In practice, we should adhere to the subjective judgment based on the objective basis, that is, on the premise of finding out the objective facts, according to certain rules of experience or logic rules, to judge whether the actor "aims at illegal possession". To be specific, it is mainly judged from the following three aspects:
(1) Whether the actor has the ability to return, such as the actor's assets and liabilities;
(2) Whether the perpetrator has any positive return or negative non return behavior or performance, such as fabricating facts or concealing the truth and delaying the return of the victim's property;
(3) The attitude of the perpetrator to the property loss of others and the disposition of property after the perpetrator, such as whether the perpetrator has eliminated the control of the victim's property through fraud and transferred its property to the perpetrator or a third person, whether the victim's property is used for the purpose agreed by both parties, or for personal purposes such as consumption and debt repayment, whether it has the ability to transfer property, hide property Refusing to account for the true whereabouts of the property and other behaviors that want to make the property of the victim unrecoverable.
[Legal Basis]
Article 266 of the Criminal Law states that anyone who swindles public or private property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined; If the amount is huge or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined; If the amount is especially huge or if 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 sentenced to confiscation of property. Where this Law provides otherwise, such provisions shall prevail.
