Author: Jin Hanming, a fraud lawyer, secretary general of the Fraud Defense and Research Center of Guangqiang Law Firm
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Regarding the demarcation between the crime of fraud and contract fraud and civil fraud and civil economic disputes, it includes not only the determination of the degree of deception in the crime of fraud, that is, whether it has reached the level of fabricating facts and concealing the truth in the sense of the criminal law, but also the determination of the purpose of illegal possession, that is, how to demonstrate through the objective conduct involved in the case that even if the perpetrator has a certain degree of deception, the purpose of illegal possession can be excluded, it should be determined that the crime of fraud is not constituted.
In addition, the question of the relationship between the inclusion and inclusion of the crime of fraud and civil fraud and civil economic disputes, or the distinction between boundaries is not a contradictory issue. There is an implicit red line of criminal law, which can be determined as a criminal act of fraud, and if the red line is reached, it can be determined as a criminal act of fraud, and if the red line is not reached, it will still be interpreted as a civil fraud act or a civil economic dispute.
In response to this problem, lawyer Jin has not advocated a clear demarcation standard to distinguish the relationship between fraud crimes, civil fraud, and civil economic disputes, also because of the abstract nature of theory and the difficulty of distinguishing between practice, the so-called distinguishing criteria cannot be accurately applied to every specific case, so it is difficult for the generalized distinction criteria in words to become the demarcation criteria in practice.
It is more specific and practical to use cases in practice to demarcate and provide defense guidance, because the vast majority of cases that go to criminal proceedings are facts and evidence that prove the guilt of the parties, as well as facts and evidence that prove that the parties do not constitute a crime.
However, there are still many people who will take the standard of proof in criminal proceedings, arguing that as long as there is no reasonable doubt and as long as there is evidence of innocence in even one aspect, the person concerned should not constitute a crime. This theory is indeed correct, but in practice, it is often difficult to achieve the effect of exculpation if the standard of proof is only emphasized in the vast majority of cases, hoping to grasp a certain issue and talk about reasonable doubt.
Therefore, how to prove that the conduct involved in the case is a civil economic dispute or a civil fraud, rather than a crime of fraud, and how to fully explain and comprehensively demonstrate the facts and evidence involved in the case are the core issues of the case defense.
In view of the degree of deception in fraud cases, how to determine that the cases in judicial practice have not reached the level of fraud crimes, and how to prove that the parties do not have the purpose of illegal possession in the presence of certain unfavorable evidence, we combine some acquittal precedents in judicial practice.
Not Guilty Case 1: Case of Hong being charged with contract fraud, (2002) Xia Xing Chu Zi No. 51.
The gist of the adjudication: The defendant Hong did have false assets and concealment of debts in the equity exchange with Hong Kong Group F. However, looking at all the facts of this case, it should be determined that the act was civil fraud in economic activities, not contract fraud. The crime of contract fraud refers to the conduct of the perpetrator to defraud the other party of property in the process of signing or performing a contract for the purpose of illegal possession, and the amount is relatively large, or only a small part of the contract is performed, and the vast majority of the contractual obligations are not performed in good faith in order to defraud others' property. Civil fraud refers to the illegal act of one party deliberately using an untrue situation as a true expression of intent to cause the other party to fall into a misunderstanding, so as to achieve, change, and eliminate a certain civil legal relationship. The difference between the two is: the subjective purpose is different, and the intentional content of the act is different. The parties to a civil fraud act adopt deceptive methods with the aim of causing the counterparty to have a wrong understanding, make a legal act beneficial to themselves, and then seek certain "illegal benefits" through the performance of the legal act by both parties, which is essentially profit-making; Although the crime of contract fraud can objectively cause the "expression of intent" of a certain civil juristic act of another person, the actor does not bear the sincerity of the agreed civil obligation, but only wants to make the other party perform the "unilateral obligation" of the civil legal relationship that does not exist at all, and directly and illegally take possession of the other party's property. Therefore, the crime of contract fraud is intentional to directly and illegally occupy public or private property, while civil fraud is to indirectly obtain illegal property benefits through the performance of the contract between the two parties. In this case, the defendant Hong falsely listed some assets and concealed some bank loan debts when he carried out the equity exchange with Group F, which violated certain promises and guarantees made to Group F in the annex to the replacement contract. However, the purpose of fabricating facts and concealing the truth was to induce the parties to reach an equity exchange agreement and obtain the funds required for the renovation and operation of Xiamen H Hotel, with the purpose of making profits by performing the replacement contract, and not to take possession of the property of Group F through such fraudulent acts.
