14.3 刑事欺诈
14.3 Criminal Fraud
“欺诈”在语言上的意思是欺骗。若说某人在买卖中欺诈了另一人,即是指他欺骗了对方,并使其屈服。在价格上欺诈,指以高于或低于其价值的价格出售物品。 欺诈行为在伊斯兰教法中是被禁止的,因为可靠的圣训已明确确认,欺骗是绝对禁止的。布哈里传述,阿卜杜拉·本·欧麦尔说:有人向先知ﷺ提到,他在做买卖时有欺骗行为;安拉的使者ﷺ说:“如果你做买卖,就说:没有欺骗(khilaba)。” 艾哈迈德·本·罕百勒传述,艾奈斯说:在安拉的使者ﷺ时代,有一个人经营买卖,但他心智薄弱;他的亲属来见安拉的使者ﷺ,说:“安拉的先知啊,请宣布某人为无行为能力者(即禁止他处理财产),因为他在心智薄弱的情况下经营买卖。”于是安拉的先知ﷺ召见了他,并禁止他出售。他说:“安拉的先知啊,我不能忍受不做买卖。”安拉的使者ﷺ说:“如果你不肯停止做买卖,那就说:看这个,看那个,没有欺骗。” 拜宰尔传述,艾奈斯说:安拉的使者ﷺ“禁止出售未挤奶的牲畜”(因为这属于欺骗)。
Fraud, linguistically means deceit, so if it is said that He defrauded Him in selling and buying, it means that He deceived him, and subdued him. Deceiving in the price means to sell something for more or less than it’s worth. Criminal fraud is prohibited in Shar’a because it was confirmed in the authentic Hadith that deception is forbidden decisively. Bukhari narrated from ’Abdullah ibn ’Umar that a man mentioned to the Prophet (pbuh) that He deceives in trading; the Messenger of Allah (pbuh) said: “If you entered into trading say there is no deceit (khilaba).” Ahmad ibn Hanbal narrated from Anas “that a man at the time of the Messenger of Allah (pbuh) used to trade while He was mentally weak; his relatives came to the Messenger of Allah (pbuh) and said: ‘O Prophet (pbuh) of Allah, declare so and so person as legally incompetent (i.e. prevent Him from disposition) because He trades while He is feeble minded; so the Prophet (pbuh) of Allah (swt) invited Him and forbade Him from selling; He said: ‘O Prophet (pbuh) of Allah, I cannot bear not to trade.’ The Messenger of Allah (pbuh) said: “If you are not going to stop trading, say: look at this look and at that, there is no deceit.’” Al-Bazzar narrated from Anas that the Messenger of Allah (pbuh) “forbade selling animals left unmilked” (as deception).
这些圣训要求放弃欺骗,这表明禁止欺骗是决定性的。因此,欺骗是哈拉姆(被禁止的)。但实际上,被禁止的欺骗是犯罪性的(即过度的)欺骗或欺诈,因为禁止欺诈的理由在于它是价格上的欺骗;而如果欺骗很轻微,则不会被称为欺骗,而只会被视为谈判技巧的一种。因此,只有过度的欺骗才被视为欺诈。若欺诈得到证实,被欺骗者可以选择撤销买卖或继续完成交易,即:若买卖中出现欺诈,被欺骗者如果是卖方,可以选择退还钱款而取回商品;如果是买方,可以选择退还商品而取回钱款。但他不得索取赔偿,即商品实际价格与成交价格之间的差额。这是因为安拉的使者(愿主福安之)赋予他选择撤销买卖或继续完成交易的权利。阿德-达拉古特尼记载,穆罕默德·本·叶海亚·本·希班说:安拉的使者(愿主福安之)说:“如果你购买时说没有欺骗,那么在你所购买的每件商品中,你在三个夜晚之后有权选择接受(该商品)并持有它,或将其退还给its主人。”这表明被欺骗者有选择的权利;但这一选择权须具备两个条件:第一,在订立合同(或交易)时对价格缺乏了解;第二,价格出现过度的涨或跌,而人们在订立合同时不会参与此类欺骗。犯罪性的欺诈,是指商人们认为属于欺诈的行为。 这并非按价格的三分之一或四分之一来计算,而是交由签约时当地商人的估计来决定;因为涨幅与跌幅因商品种类和市场而异。
These Ahadith demanded giving up deception, which indicates that forbidding of the deception was decisive. Therefore, deception is Haram (prohibited). But in fact, the deception that is Haram is the criminal (i.e.excessive) deception (or fraud), because the reason for prohibiting fraud is that it was a deception in the price; but this would not be called a deception if it was minute, as it would then be a form of skill in negotiation. So deception is only considered fraud if it was excessive. If fraud was proven, the deceived person has the choice to abrogate the sale or to conclude it i.e. if fraud appeared in the sale then the deceived person has the choice to return the money and take the commodity if He was the seller, and to return back the commodity and take the money if He was the purchaser. But He is not allowed to take the indemnity i.e. the difference between the actual price of the commodity and the sale price. This is because the Messenger of Allah (pbuh) gave Him the choice either to abrogate the sale or to conclude. Ad-Daraqutni mentioned from Muhammad ibn Yahya ibn Hibban that He said that the Messenger of Allah (pbuh) said: “If you purchased say there is no deception, then in every commodity you purchased you have the choice after three nights to accept (the commodity) and thus hold it or to return it back to its owner.” This indicates that the deceived person has the choice; but the choice is proved by two conditions: the first is the lack of knowledge of the price at the time of contract (or deal), and the second is the excessive increase or decrease with which people do not involve in deception at the time of contract. The criminal fraud is that which the traders consider as being so. This is not assessed by one third or by one fourth of the price, but it is rather left to the estimation of the traders in the town at the time of concluding the contract; because the amount of increase and decrease differs according to the types commodities and the markets.