1. What is the crime of telecom fraud?
The crime of telecom fraud refers to the act of defrauding a large amount of public and private property by fictional facts or concealing the truth for the purpose of illegal possession. Deception is the essential feature of this crime. The crime of fraudulently obtaining export tax refund refers to the act that a unit or individual fraudulently obtains export tax refund from a tax authority or an export enterprise without paying taxes by fraudulent means, such as falsely issuing special invoices for value-added tax, fraudulently obtaining export declaration forms for goods, colluding inside and outside to provide export receipt documents, and illegally organizing false export tax refund vouchers.
Therefore, defrauding export tax rebates is essentially a fraud. In recent years, there are more and more means of fraud, and the targets of fraud are also increasing, such as letter of credit fraud, financial bill fraud, insurance fraud, contract fraud, defrauding export tax rebates, etc. In order to effectively punish these crimes, this Law separately stipulates charges and statutory penalties. According to the principle that special provisions are superior to ordinary rules, anyone who meets the constitutive requirements of the crime of defrauding export tax rebates will be convicted and punished directly for defrauding export tax rebates, and will not be convicted and punished for general fraud.
It is generally believed that the basic structure of this crime is: the actor commits fraud for the purpose of illegal ownership → the victim has a wrong understanding → the victim disposes of the property based on the wrong understanding → the actor obtains the property → the victim suffers the loss of the property.
Second, the composition of the crime of telecom fraud
1, object elements. The object of this crime is the ownership of public and private property. It is limited to the property of the state, the collective or the individual, not to defraud other illegal interests. Its target should also exclude loans from financial institutions. Because the criminal law has specifically stipulated the crime of loan fraud in article 193.
2. objective elements. Objectively, this crime is manifested in the use of fraudulent methods to defraud a large amount of public and private property.
First of all, the perpetrator committed fraud. Formally speaking, fraud includes two types, one is to fabricate facts, and the other is to conceal the truth, both of which are essentially acts that make the victim fall into a wrong understanding.
Secondly, fraud makes the other party have a wrong understanding. The wrong understanding of the other party is caused by the fraud of the actor. Even if the other party has some mistakes in judgment, it does not prevent the establishment of fraud.
Thirdly, the establishment of the crime of fraud requires the victim to make property disposal after falling into a wrong understanding.
Finally, after the victim disposes of the property by fraud, the actor obtains the property, thus damaging the victim's property. According to Article 266 of the Criminal Law, it is a crime to defraud a large amount of public or private property.
3. Main elements. The subject of this crime is a general subject, and any natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.
4. Subjective elements. Subjectively, this crime is direct and intentional, and it has the purpose of illegally occupying public and private property.
Relevant laws and regulations:
Criminal law
Article 266 Whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.
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