Actually, xie Liuqing proposal is early be informed from small gain, true argue net ever successive print sends 9 comments, launched the analysis of make a careful and detailed analysis and review from the different question of this case respectively. Tell the truth, to criminal case, before seeing records data, make known his position at will (or you say " stand in line " it may not be a bad idea) , probable meeting has the risk of the face that be hit. But after the author read each square to expect in detail, include but not extract of the apologetic opinion of lawyer of be confined to, relevant press, indictment, it is at least in initial impression of the author, this criminal case not " simple " . And no matter a lot of problem of treat of of the place in chapter of dispatch of print of place of true argue net, the author still feels core of this record issue still depends on a fact maintaining, it is bilk after all, civil still and con? Farther, the calamity of bagnio; Remove one condition, hai Yanhe is clear.
So, bilk and civil and con divisional, it is a difficult problem in criminal judicatory, be undeniable!
Media coverage
And just is inopportune is, the author before this ever had been dealt with one case " health care tastes bilk " case, in case conduction process, discovery also exists in this kinds of case bilk and civil and con bound cent problem. And even follow-up case is dealt with terminative hind, the author is written technically still language is right this kind of case undertook study, formed a paper. So, take dear case to withering, the author not stand in line, expose with respect to the place in this case only those who go out " bilk and civil and con bound cent problem " , talk about oneself shallow view.
The author is in gotten information to see from authoritative medium, in Xie Liuqing case, public prosecution mechanism accuses: Since 2012, the person such as Xie Liuqing is executive bilk activity, the company such as house of art of the Jin Guocang in Tibet of standard of the gold in registering Henan early or late, Beijing, Oriental national treasure, hind in order to collect company name, use " word art " value of dummy company name, product, appreciate the information such as the space, market the product such as false calligraphy and painting, china, imperial jade seal to the client, experience record amount adds up to seventeen million eight hundred and ninety-nine thousand yuan.
Can see, with crime of fraud the core keyword of link up with has the possibility: "Word art " dummy information (include value of company name, product, appreciate the space) , the product such as false calligraphy and painting, china, imperial jade seal. This one act, the case that in studying with the author health care tastes bilk case, comes up against is extremely similar.
Tell the truth, in judicatory solid Wu, want existence word art only, a lot of handle a case mechanism will be quite excited, feel to want to have word method only even, sales compaign is abnormal. Sincere know, in promoting a gender to sell, word art is text of a kind of when the clerk maintains oneness to export carry out demonstrative sex, having the method that do not have a word is not judgement sales compaign is lawful element. Core key depends on, of swindler blame form important document to have without reach, basically should achieve place of crime of fraud to ask around fraudulent action " beguiling behavior " , the objective that whether has detinue will maintain.
The first, "The product such as calligraphy and painting, china, imperial jade seal " false, it is one of crucial facts. Undertake according to this case the information that lawyer and media leak, mechanism of this case public prosecution was approbated on the court so called " the product such as calligraphy and painting, china, imperial jade seal " it is true. Since be true, that is nonexistent false problem, so nonexistent also aforementioned sells the criminality of false product.
The 2nd, "The product such as calligraphy and painting, china, imperial jade seal " for true, whether do its have what what when its are sold external, weigh to comparative value, be crucial fact. Indeed, the thing is meaning scarcely really is bilk, see this product whether have the value that comparative even, that is to say costly. If be to take value the thing of 10 money, pretend to be value the thing of 100 thousand money, although the thing of 10 money is true, but also cannot so sell. Because of value of 10 money " true " archaize teacup, cannot become 100 thousand antique teacup.
The 3rd, dummy company name or identity, this is con, is that bilk? Tell the truth, in case of bilk of a lot of criminal, put in the behavior of identity of dummy main body mostly, is then dummy identity the dummy fact in swindler blame? Not so simple! Be just like, I am a lawyer to collecting utterly ignorant, I say to you now, I am a collector, a when want to get on the hand true Tibet is tasted sell with you, I cheated the identity to you, but my purpose is taste the true Tibet in the hand sell piece, and the Tibet that did not sell you the holiday is tasted, I am bilk, not be apparently. So, identity of dummy main body, if be based on to my identity mistake punish belongings to just be not, and the value presence of property of punish of relatively square place is reasonable to valence, that is not bilk, is the identity a holiday might as well?
