Property Disposition in the Crime of Fraud—A Case for the Doctrine of Unnecessity of Disposition Consciousness
Disposition of property currently constitutes the core element of the crime of fraud in China.Chinese traditional theories overly hinge upon the awareness aspect of disposi-tion,attempting an indiscriminate amalgamation of German and Japanese theories,thereby rai-sing concerns of misalignment and hybridity.The exclusive relationship between fraud and theft has significantly influenced the shaping of property disposition.Nevertheless,to guide the inter-pretation of property disposition by the exclusive relationship is in essence to guide the interpre-tation of the constituent elements of fraud by neighboring constituent elements of theft.In es-sence,fraud is not a self-injurious crime,but rather a crime of causing harm to others through the deception of the victim.Without the victim's property disposal,the danger inherent in the perpetrator's deceptive act cannot be realized.Consequently,the function of property disposal is not to identify the self-injurious nature of fraud or to differentiate between fraud and theft.Its sole normative function is to establish an attributional connection between property damage and deception that attributes property damage to the perpetrator's deceptive act.To establish this attributional linkage,property disposal must directly result in the transfer of property.There-fore,the element of directness is integral to property disposal,and the willingness or awareness of the deceived person regarding the disposal has no bearing on this aspect.In a sense,the most typical form of fraud occurs when the deceived person is duped without being aware of the fraud.In the context of the Chinese jurisdiction,property disposal should be defined as any act,tolerance,or inaction directly culminating in property transfer.The elements of voluntari-ness and consciousness of disposal are artificially introduced distinguishing factors to uphold ex-clusivity,a proposition deemed unacceptable.The subjective dimension of property disposal can be further subcategorized into the intention and the consciousness of disposal.The doctrine of unnecessity of disposition consciousness doesn't entirely disregard the subjective intent of the victim but necessitates the victim's recognition of the factual manifestation of property transfer.It is an inevitable deduction from the attribution structure of fraud that can address various is-sues related to misconceptions and is in line with the contemporary imperative of criminal policy to combat the proliferation of telecommunications and online fraud.According to this doctrine,fraud and theft may occur concurrently and this conclusion is consistent with the broader notion of robbery and extortion being in a competitive relationship.Undoubtedly,the relationship be-tween fraud and theft is a multifaceted issue.This paper merely scratches the surface,sugges-ting the possibility of the two crimes competing with each other by analyzing the functions and elements of property disposal.
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