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author: zhao hong

professor, peking university law school

recently, a case of fraud for "performing a ritual" was heard in the potou district court of zhanjiang city, guangdong province. the prosecutors accused chen mougui and chen mouhua of engaging in feudal superstitious activities in zhanjiang city, and defrauding others of a total of 86,800 yuan by fabricating a ritual to summon the souls of the deceased.

during the trial, the focus of the prosecution and defense was whether "performing rituals to summon the souls of the deceased and save their souls" and "not performing rituals will cause the souls of the deceased to be separated from their bodies and affect their descendants" were "fabricated facts" in the crime of fraud. news interviews also revealed that the ancestors of the accused chen mougui and chen mouhua had been engaged in the "rituals" business for several generations, and chen mougui had been doing it for more than 40 years.

this case caused an uproar in public opinion as soon as it came out. after all, it is somewhat contrary to the public's sense of law to suspect a criminal offense simply for performing a ritual.

is “calling back the souls of the deceased and praying for their reincarnation” a fictitious fact in the crime of fraud?

the crime of fraud in the criminal law is the act of defrauding a large amount of public or private property for the purpose of illegal possession by using deceptive methods; the amount of property defrauded of others is 3,000 yuan as the starting point. this also shows that as long as it meets the criminal elements of the crime of fraud, the profit is more than 3,000 yuan, which constitutes a crime. the criminal elements of the crime of fraud include: the fraudster has a deceptive act that causes the other party to have a wrong understanding and then dispose of the property; the deceptive act must cause the other party to fall into a mistake of understanding; the other party disposes of the property based on the mistake of understanding; the fraudster obtains the property, and the deceived person suffers property loss.

among the above elements, whether there is "fraudulent behavior" is the key to conviction and sentencing. fraudulent behavior refers to fabricating facts and concealing the truth. the former is an active action, such as a big man pretending to be a young girl and defrauding netizens of money under the pretext of online love; the latter is a passive inaction, that is, knowing that the other party will fall into a wrong understanding and having the obligation to inform, but concealing the truth and deliberately not informing.

the focus of this case is also here: the prosecution believes that the criminal suspect chen mougui deceived the family of money by claiming that not performing a ritual would cause the deceased's soul to be separated from his body and affect his children, which is a "fabricated fact" in the crime of fraud; but the defense believes that ordinary people pay for "rituals" not because they firmly believe that "rituals" can really help the deceased's soul to be liberated, or that not performing a ritual will definitely have adverse consequences, but only out of remembrance of the deceased and comfort for the living, and is a completely funeral activity with folk customs.

if we only rely on the facts of the case that have been exposed so far, that is, the victims involved in the case have also expressed that they do not completely believe in the feudal superstition. the hiring of the defendant to "perform a ritual" is also a market transaction based on the autonomy of the parties. then this case does not seem to constitute fraud, because it lacks the core element that the parties "fall into a wrong understanding" due to the fraudulent behavior of the perpetrator.

the reason why this case has attracted public attention is that it is often difficult to distinguish between feudal superstition and folk customs. some activities and behaviors, even if they were originally superstitious, have become folk customs over time. if all "feudal superstition" activities based on folk customs are treated as fraud and punished criminally, the criminal law will break the modesty that it should strictly abide by.

however, it is not necessarily the case that anything related to folk customs and practices does not fall within the scope of criminal law.

if you look through the judicial documents website, you will also find cases where people were convicted of fraud for defrauding money by using "fortune-telling".

for example, in 2020, wang from hubei province learned that he could make money by fortune-telling and exorcising people online, so he contacted li, who had a need for fortune-telling. after learning li's basic information, wang fabricated that li's family had a bad fate, that ghosts from previous lives came to collect debts, and that rituals were needed to resolve the debts, and asked li to transfer 4,600 yuan to him. later, he asked li for nearly 20,000 yuan on the grounds that li's sister's spirit needed to be resolved through rituals, and that the soul had not returned and needed to continue to perform rituals. in this case, the court held that wang should be held criminally responsible for fraud.

