Award-winning paper, "The Concept and Limitation of Financial Fraud Crime"-won the first prize of Shandong Lawyer's Excellent Paper.

Content Summary

The current criminal law separate the crime of financial fraud from the crime of fraud and set up the crime independently, which shows that the legislator agrees that the crime of financial fraud contains the characteristics that the general fraud does not have, and the understanding and grasp of this characteristic actually becomes the key to the accurate application of the crime of financial fraud. In the application of the crime of financial fraud, the modesty of the criminal law should be paid more attention to and reflected more comprehensively. Different types of fraud have different requirements for the degree of fraud. Compared with the general type of fraud, financial fraud should have higher requirements and standards in the degree of fraud. At the same time, the crime of financial fraud is also different from the crime of fraud in the determination and grasp of the purpose of illegal possession.

Key words:

The crime of financial fraud is limited to the degree of fraud for the purpose of illegal possession.

The regulation of fraud in China's current criminal law includes not only general types of fraud, but also financial fraud for special areas. From the legislative history, the 1979 Criminal Law only provides for the crime of fraud, for the above-mentioned financial fraud is not involved. Since then, with the continuous advancement of reform and opening up and the in-depth development of the market economy, my country's financial market has become increasingly active and the financial industry has flourished; at the same time, fraud crimes in the financial sector have also risen. Therefore, when China revised its criminal law in 1997, it provided for eight types of financial fraud, thus forming a legislative body that separates the crime of fraud as a crime against property from the crime of financial fraud as a crime against the order of the socialist market economy.

The crime of financial fraud originally belongs to the crime of fraud, and the relationship between the two is essentially a special law and ordinary law. Therefore, when people understand and apply the special type of financial fraud crime, they always unconsciously interpret the connotation of the crime of financial fraud with the thinking mode and interpretation path of the crime of fraud, but in the author's opinion, this understanding is more or less There are some deviations. The current criminal law separate the crime of financial fraud from the crime of fraud and set up the crime independently, which shows that the legislator agrees that the crime of financial fraud contains the characteristics that the general fraud does not have, and the understanding and grasp of this characteristic actually becomes the key to the accurate application of the crime of financial fraud. Therefore, it is necessary to explore the substantive basis of the establishment of the crime of financial fraud by legislators, grasp the value orientation of the financial field, and then reflect on the current research status of the crime of financial fraud in China, and accurately grasp the scope of application of this crime.

Exploring the Legislative Purpose of 1. Financial Fraud Crime

The reason why the crime of financial fraud can become an independent criminal group is not only that the applicable field of this crime has certain particularity, but also that it embodies the value care and purpose pursuit different from the crime of fraud. This makes the crime of financial fraud have the characteristics that the crime of fraud does not have, and this characteristic is precisely the fundamental reason why it can be regarded as an independent crime.

Analysis of Value Orientation in (I) Financial Field

In theory, it is generally believed that the crime of financial fraud is separated from the crime of fraud, both financial crime and property crime, the object of its infringement is a complex object, on the one hand, infringe on the financial management order, on the other hand, infringe on the ownership of public and private property. [[I]] however, this kind of traditional opinion actually considers the financial field in the 21st century with the thinking of the planned economy era, and grasps the dynamic financial circulation form with the concept of static property ownership. the result is bound to be totally different from what we want. Therefore, in order to accurately understand and grasp the legislative purpose of the crime of financial fraud, it is necessary to analyze the value orientation of the financial field from a more substantive level, which is the key to open the door to the crime of financial fraud. Although both the crime of fraud and the crime of financial fraud involve the protection of property rights and interests, in fact, the two crimes have different aspects of concern. Traditional property crimes mostly occur in the field of life, which pay more attention to static property security and build their own crime system based on ownership, so the degree of intervention in criminal law is higher. On the contrary, the crime of financial fraud occurs in the financial field, and the pursuit of efficiency in the financial field is far better than the consideration of safety. The coexistence of risks and opportunities is the characteristic of the financial industry, which determines that the financial field pays more attention to dynamic capital flow. As the saying goes, "wealth and wealth are sought in risk", the value goal of financial benefits limits the degree of intervention of criminal law, prevents penalties from exchanging loss of benefits for transaction security, while financial risks also inhibit the intensity of criminal law intervention, and must not completely stifle financial risks. [[ii]] this kind of value orientation is different from the general principle of comprehensive protection of property crimes. the emphasis on efficiency in the financial field determines that legislators have to adopt a certain restrictive posture when punishing the crime of financial fraud to prevent the excessive involvement of criminal law from hurting the rapid development of the financial field.

(II) the basis for the limitation of the crime of financial fraud.

