The criminal presumption of "purpose of unlawful possession" in the crime of fraud
Pang Lianhua, member of the Party Leadership Group of the People's Procuratorate of Huaibin County, Henan Province, and deputy chief procurator general, a fourth-level senior prosecutor
Jin Huiyuan, assistant to the fifth-level prosecutor of the First Procuratorate Department of the People's Procuratorate of Huaibin County, Henan Province
Abstract: In judicial practice, the determination of "subjective purpose" has always been one of the difficulties and doubts in the identification of the purpose offender. At present, there is no unified standard for the determination of the "purpose of illegal possession" in the crime of fraud, and the method of proof of criminal presumption can be introduced to solve the problem of difficulty in determining the subjective purpose of the perpetrator in fraud cases, make up for the lack of identification methods in relevant cases in the mainland, and avoid the adverse consequences brought about by direct identification. When using the method of criminal presumption, it is necessary to adhere to the principle of consistency between subjectivity and objectivity, and to clarify the basic facts covered in the case and the steps for criminal presumption; procuratorial organs should also give full play to their legal supervision functions and supervise trial activities to ensure the reasonableness of the conclusions of criminal presumptions. Keywords: Fraud, Purpose of Illegal Possession, Criminal Presumption
full text
In the case of crimes of "illegal possession for the purpose" such as ordinary fraud, contract fraud, and fundraising fraud, the determination of whether the perpetrator has the purpose of illegal possession involves not only the distinction between one crime and another, but also the boundary between crime and non-crime. Neither in the judgment of the boundary between sin and non-sin, nor in the distinction between this sin and the other sins, cannot go beyond the judgment of the subjective aspect. In the process of judging the subjective purpose of the perpetrator, it is necessary to avoid objective attribution of responsibility based on the harmful consequences, nor subjective imputation of guilt based solely on the perpetrator's confession, but must be based on the objective facts and evidentiary materials of the case to determine whether the perpetrator has the "purpose of illegal possession".
I. The Basic Interpretation of "Purpose of Illegal Possession" in the Crime of Fraud and the Dilemma of Determination
Clarifying the meaning of "purpose of unlawful possession" is essential for the determination of the crime of fraud. We can separate the term "purpose of unlawful appropriation" in order to better understand what it means.
(1) The basic definition of "purpose of illegal possession" in the crime of fraud
What is "illegal"? Some scholars believe that "the 'illegality' in the purpose of illegal possession should be understood in light of the legal interests protected by the crime of property: as long as it is the legal interests protected by the crime of infringing on property, it can be found to be illegal, and then the purpose of the perpetrator's possession is found to be illegal." Therefore, in the crime of fraud, it is illegal for the perpetrator to obtain actual control of the owner's property without a legal basis and without the owner's permission, and it is not lawful for the actor to take possession of another person's property.
What is "possession"? At first, the meaning of "possession" in civil law and criminal law was the same, but with the development of sectoral law, its meaning was also different. In civil law, possession refers to the true control and control of something, while in criminal law, unlawful possession refers to the expectation of the perpetrator to bring the property under his control by committing a criminal act, and the perpetrator violates the property ownership relationship protected by the criminal law.
There are three main interpretations of the definition of "purpose of illegal possession" in criminal law academic circles. The first is the doctrine of excluding the consciousness of the right holder, that is, if the perpetrator has the intention to dispose of the property of others as his own, the subjective elements of the crime of fraud are met. The second theory is the theory of using the consciousness of disposition, which refers to the intention of using and disposing of the lawfully owned property of others in accordance with the economic usage of property. The third doctrine is the combined theory, which refers to the meaning that the actor excludes the right holder from taking possession of property, treats the property of others as his own, and uses or disposes of it in accordance with its economic usage.