in another verdict in 2021, the defendant lin also posted fortune-telling information online, and the victim ge was defrauded of a total of 75,900 yuan by lin on the grounds that he needed to perform a ritual to improve his fortune. this case was also convicted and sentenced for fraud.

the commonality of these cases is that the parties were engaged in typical feudal superstitious activities such as performing rituals, exorcising demons, eliminating disasters, fortune-telling, etc., and the victims were willing to pay for their feudal superstitious needs. the only difference seems to be that chen mougui in this case has been engaged in the business of "performing rituals" for generations. this professionalism offsets its deceptiveness to a considerable extent and is more easily compared to the activities of chanting sutras for people in temples. therefore, it seems that they are no longer simple feudal superstitions, but have a religious color.

however, according to article 40 of the regulations on religious affairs, "collective religious activities of religious citizens should generally be held in religious venues." if religious activities are held in non-religious venues, the religious affairs department will work with the public security, civil affairs, construction, education, culture, tourism, cultural relics and other departments to order them to stop the activities, and will confiscate illegal gains and illegal property and impose fines.

in this way, even monks and nuns with ordination certificates must perform rituals in designated places, and the fees collected are also managed in accordance with the regulations on religious affairs.

does the law prohibit non-religious clergy from performing rituals?

the above complex background has also led to many difficulties in legal identification and handling:

first, does the law prohibit non-religious clergy from chanting sutras, performing rituals, etc. outside of religious sites?

secondly, if non-religious clergy engage in the above-mentioned behavior, is it necessarily illegal? if the purpose is to make money, does it necessarily constitute fraud?

third, if such ritual activities are initiated by the "victims" and carried out, and the "victims" themselves also firmly believe that rituals can help the deceased to transcend, or even if they do not firmly believe in them, they are willing to follow such customs to gain inner comfort, can the legal responsibilities of those who carry out the rituals be exempted?

regarding the first question. although the regulations on religious affairs require that religious activities be conducted in religious places in principle, the law does not explicitly prohibit non-religious clergy from performing rituals outside religious places. however, because such behavior can easily be linked to feudal superstition, according to the law on public security administration punishment, "detention, fines, etc. may be imposed for the use of superstitious activities to disrupt social order and harm the health of others." if a large amount of money or property is defrauded of others by fabricating facts and concealing the truth for the purpose of illegal possession, it will constitute fraud in the criminal law.

from this point of view, if it is just a simple ritual, and there is no result of "disturbing social order, harming others' health", or even defrauding others' property, the law does not encourage or support it, but it does not seem to completely prohibit it. the reason for not prohibiting it and not directly classifying it as an illegal act is that feudal superstition is always connected with folk customs and even often related to religious beliefs. if administrative penalties and criminal penalties are used arbitrarily, the problem of state interference in freedom of belief will arise.

regarding the second and third questions, based on simple legal intuition, if religious activities, even divination, exorcism and disaster relief are conducted free of charge, they certainly cannot be classified as illegal or criminal, unless they disrupt social order or harm the health of others (for example, persuading others to take poisonous substances). however, if the purpose is to make money, it is very likely to be suspected of illegality or even crime.

in practice, in order to attract business and facilitate transactions, those who perform rituals will certainly publicize that such activities can exorcise demons, eliminate disasters and help the deceased to be liberated. however, such publicity, coupled with the result of collecting money from others, can easily be classified as "fabricating facts and concealing the truth" from an atheist standpoint. even if the victim himself firmly believes that the ritual has such an effect, and the fees for the ritual are based on the autonomy of both parties, the legal responsibility of the ritualist cannot be exempted.

from this point of view, even if we feel that this case is contrary to the simple legal sense of citizens at first, we will still find the complexity of such cases if we dig deeper. because the elements are vague and complicated, whether performing rituals to make money constitutes fraud is not certain in judicial application, and it is easy to fall into the subjective judgment of judicial personnel.