Some commentators believe that, on the whole, the crime of financial fraud is actually a more serious crime than the crime of fraud. Whether it is examined from the perspective of infringement of legal interests or considered from the provisions of criminal law, this conclusion can be drawn. Thus, the criminal law does not provide for the crime of financial fraud to limit the scope of punishment for the crime of fraud. [[iii]] the author does not agree with this view. Although the amount of legal interest violations represents the severity of the act to a certain extent, in fact, the severity of the act is not necessarily related to whether it is punished or not. The application of penalties requires not only consideration of retribution factors, but also consideration of preventive effects. Especially when it comes to the limits of criminal law intervention in special areas, it should be a comprehensive weighing and then make a final judgment. The value orientation of the financial field is different from that of daily life, so as far as the positioning of the crime of financial fraud is concerned, the author tends to limit the wide application of the crime of fraud in the financial field. First of all, from a theoretical analysis, even if the crime of financial fraud is not stipulated in the Criminal Code, the crime of fraud in the financial field can still be punished by applying the crime of fraud, just as even if there is no crime of medical accident, which is a crime of negligence in a special field, its behavior can still be evaluated as "negligence causing death". The statutory sentence for the crime of medical accident is only fixed-term imprisonment of less than 3 years, and the crime of negligence causing death is fixed-term imprisonment of more than 3 years and less than 7 years. Therefore, the purpose of setting up special charges in specific fields is not to expand the application of general charges, but to limit the excessive spread of its scope of application, otherwise such "special provisions" will have no value and lose the need for existence. Secondly, from the point of view of the threshold of conviction, as far as the crime of fraud is concerned, according to the judicial interpretation, the 3000 of defrauding public and private property -10000 belongs to a large amount, while as far as the crime of financial fraud is concerned, the larger amount of fund-raising fraud is more than 100000, and the larger amount of credit card fraud is 5000-50000. The same amount is relatively large, but there is a wide disparity in the determination standard. It can be seen that compared with the crime of fraud, the threshold for the crime of financial fraud is higher and the requirement for conviction is stricter, which fully reflects the application of the crime of restricting fraud in the financial field. Finally, from the perspective of the direction of the amendment of the criminal law, the "Criminal Law Amendment (VIII)" and the "Criminal Law Amendment (IX)" completely abolished the death penalty for crimes in the financial field twice, and reduced the statutory maximum penalty for some financial crimes to life imprisonment. [[iv]] the death penalty for the crime of financial fraud has been criticized by scholars for a long time, and the legislator's amendment to reduce the penalty allocation for the crime of financial fraud can also be seen as proof of its application.

Analysis of the Degree of Fraud in 2. Financial Fraud

The financial field has its own value orientation, and the financial industry has its own goal pursuit, which makes the adjustment and regulation of the financial field have certain particularity. This particularity makes there is a big difference between the understanding and grasp of the crime of financial fraud and the crime of fraud, in other words, the modesty of criminal law in the application of the crime of financial fraud should be paid more attention to and more comprehensively reflected. Adhering to the concept of modesty and restraint of criminal law, we should have a substantive grasp of the crime of financial fraud, so as to exclude those financial fraud that do not need criminal law regulation from the criminal circle, which is not only a respect for the particularity of the financial field, but also a guarantee to ensure the good development of the financial industry. This limitation is first reflected in the restrictive requirements in terms of the degree of fraud. Specifically, the establishment of any crime of fraud requires a certain degree of fraud, otherwise the act is difficult to call fraud, but different types of fraud for the degree of fraud requirements are not the same, compared to the crime of fraud, financial fraud in the degree of fraud should have higher requirements and standards.

(I) market economies have a duty to tolerate a certain degree of fraud

From an ethical point of view, "fraud" is a normative judgment closely related to moral change, which gradually shrinks with the relaxation of morality. The despicable behavior of a primitive tribe as "fraud" may be a common necessity in modern society. From a social point of view, fraud is the lubricant of human interaction, no lies uncivilized, no cover-up no etiquette. [[v]] this historical change of fraud is mainly presented in the following two levels: firstly, from the vertical perspective, with the development of society and the passage of time, people's tolerance attitude towards fraud tends to ease gradually. "True lies" is hard to praise, "well-intentioned deception" is hard to say right or wrong, civilization is constantly dissolving fraud, and the public is constantly tolerant of fraud. "Fraud" is becoming commonplace in modern society. [[vi]] The development of human history shows that the single value system of early society has been unable to adapt to modern social life, and the simple judgment of right and wrong in primitive society has long been met but not sought in modern society with multiple values. The acquaintance society that once advocated honesty and credit has been impacted by the increasingly frequent population movement, which has intensified the sense of distance between each other, making people familiar with some fraudulent behaviors in social communication. Secondly, from the horizontal dimension, the tolerance of fraud in different areas is also increasingly divided. Economic activities are based on the pursuit of profits. The development of market economy is bound to be accompanied by a certain degree of intrigue. As the saying goes, there is no business without evil. It is undoubtedly unfair to measure fraud in the financial field by the standard of fraud degree in traditional thinking. In particular, the financial field itself has certain game attributes, and the degree of mastery of market information determines whether a market subject can be invincible in competition and game. At the same time, the market economy has its own operating mechanism, which can eliminate a certain degree of fraud, alleviate the impact of fraud on the financial order, and repair itself. Therefore, it has the obligation to tolerate a certain degree of fraud. This kind of tolerance obligation is inseparable from the nature of the financial field, which makes the life field and the financial field have different understanding of what is fraud, and then have different specific requirements and criteria for the degree of fraud between the crime of fraud and the crime of financial fraud.

