In October 2013, the defendant Wu Moumou entered Chengdu Zhongta Technology *** as a salesperson, which is located on the 14th floor of Shudu Center, Tianfu Second Street, Chengdu High-tech Zone. The company's legal representative, Fu Moumou (prosecuted), staff member Lu Moumou1 (sentenced) and others, together with Wu Moumou and other sales staff, fabricated the way that the buyer wanted to buy the victim's "3G keywords", and after winning the victim's trust, defrauded the victim of upgrading and maintenance fees on the grounds of upgrading the "3G keywords" in order to sell them smoothly. Among them, Wu Moumou, as a salesperson, participated in the fraud of the victim Han, and defrauded 20,000 yuan and obtained the corresponding commission.
On January 21, 2018, Wu Moumou was arrested by the police at Chengdu East Railway Station.
1.Wu XX was arranged by the personnel of the unit to commit the crime of fraud, and only received a part of the commission, and played a small role in the joint crime, and was an accomplice.
2.Wu Moumou has no criminal record or bad record, and is a first-time offender.
3.Wu XX pleaded guilty to all the facts of the accusation in court, and his attitude in admitting guilt has always been good, and he has shown remorse.
4.It is hoped that the court will consider the possibility of this case being characterized as a crime of contract fraud.
1. Defendant Wu XX committed the crime of fraud and was sentenced to seven months imprisonment and a fine of 3,000 yuan.
2. Order defendant Wu XX to make restitution to victim Han X for his unlawful gains.
The fraud in the crime of fraud is manifested in the perpetrator expressing some false matter to the deceived person, and it is customary to use the expression "the perpetrator fabricates facts and conceals the truth" in the interpretation of China's criminal law. The so-called "fictitious facts" refer to the fabrication of facts that objectively do not exist or could not have happened at all. It should be noted that the facts fabricated by the perpetrator can be both all facts and partial facts; Facts fabricated by the perpetrator may be proved by the perpetrator by presenting some kind of evidence, or no evidence may be presented. If all the matters raised by the perpetrator are true, the deception in the crime of fraud is not established. The so-called "concealment of the truth" refers to the fact that the perpetrator deliberately fails to inform the other party of the true situation, and causes the other party to continue to fall into misunderstanding, of course, this is premised on the perpetrator's obligation to inform the other party of the truth.
It should also be noted that, since the crime of fraud infringes on the legal interests of property (as can be proved by the legislator's inclusion of the crime of fraud in the crime of infringement of property), the fraud in the crime of fraud must also be an act that causes the deceived person to fall into or continue to maintain a misunderstanding of the disposition of property. That is to say, although the perpetrator objectively also carried out a certain "deceptive act", the content of which would not cause the other party to make a certain act of disposing of property, it is not a deceptive act in the crime of fraud. Therefore, even if the other party is subjected to a wrong act, if it is not an act that causes the other party to carry out the act of delivery or other disposition of property based on the mistake, the act cannot be said to be an act of "deception" as an act of carrying out the crime of fraud.
The crime of fraud is a natural crime and a crime that clearly violates ethics and morals. It is different from the statutory offense who violates the law but does not obviously violate ethics and morals, and an ordinary person with normal rationality does not need to rely on legal knowledge, relying on his own social life experience and simple ethical and moral concepts, he can judge which behaviors are fraud. Therefore, the role of intuition and experience in judging the purpose of illegal possession of the crime of fraud is much greater and more accurate than conceptual analysis and logical reasoning. For example, if the act of obtaining resettlement benefits by deception in the process of demolition and resettlement is simply analyzed conceptually, it seems to be an act of fabricating facts and concealing the truth to obtain property by deception, and can be characterized as the crime of fraud; However, if we use the intuition of ordinary people, we will find that this kind of behavior is far from the common street scams, telecommunications network scams, and scams in economic life. At this time, we should trust the intuition of ordinary people rather than conceptual analysis. Therefore, the conclusions drawn through conceptual analysis and logical reasoning must be verified by experience, and logical conclusions that have not been verified by experience are unreliable.
Relevant legal knowledge:
What to do if you encounter contract fraud
Whether it is civil fraud in the contract or criminal fraud in the contract, it is illegal and must bear the corresponding legal responsibility. In accordance with the provisions of the Civil and Criminal Code on liability for contract fraud, the following remedies may be taken in the event of a problem:
1. Negotiate changes and termination of contracts. Negotiate changes, including amendments or additions to the contents of the contract. Termination through negotiation means that the parties terminate the contract in advance before the expiration of the validity period of the contractual relationship. Negotiated variation and negotiated removal of this remedy have their limitations, and the fraudulent party often refuses them, in which case the defrauded party should take other measures.
2. Non-performance. Failure to perform is applicable to the situation where the defrauded party finds that the signed contract does not comply with the provisions of the law, the other party is suspected of fraud, and the contract signed by the two parties may be fraudulent and invalid. In such cases, the defrauded party should temporarily suspend the performance of the contract, such as non-delivery and non-payment, so as not to cause the property to be unable to be returned.
3. Suspension of performance. Suspension of performance is applicable when the deceived party has already started to perform, but has not yet completed the performance, and it is found that the contract may be fraudulent and the other party is suspected of fraud. In such cases, the defrauded party shall temporarily suspend performance.
4. Request the people's court to confirm that the contract is invalid. If the defrauded party discovers that the contract is fraudulent before or during the performance of the contract, and the other party is suspected of fraud, and the two parties have not entered into a written arbitration agreement, they can directly file a lawsuit with the people's court to confirm that the fraudulent contract is invalid. In the process of requesting the people's court to confirm the invalidity of the contract, it should be noted that: if the other party is suspected of fraud, it should be prosecuted in a timely manner; Make adequate preparations before filing a complaint, including collecting evidence and writing a complaint; Where it is discovered that the fraudulent party might dispose of or transfer property that has already been performed, it shall apply to the people's court for litigation property preservation in accordance with law.
5. Report the case to the judicial organ in a timely manner. Many cases of contract fraud are criminal offenses and the fraudulent party should be held criminally liable. After discovering that the fraudulent party is unable to perform on concealed assets or that the fraudulent party has absconded, the defrauded party shall promptly report the case to the public security organs, people's procuratorates or people's courts, and actively provide various clues, collect evidence of contract fraud, and assist the judicial organs in quickly detecting contract fraud cases, so as to recover the economic losses suffered due to contract fraud.
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