Lawyer's character

“From the perspective of the constituent elements of the two crimes, the main differences between the crime of fraud and the crime of contract fraud are as follows:

First of all, the object violated by the crime of fraud is a single object, that is, public and private property ownership, which is located in Chapter 5 of property infringement crimes in the criminal law. The object of the crime of contract fraud is a complex object, which not only infringes upon public and private property ownership, but also infringes upon the country's contract management system and undermines the socialist market economic order. Therefore, it is listed in Chapter 3 of the Criminal Law as the crime of undermining the socialist economic order. Section 8 of the crime of disrupting market order.

Secondly, both the crime of fraud and the crime of contract fraud can be constituted by natural persons. However, according to the provisions of Article 231 of the Criminal Law, the subject of the crime of contract fraud can be constituted by an entity, while the subject of the crime of fraud can only be constituted by natural persons.

Finally, although the crime of fraud and contract fraud objectively use methods of fabricating facts and concealing the truth to deceive others into voluntarily handing over their property, the crime of contract fraud must be based on the use of contracts, that is, by signing and performing contracts. , defrauding others of their property; the crime of fraud does not limit the means of fraud, as long as the perpetrator uses deceptive means to defraud others of their property, it can be constituted.

It can be seen that the crime of contract fraud is a crime of using a contract to defraud. The fraud occurs during the signing and performance of the contract. The property illegally possessed by the actor is property related to the signing and performance of the contract. This is the difference between this crime. The main characteristics of the crime of fraud.

In this case, the defendant Geng Zhixuan signed consulting agreements with twelve victims and others in the name of Bright Future Company, promising to refund the money in full if he could not obtain a visa to go abroad.

The consulting agreement signed by Geng Zhixuan was ostensibly a consulting agreement, but in essence it was an agency contract for the processing of visas abroad.

This kind of agreement has certain agency service content and reflects the nature of certain market economic activities. Fraud crimes committed by using this kind of contract have seriously disrupted the normal market order for overseas visas. Therefore, it should be regarded as related to economic activities. contract.

Geng Zhixuan's fraud occurred during the signing and performance of the contract. The money obtained by fraud was the remuneration stipulated in the contract. Without obtaining a visa for the victim to go abroad, he absconded with the money, which can be deemed to have the purpose of illegal possession. Therefore, Geng Zhixuan’s fraudulent behavior should constitute the crime of contract fraud. "

In the courtroom, everyone in the auditorium listened to Fang Yi's speech quietly. In fact, they did not understand Fang Yi's legal vocabulary. Some people even started to yawn as they waited for the final verdict.

“2. The 1979 Criminal Law should not be applied to Geng Zhixuan’s fraud, but the 1997 Criminal Law should be applied.

Defendant Geng Zhixuan's fraud occurred in 1996. At the time of the incident, the 1997 Criminal Law had not yet been promulgated and implemented. Therefore, there is a question of whether the new law or the old law applies to Geng Zhixuan's fraud.

In this case, the defendant Geng Zhixuan, as the actual person in charge of Bright Future Company, used the contract to commit fraud in the name of the company, and the proceeds were used in the company, which should be considered a crime committed by the company.

According to the "Interpretations of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases", any unit that commits a fraud crime amounting to more than 200,000-300,000 yuan shall be investigated in accordance with the provisions of Article 152 of the 1979 Criminal Law. criminal liability of the responsible persons.

According to Article 152 of the 1979 Criminal Law, anyone who defrauds public or private property in a huge amount shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years. Geng Zhixuan committed a fraud of more than 300,000 yuan and should be sentenced to a fixed-term imprisonment of not less than five years but not more than ten years, as appropriate.

However, according to the provisions of Article 224 of the 1997 Criminal Law, whoever defrauds the other party of property, and the amount is huge or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined; if the amount is particularly huge or there are other serious circumstances, For other particularly serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have property confiscated.

The "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud" (effective from April 8, 2011): Fraud of public or private property worth 3,000 yuan to more than 10,000 yuan and 30,000 yuan If the amount exceeds 100,000 yuan or 500,000 yuan, it shall be deemed as "relatively large amount", "huge amount" and "especially huge amount" as stipulated in Article 266 of the Criminal Law respectively.

According to the provisions of the implementation details of the province's "Sentencing Guidance on Common Crimes", the statutory sentencing starting point and benchmark penalty is fixed-term imprisonment of between three years and less than ten years (1) Fraud of public and private property, the crime amount reaches the "huge amount" starting point seven Thousands of dollars. The statutory sentencing starting point and benchmark penalty is fixed-term imprisonment of more than ten years, (1) defrauding public or private property, and the crime amount reaches the threshold of "especially huge amount" of 500,000 yuan.

In this case, the defendant Geng Zhixuan defrauded the amount of 380,000 yuan, which was less than 500,000 yuan. According to the above regulations, the amount should be huge, and he should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

According to the provisions of Article 231 of the 1997 Criminal Law, the penalty standards for contract fraud, unit crimes and individual crimes are the same.

It can be seen that for defendant Geng Zhixuan’s behavior, the penalty prescribed by the 1997 Criminal Law is lighter than that of the 1979 Criminal Law. In accordance with the principle of retroactivity of the criminal law of both old and light, the 1997 Criminal Law should be applied to this case.

To sum up, the defender believes that the defendant in this case should be guilty of contract fraud, and the 1997 revised Criminal Law should be applied, but the 1979 Criminal Law cannot be applied. The original court's sentence was too harsh and the characterization of this case was inaccurate. The defender recommended that the court sentence the defendant to five years in prison. complete. "

"The prosecutor will now speak," the presiding judge said.

"Presiding Judge and Judge: We believe that...the original judgment found that the criminal facts of this case are clear, the evidence is reliable and sufficient, the conviction is accurate, and the sentence is appropriate. We recommend that the High Court reject the appeal and uphold the original judgment."

…

Outside the court, Geng Zhifan shook hands with Fang Yi and said: "Lawyer Fang, I keep my word. I will send you a reward of 50,000 yuan."

"Thank you, thank you, Mr. Geng." Fang Yi replied seriously.

Yes, the High Court changed the verdict.

After the trial, the High Court held that the defendant Geng Zhixuan signed contracts with others in the name of Bright Future Company in the name of applying for overseas visas for others, defrauded money and then fled abroad. His behavior constituted a crime.

The crime amount determined in the first-instance judgment was not only supported by documentary evidence such as receipts and agreements provided by the victim, but also was evidenced by the victim's testimony on record, which was sufficient for determination. (End of chapter)