Discussion on the Common Dispute Focus of Marriage and Love-related Fraud

Author | Mu Qing Lawyer Team, Mu Qing, ***

Editing and Reviewing | ***

Introduction

In love and marriage, it is often a normal behavior for both parties to transfer money and borrow money to each other based on maintaining their emotional relationship. However, if one party conceals that they are married, creates a "gorgeous" appearance for themselves, establishes a romantic relationship, and then asks the other party for property under various excuses, it is often a departure from the original intention of love and marriage to meet emotional needs.

In judicial practice, there are differences between whether such behavior is a violation of social morality or suspected of fraud. In practice, the author has also handled similar cases. There are criminal court verdicts that constitute the crime of fraud, but there are also public security organs that do not file a case, and deal with it through civil litigation in accordance with private lending disputes.

By analyzing the judicial and legal precedents in different regions, this paper sorts out and analyzes the common controversial focuses of marriage and love fraud.

Common controversial focuses of marriage and love fraud

Due to the crime of marriage and love fraud, the two parties live together, and there are close and large amounts of money exchanges. It is often reflected in the borrowing of one party's investment behavior or the transfer of special amounts (such as 520 yuan, 1314 yuan, etc.) due to the intimate relationship between the two parties or the consumption generated by the two parties for common life.

The above-mentioned money transactions are whether they are regarded as normal life behaviors in the process of marriage and love, or whether they are determined to be fraudulent acts intentionally committed due to the general crime of the perpetrator, and even if the perpetrator is determined to constitute the crime of fraud, which sum of money should be determined as the amount of fraud is often a difficult point in judicial practice.

Here, the author sorts out the above issues by studying the court's effective judgment.

01 The appearance of "private lending disputes" such as the actor issuing an IOU or the other party filing a civil lawsuit does not affect the establishment of the crime of fraud

Actors often issue IOUs to the other party, sign loan agreements or verbally agree to borrow money before and after acquiring the property. In the legal relationship of private lending, both parties only need to reach an agreement on important matters such as the amount of the loan, interest, and repayment time to determine that the two parties have established a private lending contract.

However, in cases involving marriage and love fraud, the actor's issuance of IOU or the two parties to resolve disputes through civil litigation are usually identified as the actor's means of fraud, not as a private lending relationship, and the actor constitutes fraud. In the (2022) Shanghai 0114 Criminal Court verdict No. 364, after the defendant borrowed money from the victim, he issued an IOU and the victim claimed the creditor's rights by filing a civil lawsuit. The two parties reached mediation, but in the end the defendant's behavior was still determined to constitute the crime of fraud.

In this case, the core of distinguishing whether the actor constitutes fraud or is only a breach of contract in private lending lies in examining whether the actor has the purpose of illegally occupying the other party's property. At this time, the court will determine the behavior of the actor. If the perpetrator makes up or conceals the true marital status, work experience, and income, establishes a marriage relationship with one or more of the victims, then makes up the purpose of the loan, and then obtains a large amount of property from the victims, and uses the loan to repay debts or personal consumption, it is usually determined that the perpetrator has the purpose of illegally occupying the other party's property from the beginning, and the other party is willing to borrow from the perpetrator only because of the wrong understanding of the "emotional relationship", the perpetrator constitutes the crime of fraud.

Therefore, even if the perpetrator issues an IOU and actually repays part of the loan or the victim eventually files a civil lawsuit to demand repayment of the "loan", because the perpetrator already meets the requirements of the crime of fraud, the "loan" behavior will be identified as a means of fraud, and the fraud crime of "borrowing by name, but actually cheating" or "borrowing more but not less" will still be established.

In the (2022) Shanghai 0114 Criminal Court verdict No. 364, the court held that the defendant had established a love relationship with each victim during the marriage relationship, defrauded the victim's trust through false marriage promises, and in the absence of actual repayment ability, fabricated business and other reasons, so that the victims fell into the understanding of wrong payment of money and goods, the proceeds were mainly used to repay debts and personal consumption, etc., when the victim urged money, but also by writing a certificate of guarantee, IOU to delay, its behavior should be identified as fraud.

The victim's request for money through a civil lawsuit before the incident does not affect the nature of the fraud.

02 The victim also made up his identity at the same time, and the act of concealing the marriage relationship cannot prevent the perpetrator from constituting fraud

In marriage-type fraud cases, the behavior of the perpetrator's fictitious single, highly educated, and high income to develop a romantic relationship with the other party is often the key factor for the court to determine that the perpetrator constitutes a fraud. The court believes that the other party's mistaken understanding of the perpetrator's marital status and income situation leads to a romantic relationship with him, and the property is paid based on the trust relationship between the lovers.

