On October 11, 2024, King&Capital Law Firm Criminal Department “Criminal Defense Semi-Monthly Talk” the 14th activity was successfully held, the theme of this issue is “contract fraud defense points of discussion”. Activity by King&Capital Law Firm Zhang Deshan lawyer, Liu Lijie lawyer, Wang Zhiqiang lawyer as a guest to participate in the conversation.
This activity focuses on the key points of defense of contract fraud, on the basis of clarifying the basic constituent elements of contract fraud, combining with specific cases, analyzing the controversial issues of contract fraud, and on this basis, sorting out the defense rules and skills from the perspective of innocence and misdemeanor.
Mr. Zhang Deshan believes that contract fraud has certain specificity and it is very important to clarify the contract fraud crime. Firstly, according to the provisions of the law and the legislative intent, he distinguishes between contract fraud and fraud from the three aspects of criminal subject, criminal means and criminal object.
Secondly, from the nature of the contract and the contract form of the contract fraud “contract” interpretation and analysis. Contract fraud in the “contract” should reflect a certain market order, reflecting the transfer of property or trading relations, is to bring property benefits to the perpetrator of the contract. With the market order has nothing to do with the contract as well as the main market adjustment, such as does not have the nature of the transaction gift contract, marriage, adoption, custody, guardianship and other identity relationship agreement, does not disturb the order of the market economic activities, should not normally be regarded as a contract fraud “contract”. Simple private lending contracts, personal finance contracts generally do not constitute contract fraud.
Again, on the contract fraud in the determination of the most controversial issue that how to determine the “illegal possession of the purpose” of this key element, Zhang Deshan lawyers believe that the determination of contract fraud, the key is to determine whether the perpetrator has the purpose of illegal possession.
Zhang Deshan lawyer said, the illegal possession of the purpose of the determination, can take the “three look” elements of the review method, that is, a look at the ability to perform, two look at the performance behavior, three look at the attitude. The defendant lacks the ability to perform, also has no actual performance behavior, and no performance of default liability, should be recognized as having the subjective purpose of illegal occupation of other people's property. Finally, based on Article 20 of the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Handling of Cases of Economic Crimes by Public Security Organs (2017), and in conjunction with a case of selling agricultural products on credit at a high price handled by himself, Attorney Zhang shared the difficulties and solutions for the defense of a contract fraud case.
Lawyer Wang Zhiqiang shared ten key points for lawyers to defend against contract fraud from the perspective of misdemeanor out of crime. Lawyer Wang Zhiqiang said, in the perspective of the elements out of the crime, can be from the amount of money involved in the case, the contract involved in the case and underpinning provisions of the three aspects of the facts can not be identified as contract fraud; in the perspective of the violation of the law layer out of the crime, can be from the perspective of distinguishing between civil deception, analysis of the perpetrator's ability to fulfill the act, the existence of fraudulent liquidated damages and the amount of the crime to strive for the client's innocence; in the perspective of subjective responsibility layer out of the crime Perspective, due to the “illegal possession purpose” determination, is the most controversial issue in the determination of contract fraud, the defender should pay attention to argue whether the perpetrator is the existence of unlawful possession purpose and unlawful possession purpose of the time. Finally, Mr. Wang said that the illegal possession purpose cannot arise after the perpetrator obtains the other party's property, and the criminal intent of contract fraud should not exist “after the fact”.
Mr. Liu Lijie believes that contract fraud is a common and very controversial crime, and he shared his thoughts on the defense of contract fraud from three dimensions: crime and non-crime, crime and crime, and the definition of the victim of contract fraud. First of all, Liu Lijie lawyer proposed that the demarcation with civil fraud and how to determine the purpose of illegal possession is the core issue of determining the establishment or otherwise of contract fraud. On the contract fraud and civil fraud how to distinguish, not only involves the criminal structure, also involves the main contract and guarantee the effectiveness of the contract, the interests of outsiders, such as criminal and civil intersection, in the academic community is more controversial, there is no conclusion, lawyers can play a role in the space is relatively large.
Secondly, in this crime and other crimes, to focus on contract fraud and fraud is a special and general relationship, in the defense, from the determination of the amount of the crime and whether the establishment of the unit crime two perspectives to consider for the parties to strive for a better defense effect.
Finally, Liu Lijie lawyer especially emphasized that, although the contract fraud four words in the word is easy to understand, but actually contains a complex legal relationship. Contract fraud usually involves intricate, intertwined criminal facts and civil legal relationships, lawyers in the defense process should master the relevant legal knowledge, clarify the complex legal relationships. Liu lawyers through visual charts, shared a bank involved in a “vendor silver” model of a contract fraud case, vividly illustrates the determination of the contractual counterparty and the criminal victim of the determination of the contract fraud and the bank to recover the results of the important impact of the loss.
Training site atmosphere, applause, the lawyers in the collision of ideas to share their own practice in dealing with the crime of contract fraud a lot of constructive comments.