Not Guilty Case 2: Criminal Verdict of First Instance in Kong's Fraud Case, (2016) E 2802 Xingchu No. 29.
The gist of the adjudication: Defendant Kong, subjectively for the purpose of making money, objectively used some false publicity, shoddy products, and deliberately concealed the true situation to induce the other party to make a false expression of intent, and to seek certain benefits through the performance of the agreed act, and his conduct was civil fraud. Defendant Kong's subjective motives and objective conduct did not meet the legal characteristics of the crime of fraud and did not constitute the crime of fraud.
Not-guilty case 3: Case of Zeng's suspected contract fraud, (2015) Enshi Zhong Xing Zhong Zi No. 226.
Gist of the adjudication: This court held that the defendant Zeng X in the original trial signed a contract with Xiang X A, that the defendant in the original trial Zeng X did not fabricate facts or conceal the truth, and that the contract was an expression of the true intentions of both parties and was legal and valid. In the course of the performance of the contract, the defendant Zeng X and Xiang X A had a dispute over the quality of the product, and when the two parties could not reach an agreement, the defendant Zeng X left Xiang X A's house and returned to his home in Hunan Province. Although the defendant in the original trial, Zeng X, changed his ** number, he did not flee, nor did he change his place of residence and place of business, and Xiang X A could completely resolve the dispute through civil litigation.
Not Guilty Case 4: Case of Zhong X Suspected of Contract Fraud, (2014) Gan Xing Er Zhong Zi No. 38.
The gist of the adjudication: The reason for the dispute between Zhong Moumou and FK Company was due to the inability to reach an agreement on who should bear the cost of the increase in the change of some engineering changes in the construction process. In addition, before transporting the construction materials from Jiuquan, in order to "preserve evidence", the Jiuquan Integrity Notary Office promptly applied to the Jiuquan Integrity Notary Office to notarize the progress of the "two halls" project and the current status of materials and equipment of FK Company, and entrusted a lawyer to file a civil lawsuit with the Jiuquan Intermediate People's Court on the grounds of FK Company's breach of contract. It is explained that Zhong Moumou wants to resolve the dispute with Fukang Company through legal procedures.
Not Guilty Case 5: Case of Liao Moumou Suspected of Contract Fraud, (2009) Shen Zhong Fa Xing Er Zhong Zi No. 867.
The gist of the adjudication: Liao and Wang did not sign a written agreement when they negotiated the extension, and it cannot be determined that the exact time for the extension of the agreement between the two parties can be determined, but it can be determined that the two parties have changed the repayment period agreed in the contract due to quality problems in the goods. The other two batches of payment were due to the fact that the settlement time had not yet arrived, and the defendant in the original trial had not received the payment from the buyers, Mr. Dong and Mr. Su, and had not settled the payment with Brother G. Therefore, this court held that the arrears and disputes in this case were in the nature of civil and economic disputes, and that Brother G Company had taken criminal measures prematurely by reporting the case to the public security organ on November 20, 2006, before the deadline for payment.
Not-guilty case 6: Case of Zeng's suspected contract fraud, (2015) Mo Xing Chu Zi No. 5.
The gist of the adjudication: It can be seen from the above-mentioned conduct of the defendant Zeng that the defendant Zeng actively performed his contractual obligations to a certain extent after the contract was signed. Defendant Zeng did not inform Xiang X to leave Xiang's home, return to the place of household registration and habitual residence, and change the ** number, but the above acts occurred when the defendant Zeng X and Xiang X had a dispute over the quality and ** of the products purchased, and the two parties could not reach an agreement through negotiation, and the defendant Zeng X did not deliberately avoid it in other places, so the defendant Zeng's act cannot be determined to be an act of escaping for the purpose of defrauding others of property after receiving the goods paid by the other party. ......This court is of the opinion that the defendant Zeng X subjectively did not have the criminal intent to illegally take possession of other people's property, and objectively did not carry out the act of defrauding the other party's property by fabricating facts or concealing the truth in the process of signing and performing the contract, and his conduct did not meet the statutory constitutive elements of the crime of contract fraud and did not constitute the crime of contract fraud. It was a contractual dispute between the defendant Zeng and Xiang.
Not Guilty Case 7: Case of Gong's Suspected Contract Fraud, (2002) Huang Xing Chu Zi No. 136.
The gist of the adjudication: The defendant's act of being able to return the money for the goods at that time but not returning it but misappropriating it for other purposes should be found to be an act of misappropriating the funds of others, and judging from the circumstances of his use of the money, it was not a squander, but was used in a normal business field, and the defendant did return nearly half of the money, thus showing that the defendant did not intend to illegally take possession of the money of others for a long time, and the sale of goods was not for the purpose of illegal possession. It shows that the conduct of the defendant's company does not meet the constitutive elements of the crime of contract fraud, but should be an economic dispute.
