Before, many friends leave a message inside small letter fair number inquiry: Somebody lent money to me, but that person is not returned not only finally, if still saying to want money to did not drive sb. to his death. Excuse me, can accuse bilk of the other side, let him be imprisoned?
Above all, our understanding is the following these content:
What is bilk?
Bilk, it is to point to it is a purpose with detinue, perhaps conceal the method of the truth with dummy fact, the behavior of the state-private property with diddle money larger specified number.
What circumstance constitutes crime of fraud?
Basis " criminal law " the 192nd regulation with the 193rd: It is a purpose with detinue, bilk is state-private property number is larger, constitute crime of fraud.
It is the purpose is regulation of our country criminal law to encroach one of property ownership crime very main feature with detinue. Criminal law schoolbook is to the illuminate of detinue purpose, "Behavior person intent changes the ownership of state-private belongings illegally. "Behavior person intent changes the ownership of state-private belongings illegally..
The bounds of crime of fraud and leasehold behavior:
Borrower because some kind of reason, default what do not return for a long time, fictional perhaps crammer or hide the fact and diddle money other people, expire cannot repay, the purpose of short of detinue, also do not have prodigal one sky, good Zhang, no longer practise fraud deceives people, plan to repay really, still belong to leasehold dispute, do not constitute crime of fraud.
Punishment:
" criminal law " the 266th regulation: Bilk is state-private property, number is larger, handle battle of 3 years of the following set term of imprisonments, arrest or control, be in or amount of; of only punishment gold is huge perhaps have other and serious plot, be in 3 years of above 10 years the following set term of imprisonment, punish golden; amount particularly tremendous perhaps have other and special serious plot, be in set term of imprisonment of 10 years of above or life imprisonment, punish gold to perhaps confiscate property. This law has a regulation additionally, according to regulation.
Announced on December 16, 1996 according to top people court " about hearing bilk case specific application law the explanation of a certain number of problems " (the following abbreviation " explanation " ) and print and distribute announced on January 21, 2001 " finance of countrywide court cognizance commits a crime, the author thinks these cognizance element can be used completely at what commit a crime to common bilk to examine judgement, specific ought to examine the following ingredients:
One, whether does the use that investigates behavior person loan have illegal sex.
Behavior person the illegal sex to loan utility is judgement behavior person is subjective go up the important basis that has objective of detinue other property. To regular civil borrow or lend money, behavior person is met commonly use money at proper use, and meet explain actively when loan, make borrower believes in order to achieve and be willing loan. And the travel humanness of swindler blame basically uses borrow or lend money at illegal purpose, if peddle,manage poison, illegally, gamble and congenial behavior, trying the there's no one who doesn't or isn't in practice to be like is. Accordingly, " explanation " , " summary " all decided two kinds of respective case respectively, namely " prodigal collect money paragraph " , " use collect money the paragraph undertakes illegal guilty activity " and cause collect money the paragraph cannot be returned return, " capital of wanton and prodigal diddle " , " the capital of use diddle undertakes illegal guilty activity " . Commit a crime to the common bilk that carries out with loan means, can adopt completely also afore-mentioned investigate judgement method similarly. Of course, also have what after person of little part behavior is being used at be not law intent, remand on time, but in trying practice, see more at getting illegal profit or sudden huge profits, have accidental factor, but want after the event to remand only, cannot maintain behavior person to have the objective of detinue of course. From judicatory practice is pleasant to the eye, any bilk crime cases all are remand with be being done not have finally relevant money and case hair. The loan use that says here, ought to be the main use of loan, namely all or major flow direction of money. And do not include behavior person to use a few borrow or lend money at illegal use wait likely.
2, examined behavior person to whether implement bilk measure when loan.