But in practice, there are also situations where both parties conceal the real marriage relationship and make up their "gorgeous" identities. At this time, the property paid by the other party obviously has the characteristics of actively paying for the good will of the perpetrator. On this basis, whether the other party's act of paying property is a "victim commitment", and prevents the perpetrator from establishing a crime.

First of all, the victim commitment refers to the victim voluntarily give up some legal interests. In the crime of fraud, to constitute the victim's commitment, the victim needs to voluntarily give up his possession of property. However, it is generally believed that one of the key factors that constitute the victim's commitment is the victim's commitment based on his true will.

In a marriage-type fraud case where both parties conceal the facts, even if the victim has a fictitious identity or a fictitious single person, the perpetrator also continuously responds or takes the initiative to make false emotional representations that will develop and maintain a relationship with the victim on the basis of fictitious identity and marital status, and in the process fabricates reasons and constantly demands property.

Therefore, the court will hold that the victim paid the property based on the wrong understanding that "the other party also wants to develop a romantic relationship with him." At this time, the victim's promise is not true and cannot prevent the perpetrator from being convicted of fraud.

In the (2020) Jin 0322 Xingchu No. 78 criminal court verdict, the victim made up his identity, falsely claiming to be the daughter of a certain mayor and a graduate student of a certain university. The victim knew that the defendant asked him for property, and he took the initiative to pay for the so-called love relationship. However, the court held that the defendant defrauded the victim's trust in the name of love, and then used the purpose of illegal possession to make up facts and defraud the victim of money, which was enough to determine that the defendant subjectively had the purpose of illegal possession and objectively carried out fraud, which met the constituent elements of the crime of fraud.

03 Transfers of specific amounts such as "520" due to maintaining a romantic relationship are generally not regarded as gifts and are included in the amount of fraud

For the reason of maintaining the marriage and love relationship, the victim will take the initiative to transfer money to the perpetrator in a specific amount, such as 520 yuan, 1314 yuan, etc. Whether such a special amount should be recognized as a fraudulent amount is controversial in judicial practice. Generally, the court holds that the perpetrator uses a false identity to establish a romantic relationship with the victim, and in order to gain the victim's trust, asks for property in various names, which constitutes fraud. The victim's transfer based on the perpetrator's fraudulent behavior should be included in the fraudulent amount, without distinction based on the actual use of the defendant.

However, there are also a few courts that believe that the amount of special significance does not determine the amount of fraud because it has the meaning of maintaining a romantic relationship. For example, in the criminal court verdict No. 814 (2018) Liao 0103 Xingchu, the court held that the victim transferred 1314 yuan and 521 yuan to the defendant five times successively. These figures have specific meanings and are transferred based on the intimate relationship between the two parties, which should be deducted from the amount of fraud.

04 The amount of fraud is generally based on the victimDetermination of the amount of actual loss

On the basis of determining that the perpetrator constitutes the crime of fraud, the determination of the amount of fraud is an important factor affecting the sentencing. Due to the "love relationship" between the two parties, the payment exchanges between the two parties lasted for a long time and were frequent. The reasons were complex, and there were many factors affecting the determination of the amount of fraud. The influencing factors generally included the return of part of the money by the perpetrator before the crime, and the victim used part of the expenditure for the living expenses of both parties.

In such cases, the court generally determines the amount actually lost by the victim, that is, the total amount paid by the victim to the perpetrator. If the perpetrator has returned some of the money before the crime, the court will generally deduct the returned money from the fraud amount.

However, whether the expenditure used by the victim for the living expenses of both parties should be regarded as the amount of fraud is controversial. Most courts held that the victim trusted the perpetrator and lived together due to the wrong understanding of the "emotional relationship between the two parties", so the common living expenses should not be deducted from the fraudulent amount.

As in the (2021) Ji 02 Criminal Court verdict No. 6, the court held that the defendant, without the ability to repay, made up his family and work background, falsified the illusion of having an economic basis, so that the victim had a wrong understanding of his ability to repay and the use of the loan, the money paid by the victim should be included in the amount of fraud, whether the reason for the loan is consistent with the actual use, and what use the fraudulent property is used for, does not affect the nature of his illegal possession of the property, and the relevant amount should not be deducted from the amount of the crime.