Not Guilty Case 8: Case of Zhang's Suspected Contract Fraud, Beijing Higher People's Court (2014) Gao Xing Zhong Zi No. 534.
The gist of the adjudication: From a subjective point of view, in accordance with the principle of "sale and purchase without breaking the lease" in the civil law, Zhang had ensured the safety of Chen's investment through the filing and registration of the housing lease contract, that is, the rental income guarantee, and once a capital risk occurred, Chen could obtain relief in accordance with the Beijing Housing Lease Contract and the Supplementary Agreement, and the money paid by Chen was not an inevitable loss, so it was difficult to determine that Zhang had the subjective intention of illegal possession. From an objective point of view, the authenticity of the Short-term Fund Position Lending Agreement and the Loan Agreement provided by Zhang cannot be ruled out, and according to the provisions of the Loan Agreement, the acquisition of the equity involved in the case is precisely in line with the purpose of the loan; Chen stopped investing after June 2009, and only one-third of the original investment of 54 million yuan was paid, and Zhang chose to cooperate with other companies after being released on bail in October 2009, and Chen had formally defaulted. Therefore, the available evidence cannot determine that Zhang used deceptive means in the process of cooperation. According to the relevant judicial interpretation of the Supreme People's Court on the issue of the minimum guarantee clause in the joint venture contract, the series of agreements signed by Zhang and Chen are called cooperation, but they are actually loans, and the creditor's rights and debts disputes between the two parties can be resolved through civil litigation under the condition that Zhang provides effective guarantees.
Not Guilty Case 9: Case of Liao Mouwan Suspected of Contract Fraud, (1998) Chenzhong Xing Zhong Zi No. 75.
The gist of the adjudication: In the process of signing and performing the contract, the appellant Liao did not have the intention of illegally taking possession of the plaintiff's payment in the attached civil lawsuit of the original trial, nor did he fabricate and conceal the truth, but actively tried to contact and organize the source of goods. The act does not constitute a crime if the contract is not fulfilled only for other objective reasons. Appellant Liao Mouwan argued that the case was not a contract fraud, but an economic contract dispute.
Not Guilty Case 10: Case of Chen Mouyi Suspected of Contract Fraud, (2015) Hui Zhong Fa Xing Er Zhong Zi No. 97
The gist of the adjudication: The crime of contract fraud requires the defendant to subjectively have the purpose of illegally taking possession of the victim's property, and in this case, after the appellant unit signed the "Commercial Housing Sales Contract" with Wu, and Wu paid a total of 1 million yuan for the purchase of the house, on September 26, 2012, Wu and the appellant unit signed the "Shop Leaseback Contract" to lease the shop involved in the case back to the appellant unit for use for a lease term of 5 years. The above facts show that after the appellant unit sold the shop involved in the case to Wu and collected part of the house payment, it actually delivered the shop to the purchaser for use. As the main body of the development and sales of the community where the shops involved in the case are located, the appellant unit has the ability to perform the contract for the sale and purchase of commercial housing, and the appellant unit and the appellant did not evade or cancel the company after receiving the purchase money from Wu. Therefore, there is no evidence in this case to prove that the appellant and the appellant subjectively had the intention to illegally take possession of others' property. The appellate unit and appellant Chen Mouyi's conduct does not meet the constitutive elements of the crime of contract fraud as provided for in article 224 of the Criminal Law, and it is essentially a civil dispute.
Not Guilty Case 11: Case of Ye Moumou Suspected of Fraud, (2016) Yue Xing Zhong No. 631.
The gist of the adjudication: It is determined that the evidence of Ye Moumou's fictitious reason for borrowing money and his intention to illegally occupy the land of Guanhua Garden in Huadu District when he borrowed money from Lin is insufficient, and this bill is also a pure private lending dispute, and Ye Moumou's behavior does not constitute the crime of fraud.
Not Guilty Case 12: Case of Fan Moumou Suspected of Fraud, (2014) Tong Xing Chu Zi No. 90.
The gist of the adjudication: When the defendant Fan XX signed an agreement with Chen XX and others to collect the mortgage or deposit, the victim was aware of the state of the coal mine and also did part of the work in the coal mine. The defendant did not fabricate the right to operate the coal mine or conceal the production status of the coal mine, and the economic dispute arose due to the inability to continue cooperation due to the merger and reorganization of the coal mine, which was an economic dispute arising from improper performance in the course of production and operation, and was a civil economic dispute.