(II) special subjects have a review obligation for a certain degree of fraud.

As far as financial activities are concerned, due to the daily and high frequency of investment and transactions, it is objectively impossible and unreasonable for criminal law to intervene in financial fraud crimes as frequently as fraud crimes in the field of life. The duty of attention of the market subject itself is far higher than that of ordinary people in the field of life, and its ability to pay attention is far more than that of ordinary people. [[vii]] most of the special subjects participating in financial activities are professionals, who possess relevant professional knowledge and know a certain degree of professional skills, and have certain risk prediction and measurement for their own economic behaviors, which requires the special subjects to abide by the obligation of examination. This kind of review obligation is not an unreasonable requirement imposed on a special subject, but an entry threshold for participants in a specific field. In other words, for those victims who disregard their own interests and have serious faults and cause property losses, they should bear their own faults. Part of the responsibility is not to shift all the responsibility to the party who committed the fraud. Special subjects involved in financial activities need to be clear that criminal law is neither the guardian of risk-taking investors nor the patron saint of reckless economists, and that they are not obliged to pay for their mistakes or to endorse their actions. The market economy itself is a elimination mechanism for the survival of the fittest. To some extent, financial activities are also a Colosseum of risk game. In the process of this market-oriented game, it is inevitable that some people will fall behind and add a number of new members at the same time. This is the inevitable law of the market economy and the operating rules of the financial industry. The use of criminal law to strictly control the financial industry is not so much to escort economic construction as to stifle and destroy economic vitality. Financial market risks and benefits coexist, and market participants have an obligation to assess the size of the risk and then make prudent investments. [[viii]] the examination obligation of special subjects makes the degree of fraud in the financial field more demanding. this degree of fraud requires professional judgment, rather than the general cognition of the general public. even the behavior that ordinary people think belongs to fraud may not reach a certain degree of fraud in the financial field.

(III) criminal law norms should remain modest to a certain degree of fraud.

The so-called modesty of criminal law means that the legislator should strive to effectively prevent and control crime with the minimum expenditure-less or even no penalty (and other penalty alternative measures), and obtain the maximum social benefits. Therefore, the modesty of criminal law has the function of limitation, which is the value connotation of criminal law in the modern society ruled by law. [[ix]] modesty requires caution and restraint in the application of criminal law. in terms of the adjustment of social relations, the degree of intervention of criminal law varies with different adjusted social relations. In the field of life, people pay special attention to interpersonal communication, and the trust relationship between each other is given important significance. Therefore, criminal law needs to be involved, more care and protection, so the degree of dependence on criminal law is higher. On the contrary, in the financial field, a certain degree of fraud can be said to be a business strategy, and this situation is not uncommon in real life. The use of a certain degree of exaggeration by merchants to publicize the situation of their goods is often seen in daily life, and this behavior cannot be said to be cheating as long as it is a trading habit and within the scope allowed by economic activity. [[x]] therefore, the norms of criminal law should not be excessively involved in the financial field. At the same time, compared with other legal norms that adjust social relations, criminal law is the last fortress on the front of legal norms, and it exists as a guarantee law. In the process of adjusting fraud in the financial field, it is necessary to give full play to the role of civil legal norms and administrative legal norms. The problems that can be properly handled through the pre-law do not need to be solved by criminal law. This is also the modesty of criminal law. The meaning of the question. Especially for our country, due to the late establishment of the market economy system, the development is not mature enough, so we need to give sufficient time to make it grow and perfect. For some irregularities in the financial field, or even beyond the legal boundaries, should not be prematurely in the name of criminal law protection to interfere with the strangulation of the reality. Therefore, to abide by the modesty of the criminal law, it is necessary to adhere to the issue of the degree of fraud in the field of life and the financial field of different identification, in other words, is to establish a difference between the crime of fraud and the crime of financial fraud to determine the degree of fraud standards.