do citizens have the right to be superstitious?

if we regard the state's punishment of ritual performers as the state's protection of individuals from the influence of feudal superstition, then the complexity of the application of the criminal law lies in the fact that there is an unresolved and controversial issue behind it: do citizens have the right to be superstitious? even if citizens are deceived by feudal superstition and engage in some ignorant and uncivilized behavior, does the state have the right or even the obligation to intervene?

as mentioned above, it is difficult to distinguish between feudal superstition and folk customs and even religious beliefs, and modern countries should in principle maintain a neutral position in this area. a typical example is that the german federal constitutional court once declared in a judgment that "the state shall not intervene in the beliefs, beliefs, behaviors and expressions of beliefs of individuals or religious groups. supporting or opposing a certain belief is a personal matter, not a state matter."

based on this, the state needs to be extremely careful when dealing with religious issues. not only should it not favor certain beliefs, it should not exclude other beliefs through criminal crackdowns. only when the state first fulfills such negative obligations of respect and restraint can it ensure true freedom of belief for individuals and peaceful coexistence of various beliefs.

because it concerns the individual's inner order and value choices, even if certain religious behaviors and folk customs are superstitious, the state can only change customs through soft means such as encouragement, guidance, publicity, and suggestions, and cannot easily resort to administrative penalties or even criminal penalties to forcibly prohibit them.

this is a manifestation of the liberal position. this position ensures, first of all, the autonomous choice of individuals, even if this choice is not only irrational but also extremely ignorant for the general public. in this sense, individuals have the right to superstition, and the state has no right to intervene in superstition in a rough manner.

however, freedom always has its limits. if superstitious activities harm the vital personal and property rights of the superstitious believer or even others, or even endanger public order and public safety, the state not only has the power but also the obligation to intervene.

for example, in the united states and europe, there have been many cases where parents refused to provide medical assistance to their children because of their extreme religious beliefs and were subsequently sentenced by the court. this reflects the state's strong intervention in the superstitious behavior of parents based on considerations for the interests of children. although this intervention has a paternalistic color, it is essentially a value trade-off between the state's freedom of belief and the child's right to life.

it is also in this sense that we can understand the cases in judicial documents where people were convicted of fraud in the end for continuously asking for money from parties under the pretext of performing rituals or exorcising demons.

in fact, in practice there are many cases where fake masters intimidate, insult and threaten their believers in order to obtain huge amounts of property. because of the serious circumstances of such cases, they may not only constitute fraud, but may even constitute extortion.

however, paternalism can be strong or weak. to what extent or under what circumstances should the state intervene in an individual's superstitious rights and superstitious activities is another controversial issue. behind the controversy is still the difference in concepts, whether to respect individual choices, even if this choice will cause harmful consequences, or to correct superstitious behavior. it is also because concepts and choices are almost impossible to unify that disputes in the judicial system of such criminal cases arise.

last year, there was a hit movie called "zhou chu eliminates three evils". the most shocking scene was when the protagonist slaughtered those extreme religious believers in the spiritual hall: chen guilin raised his gun and shot easily, and the believers fell to the ground one by one. however, the seemingly satisfying lynching made people shudder at its brutality and cruelty.

these stubborn believers are indeed ignorant, but should their lives be taken away so easily? this scene probably shows the most horrible way to deal with superstitious people, and it also reminds us that the civilized world has to make complex and difficult value choices when facing superstitious behavior. but precisely because of the complexity, legal workers cannot easily make judgments on guilt or innocence when facing such cases.

back to the present case, whether the rituals performed by chen mougui and chen mouhua can really be classified as fraud, i am afraid it is impossible to make a definite judgment at present, and it still requires more detailed investigation and identification by the court.

"rule of law utopia" was jointly initiated by china university of political science and law teachers chen bi, zhao hong, li hongbo and luo xiang. it is a special original column of the phoenix news commentary department.

editor-in-chief | xiao yi