The 4th, exaggerated when the sale value, appreciate the information such as the space, whether to belong to bilk certainly? For instance I am taking a market price to be 5000 thing, although,say this thing with you now value 5000, but because of author name memory of big, travel measures little, charge for the making of sth. masterly wait for a reason, its are the following appreciate the space will be very large, we prepare to sell 10 thousand now, you want to be not bought, I give actually later bought. That logic according to mechanism of the public prosecution in Xie Liuqing case, I am to be cheated, was then I cheated?
Feel embarrassed, I was not cheated! If salesperson place says appreciate space, have certain fundamental fact, although this foundation fact is not,belong to completely solid, the salesperson is price of appetent drive up, but the judgement that I still am based on myself will buy this product, that although exaggerated or what the fact that you say puts in certain level is false, but I take this product really, and the company delivers to my this product actually, the company still has medium of communication of smooth goods of exchange a purchase, this kind of exaggerated allegation, did not change a salesperson to me the intent of real sale product, I put those who go up very hard in criminal meaning to be cheated.
The 5th, behavior of not all deceit belongs to bilk. Bilk and civil and con how should distinguish after all? This, the author very Judge Yu Weihua is opposite tall courtyard of province of praise highly Zhejiang a lot of viewpoint in studying related crime of fraud. Anxiety judge puts forward, the expressional form that cheats behavior should distinguish core deceit behavior and auxiliary deceit behavior, carried out core to cheat behavior to just establish bilk only. Pure have false statement with respect to legal regulation, valuation or express cannot diddle other belongings, do not establish core to cheat behavior.
Core cheats behavior, ought to be the false token behavior that is content with property of requirement other consign. Specific have three-layer meaning: (1) look from idea, core deceit behavior ought to be a kind of token behavior. Behavior person is in have apparently establish with other, the change, intent that ends civil law relationship, convey to other leasehold, use, the meaning such as buying and selling, investment. (2) from look essentially, this kind of token behavior is the beguiling action that hypocrisy of empty of a kind of expression considers. Behavior person did not fulfill the intent of civil obligation actually, its are true the purpose is diddle other belongings. (3) this kind of token behavior is content with property of requirement other consign. Behavior person passes property of requirement other consign, in order to achieve the goal of diddle other property. The beguiling behavior that does not accord with afore-mentioned conditions cannot diddle other property, do not establish core to cheat behavior. (refer to Judge Yu Weihua " the beguiling behavior in mentioning crime of fraud " one article)
On meaning of criminal law bilk " beguiling behavior " go up with civil category " fraudulent action " where is bounds? How should both distinguish again? The author feels the following to distinguished with respect to enough at 2 o'clock: One of, "Beguiling behavior " medium dummy fact, should fact of attributive and decision-making sex, and rather than assists sexual fact (or brim sex fact) . Fact of so called decision-making sex, it is to point to let a fool be immersed in directly or maintain wrong understanding, have the core fact of decision-making action to punish belongings behavior. The 2nd, "Beguiling behavior " should not have the subjective pursuit that produces civil law impact, without the dominance purpose that assumes civil obligation. Namely place of Judge Yu Weihua says, it is to cheat essentially, is not to establish civil law relationship.
So, below the premise that has detinue objective, have core, without auxiliary, can maintain bilk; Without core, have auxiliary, can't maintain bilk.
Of course, in Wu of bilk case conduction fact, also have handle a case mechanism proves existence to cheat behavior to come to an end only, as to " the purpose of detinue " with respect to assume sth as a matter of course think, having beguiling action is for " kite " , that was had " the purpose of detinue " . Apparent this is sluggish performance. In Xie Liuqing case, also exist " the purpose of detinue " with " seek profits purpose " divisive issue, to this the article does not spread out discuss.
