property is the key to distinguish theft from fraud. I think "falling into a wrong understanding" is a prerequisite for the establishment of fraud, and it is also an important element to define the crime and non-crime of fraud. If you don't dispose of your property voluntarily out of misunderstanding, the other party's behavior does not constitute fraud at all. This paper discusses that the difference between fraud and theft is misunderstood, which is the proper meaning of the victim's punishment behavior and does not need special expression. Otherwise, people's focus will shift to "wrong understanding", but in fact, the key lies in punishment.

General fraud, usually only the injured party and the injured party participate. In this case, people will not have much disagreement about the meaning of "punishment". However, in the special case of fraud-triangle fraud, the meaning of "punishment" needs to be further explained. In triangle fraud, besides the perpetrator and the victim, there is a third person who is not at fault. It is the third person who is deceived by the perpetrator, not the victim who disposes of the property. The most typical is litigation fraud. The actor deceives the judge to make a wrong judgment in his favor, thus illegally obtaining money or things. In litigation fraud, only the judge is deceived, and the victim knows the truth very well and will not be deceived. The actor used the public power in the hands of the judge to force the victim to hand over the property. This is slightly different from the description of fraud in the general theory. The victim's disposition of property is not based on misunderstanding, but under the pressure of public power. Some scholars explain litigation fraud like this: "As long as the other party of fraud seeks the person who has the right or status to dispose of the property, don't seek the owner or possessor of the property." I agree with this view. The purpose of deception is to obtain property. Whether the deceived person is the owner or possessor of the property, as long as he has the authority or status to dispose of the property, the actor's purpose can be realized, which is essentially the same as directly deceiving the owner or possessor of the property and obtaining the property. For example, A often goes to the supermarket and finds that when shoppers pay, they always discard invoices or receipts. One day, A found the shopping receipt of woman B in the supermarket and asked B to return the shopping. B angrily condemned and argued with A. When the supermarket called the police, the police couldn't tell the truth and asked B to give the shopping to A because A had a shopping voucher. Afterwards, it was pointed out that A had used the same method to illegally obtain property for many times in other supermarkets. Some scholars believe that A is an indirect principal offender of theft. A uses the unsuspecting police to form psychological pressure on B and hand over the property. In this case, the property handed over by Party B does not have the effect of consent. B's holding was destroyed and A established its own holding. A because B's "internal free will decision" has been destroyed, it does not constitute fraud, and handing over property is not disposing of property. I think this case is similar to litigation fraud. Both A and B know the truth. If you only use the shopping vouchers in A's hand, B will not hand over the property. In other words, A's fraud has no effect on B, but A uses the unsuspecting police. Although in this case, the police have no right to decide the ownership of property, in people's minds, the police are the representatives of public power, and the police's intervention will more or less produce certain psychological pressure on the parties. In order to avoid causing trouble, even if Party B knows the truth, it has no choice but to hand over the property. The crux of the problem lies in whether B's behavior of handing over the property belongs to the disposition of the property. How to understand "punishment"? The scholar believes that the reason that does not constitute the crime of fraud is that B's "internal free will decision" is destroyed, and the surrender of property is forced by the psychological pressure caused by the police, not B's own free will decision. This kind of "free will decision" has been destroyed. Isn't the punishment in this case all invalid? In fact, as long as we have a clear understanding of the disciplinary action and its legal consequences, and make disciplinary actions based on this understanding, even if this kind of punishment is contrary to our inner feelings, we should also think that the expression of will is true and the disciplinary action is effective. In short, the key is not "willing" but "knowing". Of course, the premise of "knowing" is to have a clear understanding of the truth. When there is no understanding of punishment, such as minors and mental patients without civil capacity, their punishment is invalid. If the actor obtains property from minors or mental patients who have no ability to dispose of it, because the victim has no disciplinary action, the actor's behavior of obtaining property is no different from theft, and only theft is established.

References:

① Zhang Mingkai: Criminal Law (II), Law Press, 1997, p. 779.

② General Theory of Crime, edited by Ma Kechang, Wuhan University Press, 1999, p. 680.

③ Chen Xingliang, editor-in-chief: Comments on Difficult Criminal Cases, China People's Public Security University Press, 1998, p.315.

④ Zhang Mingkai: Criminal Law (II), Law Press, 1997, p. 780.

⑤ Lin Dongmao: Fraud or Theft —— Case Analysis, Journal of Criminal Law, Vol.43, No.2. ..