Contract fraud issue
Objectively, this crime is manifested as the act of fabricating facts, concealing the truth, and defrauding the other party’s property in the process of signing and performing the contract, and the amount is relatively large. For the behavior of defrauding property by signing a contract, the key to determining whether the actor fabricates facts or conceals the truth is to find out whether the actor has the actual ability to perform the contract. That is to say, knowing that he has no actual ability or guarantee to perform the contract, the actor intentionally creates an illusion to make the person who signed the contract with him have an illusion, and “voluntarily” signs a contract with the deceiver, so as to achieve the purpose of defrauding money and property. This is the main objective feature of using the contract to commit fraud. Specifically, it includes the following:
- The actor has no actual ability to perform the contract. The determination of whether the actor has the actual ability to perform the contract shall be based on the actor’s credit or the clearing of goods at the time of signing the contract. For example, when signing a purchase and sales contract, the supplier has neither physical reserves nor sources of goods. It can be considered as having no actual capacity to perform the contract if it makes use of the mentality of some units eager to buy short supply or cheap goods, fabricates sources of goods, swindles trust, and accepts the advance payment or deposit of the contract, but fails to perform the contract within the time limit. Two situations should be distinguished: one is that although the actor has no actual capacity for performance when signing the contract, he has an offer or contract to purchase the same subject matter with another person before signing the contract. After signing the contract, if one party to the original contract breaches the contract, resulting in the latter contract being unable to be performed, it can be regarded as having a certain capacity for contract performance; The other is that the actor did not have the capacity to perform at all when signing the contract. He only signed a purchase and sales contract with a third party with the same content after signing the contract, but in fact it was not honoured. In this case, it can not be considered that the actor has the capacity to perform. If we don’t look at the actual performance capacity at the time of signing the contract, but only judge it according to the performance after signing the contract, it is easy for criminals to muddle through. Of course, we should also pay attention to the distinction between those who have no capacity to perform the contract at all and those who have partial capacity to perform the contract. Only those who have no capacity to perform the contract at all can be punished as fraud.
- To resort to deception. Deception means are mostly actions, and can not be simple inaction. Deception means that the actor fabricates facts or conceals the truth. Fictitious fact refers to the actor fabricating nonexistent facts to deceive the victim’s trust. Its manifestation is mainly as follows: impersonating the identity necessary for concluding a contract; Stealing, fraudulently obtaining, forging or altering the legal documents and documents necessary for signing the contract, and creating a false impression of legal identity and ability to perform the contract; Make up basic facts that do not exist; Fictitious non-existent contract object; wait. Concealing the truth means that the actor conceals the basic facts of objective existence from the victim, and its manifestation is mainly as follows: concealing the fact that it is actually impossible for him to perform the contract and concealing his criminal intention of not performing the contract; Concealing other facts that he is obliged to inform the other party in the contract.
- Make the person signing the contract have a wrong understanding. This kind of wrong understanding refers to the wrong understanding of the facts that can cause the disposal of property, rather than the wrong understanding of the deceived on all the facts of the case. In contract fraud, the deceived’s wrong understanding is caused by the Deceiver’s deception. In time order, deception comes first, which is the cause of the deceived’s wrong understanding. It is the result of deception that the deceived has a wrong understanding. If others have a wrong understanding first, and the actor takes advantage of others’ wrong understanding to obtain property, it can only be treated as a civil dispute rather than a crime of fraud. If the perpetrator has taken deceptive means, made mistakes in other people’s understanding, and disposed of property wrongly based on this wrong understanding, but there is no causal relationship between deceptive means and wrong understanding, he cannot be punished as a contract fraud crime.
- The deceived person voluntarily signs a contract with the actor and performs the contractual obligations, delivers property, or the actor (or a third party) directly illegally occupies the property delivered by others due to performance of the contract.
As a means of fraud, there are usually three types of economic contracts: (1) signing a sales contract to defraud cash or goods. There are five situations: first, signing contracts with others by using stolen, forged or fraudulently obtained blank contracts and letters of introduction; The second is to sign a contract with others by using an invalid or invalid contract or letter of introduction as a valid contract or letter of introduction; Third, sign a contract with others by using the name of the revoked unit and its seal, letter of introduction and contract; Fourth, fiddling with the terms of the contract makes it impossible to perform the contract on schedule; Fifth, set a trap on the subject matter, so that the other party breaches the contract and does not perform the contract. (2) Using the contract to defraud. The actor has no ability to contract, and contracts a factory or a certain project for the purpose of defrauding money, so as to defraud himself of a large amount of money or money. (3) Swindled money out of joint venture contracts. The actor has no production and operation capacity at all, and fraudulently obtains money from the joint venture by signing an joint venture contract with another person.