The interpretation of the purpose of illegal possession of the crime of 3. financial fraud.

The purpose of illegal possession is a necessary constituent element for the establishment of fraud crimes, however, in the crime of fraud and financial fraud, whether the specific meaning of the purpose of illegal possession is the same, and whether the method of determination and the process of judgment can be consistent, this is a question worth studying. In the author's opinion, the previous research only focused on whether the crime of financial fraud needs the purpose of illegal possession and how to prove the purpose of illegal possession, but did not pay too much attention to the role of the element of illegal possession between the two types of crimes, ignoring the different contents of the purpose of illegal possession in different crimes. In fact, although the purpose of illegal possession in the crime of financial fraud is no different from the crime of fraud in terms of expression, if the value orientation of the financial field and the modesty of criminal law are taken into account, it will be found that under the same expression, the crime of financial fraud is different from the crime of fraud in the determination and grasp of the purpose of illegal possession.

The appearance of rights exists in financial fraud at the (I) factual level.

The existence of the purpose of illegal possession is an important dividing line between criminal fraud and civil fraud, but in fact, the crime of fraud and financial fraud are not exactly the same as the judgment and determination of the purpose of illegal possession. For the crime of financial fraud, because it engages in certain financial activities and has a certain appearance of rights, it is more stringent in the determination of the purpose of illegal possession. Taking the crime of loan fraud as an example, even if the perpetrator has committed some kind of fraud to obtain a certain loan from a financial institution, but then put it into production and operation, the effective loan contract gives the perpetrator the appearance of rights. In this case, the perpetrator possesses and There is a legal and effective right basis for the use of funds, how can it be said that the perpetrator has the purpose of illegal possession required by this crime. Some scholars in China have also pointed out that the subjective purpose of financial fraud and fraud is different. Especially in the perpetrator through fraud to obtain funds illegally, if the profit immediately after the return of funds, the perpetrator subjectively does not have the purpose of illegal possession is obvious. [[xi]] This is not the case for the crime of fraud. If the perpetrator obtains the other party's property by fraudulent means, he can be determined to have the purpose of illegal possession, and then he can be punished as the crime of fraud. Whether the perpetrator repays the money afterwards or not can not change the fact that the crime has been accomplished. It can be seen that the existence of the appearance of rights makes the crime of fraud and financial fraud in the determination and judgment of the purpose of illegal possession. For the crime of fraud, the purpose of illegal possession can be judged by the objective facts of the transfer of property, while for the crime of financial fraud, more facts are needed to determine the existence of the purpose of illegal possession.

The purpose of illegal possession at the (II) legal level is expressly limited.

The purpose of illegal possession of the crime of financial fraud is different from the crime of fraud not only in the existence of the appearance of rights, but also in the express provisions of the judiciary. In order to accurately grasp the application of the crime of financial fraud, the Supreme Court promulgated the Minutes of the National Court Symposium on the Trial of Financial Crime Cases (hereinafter referred to as the "Minutes") in 2001, which put forward higher requirements and set stricter standards for the determination of the purpose of illegal possession of the crime of financial fraud. According to the provisions of the "Minutes", if the perpetrator illegally obtains funds through fraud, resulting in a large amount of funds that cannot be returned, and has one of the following circumstances, it can be deemed to have the purpose of illegal possession. Through this expression, it is not difficult to find that the judiciary believes that the determination of the purpose of illegal possession in the crime of financial fraud needs to meet three conditions, that is, the implementation of fraud funds can not be returned to the specific circumstances of the requirements. In contrast, there are no many restrictions and additional conditions for the determination of the purpose of illegal possession of the crime of fraud, and the existence of the purpose of illegal possession of the perpetrator can be presumed according to the fact that the perpetrator objectively transfers the property. It follows that, although the same expression is for the purpose of illegal possession, the criteria for determining that purpose are not the same between the crime of fraud and the crime of financial fraud.

A correct understanding of the inevitability of financial crime is conducive to the formulation of reasonable and effective prevention and control strategies. [[xii]] as far as the crime of financial fraud is concerned, instead of holding the sword of criminal law to forcibly intervene in the financial field and financial industry in order to eliminate financial crimes, it is better to improve the financial supervision system and set up the market access mechanism to prevent it before it happens. Putting all the power in the post-event focus in order to regulate the financial market is actually putting the cart before the horse, and it also violates the value orientation of the financial field and the basic requirements of the modesty of criminal law. Therefore, it is necessary to adhere to the restrictive interpretation of the degree of fraud and the purpose of illegal possession in the application of the crime of financial fraud, as a buffer zone and isolation zone to limit the expansion of criminal law in the financial field.

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