Introduction: In real life, people often ask "masters" for help due to project bidding, project recommendation, household registration, job arrangement, job promotion, evasion of punishment, etc., and the process of asking for help is often introduced through layers of introduction, and the party who spends money is often deceived, and this kind of deception may constitute the crime of fraud in the criminal law. "Solicitation" fraud refers to a type of fraud in which the perpetrator fabricates special service abilities by fabricating identity backgrounds, personal relationships, etc., and defrauds others of their property in the name of "service fees" or "solicitation of expenses" by accepting requests from others to handle relevant matters. Solicitation contract fraud is a common form of fraud. The crime of fraud refers to the use of deceptive means such as fabricating facts or concealing the truth for the purpose of illegal possession to defraud the other party's property of a relatively large amount. This article will determine the crime of entrustment fraud, in order to provide appropriate ideas for victims of entrustment fraud to protect their own rights and interests.
1. Determination of the purpose of illegal possession.
According to the provisions of China's Criminal Law, the establishment of illegal possession is the key fact constituting the crime of fraud, so determining whether the perpetrator subjectively has the "purpose of illegal possession" often becomes the key to the verdict.
1) Strictly distinguish between "possession" in the context of civil law and criminal law
In both civil and criminal contexts, "possession" has different meanings. In the context of civil law, possession is an important institution of modern property law. Before distinguishing between the concepts of possession in civil law and criminal law, it is also clear that possession and possession are completely different concepts, and possession is a positive power of ownership, which refers to the fact that the owner has control over the subject matter. According to the general theory, possession refers to the possessor's de facto control and domination of the object. Possession in criminal law refers to the state of de facto domination and management of property. Possession in civil law must be based on one's own will, while possession in criminal law is not limited to this and also includes possession for others. It is precisely because of the difference between the meaning of possession in the context of civil law and criminal law that some scholars believe that possession is a concept in civil law, and possession in criminal law is actually possession.
2) Determination of illegal possession in the Criminal Law.
The crime of fraud is when the perpetrator fabricates facts and conceals the truth for the purpose of illegal possession, causing the other party to have a misunderstanding, and based on this misunderstanding, the victim voluntarily makes a wrong disposition of property. The subjective and objective constituent elements of the crime, i.e., "illegal possession for the purpose - deceptive conduct - wrongful disposition of property" are the three key constituent elements.
With regard to the meaning of unlawful possession, there are three main theories in foreign criminal law, namely, the doctrine of exclusion plus the intention of exploitation, the doctrine of exclusion of intent and the doctrine of exploitation. The English common law has always regarded "the intention to permanently deprive others of their property" as the subjective element of theft, fraud and other crimes, so temporary misappropriation and fraudulent use do not constitute theft and fraud. According to the general theory, the purpose of illegal possession refers to the intention of excluding the right holder, disposing of the property of others as one's own property, and using and disposing of it in accordance with the purpose of the property.
II. Judicial practice of the crime of solicitation-type fraud and solicitation-type civil disputes.
In judicial practice, the determination of the crime of solicitation fraud shall be specifically analyzed in light of the circumstances of the specific case. The following are some typical cases of judicial practice:
Case 1: The defendant Zhang induced the victim Li to sign a construction contract and pay for the project on the grounds of a fictitious engineering project. Later, Zhang used the proceeds for personal consumption and debt repayment. After trial, the court held that Zhang defrauded others of their property by means of fabricating facts for the purpose of illegal possession, which constituted the crime of contract fraud.
Case 2: In 2018, Mr. He met a third person, Mr. Zhang, and expressed to the third person, Mr. Zhang, that he wanted to transfer the child's trust relationship to school in the city. Zhang introduced the defendant Tian to He, and Tian claimed that he could handle the transfer of the children to another school, and the two children were 400,000 yuan. Later, He transferred 20,000 yuan to Zhang and 90,000 yuan to defendant Tian. Soon, due to He's shortage of funds and difficulties in life, he terminated the procedures for transferring his children to school, and asked Zhang and Tian to return 110,000 yuan, and the two "blacked" He's WeChat and couldn't be contacted from then on. He sued the court, requesting Zhang and Tian to return 110,000 yuan. After mediation by the People's Court of Nanshan District, Shenzhen, Guangdong Province, the plaintiff withdrew the lawsuit against Tian and reached mediation with a third party, Zhang, who returned the deposit of 20,000 yuan received from the plaintiff. However, the defendant Tian has not returned the 90,000 yuan deposit collected to He. Therefore, He reported the crime of fraud to the public security organs, and after the public security organs accepted it, the people's procuratorate initiated a public prosecution, but in the end, the people's court found that Tian did not constitute the crime of fraud.
Case 3: The defendants Otome and Otoman were originally husband and wife, and the two registered for divorce on August 22, 2017. Defendant Otome and Plaintiff A were introduced to each other by Defendant B's mother and Plaintiff A's sister because Defendant B had retired Plaintiff A and was able to receive a pension. On April 2, 2016, the defendant Otome obtained 25,000 yuan from the plaintiff A, claiming that it was the upfront expenses for retirement. For this reason, the defendant Otome wrote an IOU to the plaintiff and agreed to return it if the matter could not be completed. On July 12, 2016, the defendant Otome obtained another 68,000 yuan from the plaintiff, claiming that it was for the insurance premiums paid for retirement. The defendant, Otome, issued an IOU on behalf of the plaintiff. In September 2017, there was no news of what the defendant Otome had promised. The plaintiff went to the social security department to find out and was told that there was no such thing. The plaintiff went to the public security organs to report the case, and upon review, it was found that it did not constitute a criminal offense, and the case was not filed.
The public security organ refused to file the case, and the plaintiff filed a civil lawsuit with the people's court to request the defendant to return the money, and the court of first instance ruled that because the other person had no legal basis and obtained improper benefits, the person who suffered losses had the right to request the return of the improper benefits. The court of second instance upheld the lawsuit, and the high court later rejected the plaintiff's lawsuit after a retrial.
V. Conclusions. The crime of solicitation fraud is a common form of contract crime, and its determination needs to be specifically analyzed in light of the circumstances of the specific case. When making a determination, attention shall be paid to factors such as the actor's subjective intent, objective conduct, the veracity of the relationship between the entrusted matters, and whether the property obtained is unlawful gains. When we encounter a case of entrustment, we should calmly analyze, fix the evidence in a timely manner, hire a lawyer to intervene as soon as possible, and organize the evidence to be reported to the public security organs, so as to achieve the result of minimizing losses and maximizing benefits.