In contrast, the mainland's interpretation of "purpose of unlawful possession" adopts the doctrine of consolidation. First of all, the "purpose of unlawful possession" should be excluded, and the perpetrator excludes the rights of the owner of the property in order to achieve his own purpose of taking possession of the property of others. At the same time, it should also have the meaning of using rather than destroying, which is manifested in the use of property according to the economic attributes of the goods, the use of the goods themselves, etc. To sum up, Professor Zhang Mingkai's definition of the meaning of "purpose of illegal possession" is relatively comprehensive, that is, the actor excludes the rights of the right holder, disposes of the property of others as his own property, and uses and disposes of the property in accordance with the original economic purpose of the property.
(2) The dilemma of determining the "purpose of illegal possession" of the crime of fraud
1. The basis for the designation is unclear. At present, there are no relevant legal provisions on the specific concept and external manifestations of "the purpose of illegal possession", and there is no unified standard for the determination of the "purpose of illegal possession" in judicial practice, and in many cases it is necessary to use objectively existing facts as the subjective element in determining the crime of fraud. In this case, the phenomenon of objective imputation of guilt is likely to occur when determining the "purpose of illegal possession", especially when it is impossible to obtain the perpetrator's confession, and the perpetrator's subsequent conduct is overly relied on to determine whether the perpetrator has the "purpose of illegal possession". In addition, in judicial practice, it is easy to be confused by evidence such as the actor's repayment promise, IOU, and bills for legitimate purposes, so as to determine that the actor does not have the "purpose of illegal possession".
2. It is difficult to distinguish between illegal possession and illegal occupation. The purpose of illegal possession in the above-mentioned crime of fraud requires the perpetrator to have both the intention of exclusion and the intention of exploitation. The purpose of illegal occupation refers to the perpetrator's temporary use or exploitation of the value of other people's property after obtaining it through fabricating facts or concealing the truth, but subjectively does not have the intention of illegal possession, and has the mentality of returning it within a certain period of time. It can be seen that the difference between illegal possession and unlawful possession lies in whether the perpetrator has the intention to exclude the possession of others and establish a new possession after obtaining the property of others. In judicial practice, there are a large number of cases of empty gloves and white wolves, where the perpetrator uses the property of others obtained by fraud for investment, resulting in the loss of other people's property, and the actor himself is unable to repay, at this time it is difficult to distinguish whether the actor is illegally in possession or illegally occupying other people's property, which affects the determination of the "purpose of illegal possession" in the crime of fraud.
II. The reasonableness of the criminal presumption of "the purpose of illegal possession" for the crime of fraud
(1) Make up for deficiencies in designation methods
Due to the lack of clarity on the basis and standards of the determination, in practice, there is a certain risk of wrongful conviction in determining the "purpose of illegal possession" of the crime of fraud, and the controversy is relatively large. From the perspective of judicial practice, criminal presumption is an indispensable means of proof to determine the existence of "illegal possession purpose" of the perpetrator.
Criminal presumption is a method of alternative proof for deriving unknown facts from known underlying facts. The circumstances stipulated in the judicial interpretation are not fully consistent with the facts related to the "purpose of illegal possession" that need to be determined in practice, especially the emergence of new fraud models, which has caused great obstacles for the judicial authorities to determine the facts of the case. For example, the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fundraising provides for the circumstances under which the purpose of illegal possession of the crime of fundraising fraud is determined, but it cannot cope with the current situation of "thousands of cases and thousands of faces" in judicial practice. Therefore, it is necessary to place the specific facts of the case in the laws and regulations, clarify the basic facts of the case and the facts to be proved, and use the rule of criminal presumption to determine whether the perpetrator has the purpose of "illegal possession".
(2) Eliminate the drawbacks of confession-centrism
In fraud cases, the perpetrator's confession is an important evidence for determining the "purpose of illegal possession", and judicial personnel are prone to magnify the role of the perpetrator's confession in determining guilt and innocence, taking the perpetrator's admission that he has the purpose of illegal possession as an important basis for imputing guilt, and falling into the trap of "confession-centrism".