On the contrary, a small number of courts held that when the victim made expenditures for common living consumption, he himself did not cause his own losses due to joint use, and should deduct this part of the amount from the fraud amount. In the (2020) Guangdong 1391 Xingchu No. 474 criminal court verdict, the court held that the amount was joint consumption expenditure, and the amount was not included in the fraud amount.

05 The amount obtained by the perpetrator for real reasons is generally not recognized as a fraudulent amount

Whether it constitutes fraud depends on whether the perpetrator commits a deceptive act that makes the other party fall into a misunderstanding, and the other party then disposes of the property. In marriage and love fraud cases, because the two parties have lived together for a long time, in the many money exchanges between the two parties, there are also perpetrators who obtain property from the victim for real reasons.

At this time, because the perpetrator has no fictitious reasons, commits a deceptive act, does not have the purpose of illegal possession, and the victim has not fallen into a misunderstanding, which does not meet the constituent elements of the crime of fraud, the money obtained for real reasons will be deducted from the amount of fraud. In the (2022) Zhejiang 0825 Xingchu No. 136 criminal court verdict, the court held that the actual purpose of the perpetrator to obtain money from the victim is consistent with the reason for asking the victim for money, and this part of the money should be deducted from the amount of fraud.

However, in judicial practice, there are also courts that hold the opposite view, holding that the reason for the occurrence of the payment should not be distinguished from whether it is true or not. Any person who makes up his identity or marriage at the beginning and obtains the payment by defrauding the victim's trust should be regarded as the general intention of the actor to defraud, and should be identified as the amount of fraud.

In the (2020) Su 01 criminal court verdict No. 198, the court held that the appellant lied about his family wealth, lied about his fictitious identity to defraud the victim's trust and illegally possessed the victim's money, and the relevant money obtained by his fictitious facts should be included in the amount of the fraud crime. Whether the use of the money and the whereabouts of the money are true does not affect the establishment of the fraud crime, so it should not be deducted.

concluding remarks

Through the summary and analysis of the above-mentioned court's effective judgment, it can be seen that the judicial authorities determine whether the perpetrator constitutes fraud in such cases, generally by examining whether the perpetrator is based on the purpose of illegal possession, and then through the "gorgeous" appearance of fictitious marital status and occupation, they have a marriage relationship with the other party, deceive the other party's trust, and constantly ask the other party for high-value property under various excuses.

However, since the purpose of illegal possession is the subjective intention of the perpetrator, it is difficult to directly see that the judicial organ can only comprehensively determine the subjective intention by concealing the marital status of the perpetrator or having a marriage relationship with multiple people at the same time, and obtaining the amount from the victim for fictitious reasons such as investment, illness, and borrowing.

However, in a real marriage and love relationship, there are often normal life behaviors such as one party being unfaithful to the relationship, borrowing money from the other party, and one party generating more expenses for living together. Therefore, when handling similar cases, whether the other party is in a state of knowing the perpetrator's marriage, occupation, and economic situation, whether the two parties are borrowing based on real borrowing intentions or the other party is transferring money based on mistaken understanding, among the many transfers that occur between the two parties, which transfers are based on real reasons and living together, and whether the perpetrator has returned the money before the crime is committed, are important factors affecting whether the perpetrator constitutes fraud and determines the amount of fraud.

In practice, if you encounter similar problems, please seek help from a professional lawyer in a timely manner. A professional lawyer is by your side.

Team Profile

Mu Qing, Lawyer

Zhiheng Law Firm

Guangdong

is a practicing lawyer, deputy secretary-general of the Labor and Social Security Law Professional Committee of Guangdong Bar Association, member of the Financial Crime Defense Legal Professional Committee of Shenzhen Bar Association, enterprise human resource planning division (national second level), enterprise labor relations coordinator (national second level), enterprise legal risk manager, enterprise legal consultant Qualification, engaged in corporate compliance governance, company articles of association sorting, company control disputes, labor and employment compliance review, company mergers and acquisitions, due diligence, contract formulation and modification, commercial negotiation, debt disputes, criminal defense and other legal services.

***

Zhiheng Law Firm

Guangdong

intern lawyer, engaged in corporate compliance, equity disputes, debt disputes, marriage and family disputes, criminal defense and other legal services.

This article and its content are shared by Zhiheng lawyers, for communication purposes only, and do not represent the legal opinions, suggestions or decision-making basis issued by the law firm or lawyers. If you need legal advice or legal professional analysis, please contact the professional lawyers of

, or leave your contact information in a private message WeChat official account. If you need to reprint this article, please contact the official account editor in the background.