"From the perspective of the constitutive 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 infringement of the crime of fraud is a single object, that is, the ownership of public and private property, which is located in Chapter V of the Criminal Law in the category of crimes against property. However, the object of infringement of the crime of contract fraud is a complex object, which not only infringes on the ownership of public and private property, but also infringes on the state's contract management system and undermines the order of the socialist market economy, so it is ranked in Section 8 of the Crime of Undermining the Socialist Economic Order in Chapter 3 of the Criminal Law.

Second, both the crime of fraud and the crime of contract fraud can be constituted by natural persons, but according to article 231 of the Criminal Law, the subject of the crime of contract fraud may be constituted by a unit, while the subject of the crime of fraud can only be composed of a natural person.

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 property, the crime of contract fraud must be the use of contracts, that is, the signing and performance of contracts 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 property, it can be constituted.

It can be seen from this that the crime of contract fraud is a crime of using a contract to commit fraud, and the fraud occurs in the process of signing and performing the contract, and the property illegally possessed by the perpetrator is the property related to the signing and performance of the contract, which is the main feature that distinguishes this crime from the crime of fraud.

In this case, the defendant Geng Zhixuan, in the name of Bright Future, signed consulting agreements with the 12 victims and others, promising to return the money in full if he could not obtain a visa to go abroad.

The consulting agreement signed by Geng Zhixuan is ostensibly a consulting agreement, but in essence, it is a principal-agent contract in the nature of an agency for overseas visas.

This kind of agreement has a certain content of agency services and embodies a certain nature of market economic activities, and the crime of fraud carried out by using this kind of contract has seriously disrupted the normal market order of applying for visas abroad, so it should be recognized as a contract related to economic activities.

Geng Zhixuan's fraudulent conduct occurred in the process of signing and performing the contract, and the money obtained by fraud was the subject of the remuneration agreed in the contract, and he absconded with the money without obtaining a visa for the victim to go abroad, which can be determined to have the purpose of illegal possession, so Geng Zhixuan's fraudulent conduct should constitute the crime of contract fraud. ”

In the courtroom, everyone in the auditorium listened quietly to Fang Yi's speech, in fact, they didn't understand Fang Yi's legal professional vocabulary, and some people even began to yawn, waiting for the final verdict.

"2. The 1979 Penal Code shall not be applied to Geng Zhixuan's fraud, but to the 1997 Penal Code.

Defendant Geng Zhixuan's fraud occurred in 1996, and the 1997 Criminal Law had not yet been promulgated and implemented at the time of the incident, so there was a question of whether the new law or the old law should be applied to Geng Zhixuan's fraud.

In this case, the defendant Geng Zhixuan, as the actual person in charge of the company, used the contract to commit fraud in the name of the unit, and the stolen money was used for the unit, which should be a crime committed by the unit.

According to the provisions of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases", where a unit commits a crime of fraud with an amount of 20-300,000 yuan or more, the relevant responsible persons shall be investigated for criminal responsibility in accordance with the provisions of Article 152 of the Criminal Law of 1979.

According to article 152 of the Criminal Law of 1979, a person who defrauds a large 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. The amount of Geng Zhixuan's fraud is more than 300,000 yuan, and he should be sentenced within the range of fixed-term imprisonment of not less than five years but not more than ten years.

However, according to the provisions of Article 224 of the Criminal Law of 1997, whoever defrauds the other party of property, and the amount is huge or 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; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property.

The "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud" (effective April 8, 2011) provides: Where public or private property is defrauded with a value of 3,000 to 10,000 RMB, 30,000 to 100,000 RMB, or 500,000 RMB, it shall be respectively found to be "a relatively large amount", "a huge amount", or "an especially huge amount" as provided for in article 266 of the Criminal Law.

On the basis of the provisions of the detailed rules for the implementation of this province's "Sentencing Guiding Opinions on Common Crimes", the starting sentence and base sentence for the statutory sentence of between 3 and 10 years imprisonment (1) Fraud of public or private property, and the amount of the crime reaches the starting point of 70,000 yuan for "huge amounts". The starting sentence and base sentence for legally-prescribed sentences within the range of 10 years or more imprisonment, (1) defrauding public or private property, and the amount of the crime reaches the starting point of 500,000 RMB for 'especially huge amounts'.

In this case, the defendant Geng Zhixuan defrauded 380,000 yuan, less than 500,000 yuan, which should be a huge amount according to the above provisions, and should be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

According to article 231 of the Criminal Law of 1997, the punishment standards for the crime of contract fraud, crimes committed by units and crimes committed by individuals are the same.

It can be seen from this that the punishment provided for in the 1997 Criminal Law is lighter than that of the 1979 Criminal Law, and in accordance with the principle of retroactivity of the Criminal Law 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 Criminal Law as amended in 1997 should be applied, but the Criminal Law of 1979 cannot be applied, and the original trial court's sentence was too heavy and the characterization of this case was inaccurate. The defender recommended that the court sentence the defendant to five years in prison. Complete. ”

"It is now up to the Prosecutor to speak." The presiding judge said.

"Presiding Judge and Judge: We think ,...... The original judgment found that the facts of the crime in this case were clear, the evidence was credible and sufficient, the conviction was accurate, and the sentence was appropriate, and recommended that the High Court reject the appeal and uphold the original judgment. ”

……

Outside the courtroom, Geng Zhifan shook hands with Fang Yi and said, "Lawyer Fang, my words count, and I will send you a reward of 50,000 yuan." ”

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

Yes, the High Court reversed the verdict.

After the trial, the High Court held that the defendant Geng Zhixuan had signed a contract with others in the name of Bright Future Company in the name of applying for visas for others to go abroad, and had absconded abroad after defrauding them of money, and his conduct had constituted a crime.

In addition to documentary evidence such as receipts and agreements provided by the victims, there is also evidence in the case of the victim's testimony that the amount of the crime determined in the first-instance judgment is sufficient for determination. (End of chapter)