The illegal sex of the method is certain behavior person the important basis of subjective purpose. In the case of all crime of fraud of cognizance, behavior person is subjective the show that attending objectively to all do not have one exception is the detinue purpose that go up carried out the dummy fact, bilk action that hides the fact method, and one of bilk methods that use appearance to inspect property of lawful other of loan method diddle to just go to be carried out for the person in recent years, also be for one of measures that attack at will escaping criminal henceforth, the case that property of this kind of pure other of loan means diddle takes in judicatory practice is relatively scarce, the travel humanness of major case is to adopt the method that a loan means and other bilk action implement jointly, achieve the goal of diddle other property thereby, right now loan behavior can be to be bilk behavior provide cover for only, perhaps say the one share that is whole bilk behavior. Be like crime of fraud of Xiaohua of Zou of the accused person, Zou Xiaojun one case, the handicraft such as ox of the cupreous sheep that this 2 people will be modelled on first, copper is deposited in home of the injured party, pretend this is very costly " antique " , make the injured party believes, buy a piece in order to need money subsequently costlier " Gu Hua " seek borrow or lend money of the injured party for the name 80 thousand yuan, at the same time promise is in 10 days in reimbursement 100 thousand yuan, and with Id, deposit " antique " and promise will buy " Gu Hua " give the injured party is on mortage, to cheat the credit that gets the injured party further, invite the injured party to be headed for together again buy " Gu Hua " , the injured party lent 2 the accused the person 80 thousand yuan, person of 2 the accused issued receipt for a loan, the place that agree beforehand next with the injured party is bought from inside partner hand " Gu Hua " give the injured party is custodial, raise money goes out to escape for the name beyond person of 2 the accused subsequently, did not contact with the injured party again, and 80 thousand yuan prodigal. In this case, the accused person the action that issues receipt for a loan is one of bilk measures that implement for gold of the injured party of further gain sth by cheating only apparently, this " loan " behavior is the bilk behavior that is a name with loan essentially, still carried out the dummy fact, other bilk action that hides the fact during this, if pretend the handicraft that be modelled on to be very costly antique, act with partner " a two-man act " play is bought " Gu Hua " etc, its purpose has only, it is the gold of diddle the injured party. If think the accused person has id card, have issued receipt for a loan and handle this case as civil loan dispute, cannot make the bilk criminality of the accused person is punished duely apparently. Those who need a specification is, the loan in the bilk behavior in the crime of fraud that forms with loan means and civilian loan dispute did not return behavior, include the beguiling part with have certain, but the move since the detinue purpose that the fraudulent action of crime of fraud does not return to the loan of behavior person is decisive, the action of essential sex: because have the bilk action of beforehand, behavior talent thinks to have " enough " reason thinks not to grant to remand, the detinue purpose that because have,also granting to remand, ability can take all sorts of bilk steps, each other is cause and effect detinue purpose and this kind of bilk between the method. And the loan in average civil loan issue was not returned, because do not have the subjective objective of detinue loan, behavior person is to should pass normal loan behavior to come true oneself just when interest, behavior person is in although loan around took certain beguiling step, if exaggerate,oneself sincere letter is spent, remand ability, but behavior of this kind of deceit is right the returns finally to still do not have essence influence of loan, between the medium that crime of fraud does not have between the cannot remand result that perhaps says behavior of this kind of deceit and happening of after the event and result causal, attribute the crazy action of sincere letter defect after loan.
3, examine behavior person to have without reimbursement ability.
If go to know perfectly well oneself to do not have reimbursement ability for the person, also do not have any belongings and proper profession, seek person borrow or lend money in order to cheat a method in great quantities however, although all be issued when loan,have receipt for a loan, we still can judge behavior person to have the subjective objective of detinue other property, because go not to have reimbursement capacity for the person, this receipt for a loan already cannot cash, the loss that the injured party causes because of loan can be assumed by oneself only, so the consciousness of risk marry again of behavior person is very apparent. Before the reimbursement ability that says here includes loan, mix after loan, generally speaking, judgement has without reimbursement ability, we cannot only simple checkup is in for the person all right the actual condition when loan how. If go not to have reimbursement capacity before loan for the person, but use money at normal production to manage after loan activity and have proper investment, have fixed, reliable income source, so its have reimbursement capacity is clearly. Some travel humanness have reimbursement capacity before loan, but reimbursement ability is brought about to lose because of objective reason after loan, because its are subjective,go up not to have the detinue objective that does not remand, cannot conviction with crime of fraud punishment. But if go to because objective reason is brought about,be in for the person,not be to adopt remedy measure actively to remand in order to come true as early as possible loan, take the chance to escape however, avoid meeting to creditor, show the negative attitude that does not wish to assume responsibility, of behavior person this kind " take the chance to bilk Zhang " the manner is completely OK and illative its are subjective went up to had produced detinue purpose. The generation time problem of the detinue purpose of person of the behavior in swindler blame alluding incidentally here. crime of most bilk, before its detinue purpose produces Yu Fei law to control other property, but case of some bilk crime, behavior person is the detinue purpose that just arises after controlling other property legally, adopt the dummy fact, deceit method that hides the fact next, make the injured party is based on a mistake know and " freewill " those who abandon pair of property call in, accordingly, no matter why be planted,the bilk of property commits a crime, the detinue purpose of behavior person can arise already at controlling other property before, also can arise at controlling other property later.