On the one hand, the method of "determining directly on the basis of confessions" has seriously harmed the personal rights of the perpetrators, and under the pressure of closing the case, some judicial personnel may use the method of "coercing confessions" to obtain the confessions of the perpetrators, which has seriously affected the degree of trust of the public in the judicial organs; on the other hand, in order to evade the crackdown of the judicial organs, some perpetrators refuse to confess their criminal purposes, and in the absence of other evidence to indirectly prove that the perpetrator's fraudulent acts have been established, the handling of the case has reached a deadlock. For example, in Wang's fraud case, Wang was a businessman who sold building materials, and in a chat with Zhang, Wang informed Zhang that he was the owner of a certain company and had borrowed 70,000 yuan from Zhang on the grounds that he was in urgent need of money. Later, Wang fabricated false chat records to deal with Zhang's demand for payment. In the process of reviewing and prosecuting, Wang always denied that he had the purpose of illegally occupying Zhang's property, saying that he was only temporarily unable to repay the loan due to poor capital turnover. Because Wang did not clearly state that the series of acts he made in the face of Zhang's request for arrears were for the purpose of "deception", the determination of Zhang's subjective purpose at this time could not meet the standard required for imputation. Later, because Wang used the "loan" for anchor rewards and daily expenses, and did not use 70,000 yuan for business capital turnover, it was inferred that Wang had the "purpose of illegal possession" based on Wang's after-the-fact behavior, which constituted the crime of fraud.
It can be seen from this that in the case of fraud dealing with similar situations, in the absence of the actor's confession of subjective purpose, it is necessary to screen it with the help of external characteristics, comprehensively analyze the objective behavior presented by the actor and all the facts involved in the case, and adopt the method of criminal presumption to determine whether the actor has the purpose of "illegal possession".
III. Key Points for Adopting the Criminal Presumption Method to Determine the "Purpose of Unlawful Possession".
(1) Adhere to the principle of consistency between subjectivity and objectivity
Human activity is the externalization and objectification of man's subjective thoughts, and reflects man's thoughts, that is, man's free will or man's subjective purpose. Accordingly, the subjective state of mind of the actor can be manifested in the objective acts he committed, and the subjective purpose can be determined according to his specific acts.
To determine the "purpose of illegal possession", the principle of consistency between subjectivity and objectivity must be adhered to. In the crime of fraud, when pursuing the criminal responsibility of a criminal suspect or defendant, it is necessary to fully consider the subjective intent of the perpetrator, the harmful consequences caused, and other circumstances, and use a comprehensive perspective to evaluate the subjective malice of the perpetrator and blame the perpetrator's deceptive conduct.
Since the "purpose of illegal possession" belongs to the level of human subjective consciousness and is abstract, volatile, and difficult to judge, it is basically advocated in theory that it should be determined through the objective external performance of the actor. According to the requirements of the principle of consistency between subjectivity and objectivity, the determination of the "purpose of illegal possession" can neither simply and objectively imput, nor can it exaggerate the role of the actor's oral confession, but must adhere to the subjective judgment on an objective basis, that is, on the premise of ascertaining objective facts, the subjective purpose of the actor is presumed according to certain empirical rules or logical rules.
(2) Clarify the underlying facts on which the presumption is based
The use of the criminal presumption rule to determine whether the perpetrator has the purpose of illegal possession shall ensure that the underlying facts on which it is based are objective and truthful. Only when the underlying facts are objective and true can it be possible to obtain presumed facts that can be used. The "purpose of illegal possession" in the crime of presumption fraud is mainly based on basic facts such as the perpetrator's deception method and the perpetrator's conduct after the fact.
1. There are various methods of deception by the perpetrator, but in general, the deception methods adopted by the perpetrator are fabricating facts, concealing the truth, causing the other party to have a wrong understanding from scratch, or using the other party's existing misunderstanding to achieve the purpose of illegal possession, and the degree of deception is sufficient to make ordinary people believe it. For example, in judicial practice, perpetrators often use "legitimate" reasons such as medical treatment for family members, payment of cash withdrawal fees, and payment of social security on behalf of others, as well as bait such as bonuses and high interest rates, to deceive the victim's trust, and based on this "trust", the victim transfers the property in his possession to the other party for possession. The crime of fraud is a consequence crime, and the fraud that caused the result is one of the basic facts, which is very important for determining whether the perpetrator has the purpose of illegal possession.
