Lawyer

"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 of the crime of fraud is a single object, that is, public and private property ownership, which is included in Chapter 5 crimes against property in the criminal law.The object of the crime of contract fraud is a complex object, which not only violates the ownership of public and private property, but also violates the country's contract management system and destroys the order of the socialist market economy, so it is listed in Chapter 3 of the criminal law. Section [-] is among the crimes of disrupting market order.

Secondly, both the crime of fraud and the crime of contract fraud can be composed of natural persons, but according to the provisions of Article 231 of the Criminal Law, the subject of the crime of contract fraud can be composed of units, while the subject of the crime of fraud can only be composed of natural persons.

Finally, although both the crime of fraud and the crime of contract fraud objectively use the method of fabricating facts and concealing the truth to make others be deceived and voluntarily hand over their property, the crime of contract fraud must use the contract, that is, sign and perform the contract as a means. , to defraud 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 defrauding by using a contract. The fraudulent behavior occurs during the signing and performance of the contract. The property illegally occupied by the perpetrator is the property related to the signing and performance of the contract. The main features of the crime of fraud.

In this case, the defendant Geng Zhixuan signed consulting agreements with [-] victims and others in the name of Bright Future Company, promising to refund the full amount of the money if the visa for going abroad cannot be obtained.

The consultancy agreement signed by Geng Zhixuan was on the surface a consulting agreement, but in essence it was an entrusted agency contract in the nature of visa application for overseas travel.

This kind of agreement has a certain content of agency services and reflects a certain nature of market economic activities. The crime of fraud committed by using this kind of contract has seriously disrupted the normal market order of agency visas for going abroad, so it should be identified as related to economic activities. contract.

Geng Zhixuan’s fraud took place during the signing and performance of the contract, and the money he defrauded was exactly the object of remuneration agreed in the contract. If he absconded with the money without obtaining a visa for the victim to go abroad, it can be determined that he had the purpose of illegal possession. Therefore, Geng Zhixuan's fraudulent behavior should constitute the crime of contract fraud. "

In the trial court, everyone in the auditorium quietly listened to Fang Yi's speech. In fact, they didn't understand Fang Yi's legal vocabulary, and some of them even started to yawn. They were waiting for the final verdict.

"Second, the 1979 Criminal Law should not be applied to Geng Zhixuan's fraud, but the 1997 Criminal Law.

Defendant Geng Zhixuan's fraudulent behavior occurred in 1997, and the Criminal Law of [-] had not yet been promulgated and implemented at the time of the case. Therefore, there is a question of whether the new law or the old law should be applied to Geng Zhixuan's fraudulent behavior.

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 unit, and the stolen money obtained was used by the unit, which should be regarded as a unit crime.

According to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases", if the amount of fraud committed by a unit is more than 20 to 30 yuan, the relevant responsible personnel shall be investigated for criminal punishment in accordance with the provisions of Article 1979 of the Criminal Law of 152. responsibility.

According to Article 1979 of the Criminal Law of 152, whoever defrauds a huge amount of public or private property shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.Geng Zhixuan defrauded more than 30 yuan and should be sentenced within five to ten years of fixed-term imprisonment as appropriate.

However, according to Article 1997 of the 224 "Criminal Law", whoever defrauds the other party of property, if the amount is huge or if 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; , to fixed-term imprisonment of not less than ten years or life imprisonment, and concurrently to a fine or confiscation of property.

《最高人民法院、最高人民检察院关于办理诈骗刑事案件具体应用法律若干问题的解释》（2011年4月8日起施行）的规定：诈骗公私财物价值3000元至1万元以上和3万元至10万元以上、50万元以上的，应当分别认定为刑法266条规定的“数额较大”与“数额巨大”、“数额特别巨大”。

According to the implementation rules of the province's "Guiding Opinions on Sentencing of Common Crimes", the sentencing starting point and benchmark penalty for statutory penalties ranging from three years to ten years of fixed-term imprisonment (1) defrauding public and private property, and the amount of crimes reaching the threshold of "huge amount"7 ten thousand yuan.The sentencing starting point and benchmark penalty of fixed-term imprisonment of more than ten years in the statutory penalty range, (1) defrauding public and private property, and the amount of the crime reaches the starting point of "a particularly huge amount" of 50 yuan.

In this case, the defendant Geng Zhixuan defrauded the amount of 38 yuan, which was less than 50 yuan. According to the above regulations, the amount should be huge and 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 1997 of the Criminal Law of 231, for the crime of contract fraud, the penalty standard for unit crime and individual crime is the same.

It can be seen that, for the defendant Geng Zhixuan's behavior, the 1997 Criminal Law stipulated a lighter punishment than the 1979 Criminal Law. According to the retrospective principle of the old and lighter criminal law, the 1997 Criminal Law should be applied to this case.

To sum up, the defender believes that the defendant in this case should constitute the crime of contract fraud, and the 1997 revised Criminal Law should be applied instead of the 1979 Criminal Law.The defender suggested that the court sentence the defendant to five years in prison.complete. "

"Now it's up to the prosecutor to speak," said the presiding judge.

"The presiding judge and judges: We believe that...the original judgment found that the criminal facts of this case were clear, the evidence was reliable and sufficient, the conviction was accurate, and the sentence was 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 mean what I say. I will send you a reward of 5 yuan."

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

Yes, the High Court reversed the sentence.

After the trial, the High Court held that the defendant, Geng Zhixuan, signed contracts with others in the name of Bright Future Company under the pretext of going through visa procedures for others, defrauded them of money and then fled abroad, which constituted a crime.

In addition to documentary evidence such as payment receipts and agreements provided by the victim, the amount of the crime determined in the first-instance judgment also has the evidence of the victim’s testimony on record, which is sufficient for determination. (end of this chapter)