4, examine behavior person to cannot remand the reason of loan.
No matter be the swindler blame that is a purpose with detinue other property or civilian loan dispute, because behavior person did not remand,its are as a result eventually most loan and hold water. But average civil loan issue, because behavior person is subjective,go up not to have detinue intended, the result that loan cannot remand can be only by objective reason be caused by, wait like force majeure, management deficit, and in swindler blame cannot remand loan, be by the subjective reason be caused by of the bilk other property of behavior person, go namely the detinue purpose of humanness and cannot remand the result is had causal, because the purpose of detinue brings about the result that cannot remand to have two kinds of state,this is planted, it is to be able to be returned return and refus is not returned still, if carry a paragraph to escape, avoid meeting to lender, be like in front; of case of bilk of mentioned Zou Xiaohua, Zou Xiaojun or conceal belongings, move capital. These refus of behavior person do not return the expression that returns borrow or lend money, can maintain its completely subjective the detinue purpose that go up. 2 because behavior person uses borrow or lend money at spending extravagantly,be, if illegal crime activity is gamble, illegal manage, traffic drugs to wait, because go,humanness cannot remand to what the after spend extravagantly or be being used at violating guilty activity likelihood of money brings about money this one result is known perfectly well, have between both causal, person of OK and illative behavior has detinue objective.
5, examine behavior person to have the real action that does not have reimbursement.
Since have " loan " behavior ought to have of course " reimbursement " behavior, the reimbursement behavior here includes exactly the amount to remand the real action of loan, all sorts of step that after also including to give out in loan, take for reimbursement are mixed hard. If " borrow " not " still " , do not be the leasehold relation on civil code meaning into its. To average civil loan, because borrower gives priority to the objective that detinue borrow or lend money does not have on view, although because objective reason is brought about,cannot be returned,return, also meet active, active adopt all sorts of remedying measure, remand in order to achieve the purpose; of loan and the behavior person that carries out swindler blame with loan method is for detinue loan after loan, although have reimbursement capacity, also won't have reimbursement action, won't be reimbursement more and take all sorts of methods and step, its foregoing loan behavior ought to be maintained be is method of a kind of bilk. Some travel humanness in real life may be in of creditor chase after countervail to fall with a few reimbursement behavior has reimbursement sincerity with making creditor believes his, cheat creditor to abandon chasing after countervail next. This kind a few reimbursement behavior is not sincerity remand loan behavior, the bilk intrigue that continues to carry out however. Accordingly, we cannot think simply to want behavior to the person has reimbursement capacity and did not remand only loan attributes civil loan dispute.
6, examine behavior person to be in cannot remand the manner after loan.
Behavior person the reimbursement manner to loan hind, whether can have the important basis of detinue purpose as its. Because,be in oneself reason or because objective reason is brought about,cannot remand when loan, not be to take the loss that significant step is made up for and reduces loan actively, show however inactive, irresponsible manner, perhaps borrow machine abscond, or although do not have abscond, but place from beginning to end " want money to do not have, have confoundedly " blackguardly photograph, this kind of bilks Zhang manner of behavior person, completely OK and illative its have detinue objective.
Anyhow, the detinue purpose of swindler blame is the subjective psychology activity of behavior person, this kind subjective the psychological activity that go up beyond the affidavit besides behavior person, impossibly other evidence confirms, but the affidavit of behavior person relapses easily, stability is poor, the explicit travel that can fasten through connecting with subjective psychology activity only tries to conclude for the general viewpoint of value of integrated society the objective that whether its have detinue.