2. The actor's subsequent conduct should also be used as the basic fact for determining the actor's subjective purpose, and the following three aspects may be inferred from the actor's conduct after committing fraud: First, the actor's arbitrariness in disposing of the borrowed property of others is manifested in the squandering of others' property at a low price, free of charge, or other means. Second, after acquiring the property of others, the perpetrator quickly conceals the property or transfers the property to others for possession in order to offset his own debts. Third, after acquiring the victim's property, the perpetrator has conduct such as changing the place of residence or placing the victim's contact information on the blacklist, so that the victim cannot contact him/her, and it may be presumed that the perpetrator has the purpose of illegal possession.
Although the above analysis of the basic facts commonly used in the application of the criminal presumption rule, it is not possible to exhaust all the circumstances in a fraud case, and in the process of handling a fraud case, the undertaker should comprehensively consider all the evidence and circumstances of the case to determine whether the perpetrator has the purpose of illegal possession.
(3) Clarify the steps for criminal presumption
On the basis of ensuring that the basic facts on which the criminal presumption is based are objective and true, we can follow the following steps to make the presumption: First, sort out the evidence in the case, focusing on summarizing the indirect evidence that is conducive to proving that the perpetrator has the purpose of illegal possession, to ensure the formation of a complete chain of evidence, and to derive the basic facts that need to be used for the presumption. The second is to combine judicial practice and case-handling experience to derive presumptive facts based on the basic facts, that is, the perpetrator has the purpose of illegal possession, focusing on whether the actor made a false promise beforehand, the actor's deceptive methods during the matter, and the actor's disposition of property after the fact, to comprehensively determine that the actor has the purpose of illegal possession. The third is to allow the perpetrator to rebut the presumed facts. In view of the limited level of evidence presented by the perpetrator, the requirements for the standard of rebuttal should not be too high, and there is no need to require that the actor's rebuttal can eliminate reasonable doubt, and when the actor refutes his own subjective purpose, the judicial personnel should bear the burden of proof to eliminate the doubts in the case. On the one hand, if the criminal suspect or defendant argues that he has no purpose of illegal possession and submits in detail the whereabouts of the property, the undertaker shall conduct a substantive review of the rebuttal raised by the perpetrator. If it is verified to be true, it cannot be determined that the perpetrator had the purpose of illegal possession; On the other hand, the undertaker should make a judgment on the actor's rebuttal, and if the actor's rebuttal is inconsistent and obviously untrue, and it is obviously impossible to overturn the presumption conclusion, the undertaker does not need to refute the actor's untrue rebuttal, and can still determine that the actor has the purpose of illegal possession in accordance with the complete chain of evidence that has been formed.
(4) Give full play to the functions of legal supervision
1. The initiation of the criminal presumption method must have strict restrictive conditions, and can only be applied on the premise that the basic facts are fully proved by circumstantial evidence, and the "presumption of guilt" cannot be made out of thin air speculation. When determining whether the perpetrator had the purpose of illegal possession, the procuratorate, as the entity bearing the burden of proof, must not arbitrarily make presumptions, and must form a rigorous evidence system in strict accordance with a specific logical order, ensuring that the basic facts are fully proven, and must avoid the mentality of using subjective inferences to infer subjectivity, otherwise criminal presumptions will become subjective judgments.
2. Procuratorates, as organs of legal supervision, should strengthen oversight of trial activities. In the course of trial, if it is discovered that adjudicators lack a lawful basis in determining the subjective purpose of the perpetrator in using the rules of criminal presumption, or that the defendant's right to refute is not fully protected, the procuratorate should initiate procedures for supervising violations of criminal trial activities and send a written notice to correct the violations, and if the court has already made a judgment or ruling, when necessary, may initiate a prosecutorial counter-appeal procedure to supervise the trial activities of the people's courts, so as to truly protect the lawful rights and interests of the defendants.
*This article was published in the March 2024 issue of China Prosecutor Magazine (Judicial Practice Edition)