One, the basic facts of the case

Chen, male, 26 years old, no industry, from 2006 8 to October, Chen has collaborated with Huang, Yuan Mou in Nantong Hengchang car rental company, Tongzhou Beishan car rental company of much home company to lease the car 14, Chen and others of these 14 cars a mortgage, or in the car change, has to Xu a 6 mortgage loan 210000 yuan, to the time of the incident, there are 5 cars failed to catch the regression also, 210000 yuan loan by Chen et al for gambling and has squandered. In November 30, 2006, Chen was arrested on suspicion of the crime of contract fraud.

Two, differences of opinion

Chen et al in car rental car rental company name, in accordance with the requirements of the "certificate of deposit" and provides the related conditions, in signing the "rental contract", to defraud leasing company car or the illegal disposal, realizable acts constitute a crime of contract fraud has no objection, but how to determine the amount of fraud, there are three different opinions on trial:

The first view, Chen is the loan fraud, fraud amount is 210000 yuan. The reason is: see from the surface, Chen is a borrower, and collateral, but in essence, Chen as the mortgage is not Chen himself, unauthorized mortgage, the loan after the launch out, unable to return, have never thought to return, in fact no return, Chen borrowing behavior is a legitimate form of cover up illegal purpose, its hide to return, do not want to return to the fact, reached the purpose of obtaining money, so it should be identified all of the mortgage loan for the amount of fraud.

The second view, Chen fraud amount should be 14 cars all value. The reason is: Chen for the purpose of illegal possession, concealing the true purpose for car rental, rental car mortgage loan, which in this case is the car value Chen fraud amount rather than borrowing. And Chen fraud amount should be for 14 cars, all because, since Chen fraud is the car, so the 14 cars are deliberately under the same name, take the same trick too, the 14 cars are the proceeds of crime booty, has returned 9 cars is active ultimately, the discretion of leniency, but should be included in the total crime amount.

The third view, Chen and other fraud is part of the automobile, fraud amount shall be the remaining 5 car, the value of 351150 yuan. The reason is: Chen although out of 14 cars, but after all, has returned 9 vehicles, from the behavior perspective, Chen on the 9 cars and no intentional illegal possession, which shall be deemed not to return the 5 vehicles valued at RMB 351150 for the amount of the proceeds of crime.

Three, analysis

The author tends to agree with the third opinion, the reason is:

1, loan amount cannot be identified as the reason for. Chen rental to pledge way to dispose of the vehicle, from the perspective of civil considerations, the pledge is over the property to each other in the transfer of ownership of the situation, as a kind of creditor's rights guaranteed, not a sale. But in this case, Chen no actual ability to perform, the vehicle pledge has become an actual sale income, money to splurge, he is the illegal possession of criminal sense of purpose. As the loan creditor, in the pledge period, he can dispose of the property and to obtain compensation, so the loan can not be identified as the reasons and basis for the amount, and should be based on a car discount amount as determined the amount of the crime.

2, Chen fraud is the car. From the objective elements, fraud must be facts or conceal the truth, Chen loan is not fictional facts do not conceal the truth, if Chen began to conceal the fact to return, do not want to return the loan can be established, it will be unable to explain the fact that Chen loan is a mortgage objects, and the value of the mortgaged property is far higher than the loan amount, it is because of the existence of collateral, loan classification to the fraud are difficult to convince people, although the mortgage law does not protect, from a legal perspective is invalid, but this does not deny the existence of collateral acts, as the sale of stolen goods is not protected by law, but it could not deny the existence of trading behavior. So in this case from either subjective or objective behavior, Chen fraud should be the car rather than borrowing.

3, Chen fraud amount should be 5 cars did not recover the value. Chen on the property possession intent crime is directly intentionally or indirect intention is as an important basis for the case of crime amount, typically, fraud crime intention is direct intention, but in some cases, fraud crime can be composed by indirect intention, such as in the case of a car share Chen to others is held laissez faire attitude, also can also, can't also is not also, also not against their will, not not against their will, so the 9 car to chase the regression also cannot be identified as the amount of crime. But should not recover 5 car value of RMB 351150 yuan as the amount of crime.

Four, treatment results