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[If! Support list] 1. [endif] Legal provisions:
Article 266 of the Criminal Law of People's Republic of China (PRC). Whoever defrauds public or private property in a relatively large amount 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 there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or 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 confiscated. Where there are other provisions in this Law, such provisions shall prevail.
[If! Support list] II. [endif] Real case:
(a) the case
Defendant Ding Mou, male, was born in 1983. In June 2008, 5438+065438+ 10 was sentenced to one year's imprisonment for committing theft, and was released on March 20 10. 20 15 1.5 was arrested for this case.
From September 20 14 to September 20 1 1 4, Ding Mou repeatedly pretended to be a staff member to assist the police in handling cases in Changning District, Jing 'an District, Putuo District, Xuhui District and other places in Shanghai, specializing in making friends with minors, and borrowing the victims Hou Mou, Li Mou and Wang Mou, on the grounds that he wanted to identify the criminal suspect and take photos of others with his mobile phone. After that, Ding sold the stolen goods, and the proceeds were squandered.
The district procuratorate filed a public prosecution with the district court against the defendant Ding Mou for committing fraud.
(2) Court decision
The first instance of the District Court held that the defendant Ding Mou secretly stole other people's property for the purpose of illegal possession, and the amount was large, which constituted theft. After the execution of the penalty, Ding was sentenced to more than five years in prison, which was a recidivist and should be severely punished. Ding confessed his crimes truthfully after arriving at the case, and voluntarily confessed similar crimes that the public security organs have not yet mastered. Voluntary confession during the trial can be given a lighter punishment. Accordingly, according to the provisions of Article 264 of the Criminal Law, Ding was sentenced to one year and six months in prison for theft and fined RMB 3,000. The defendant was ordered to return the illegal gains to the victims respectively.
After the verdict was pronounced in the first instance, the district procuratorate protested on the grounds that the original judgment was qualitatively wrong and the sentence was extremely heavy. The reason is that the defendant gained the trust of the victim through fictional facts, and the victim voluntarily handed over his mobile phone and other property and waited in place. The defendant left the scene publicly with the consent of the victim and did not commit theft, while others took advantage of it and fled secretly. Therefore, this case should be considered as fraud; The original judgment resulted in improper sentencing due to qualitative errors.
The first branch of the Municipal Procuratorate supported the protest, arguing that when the victim agreed to the defendant's departure, the property had been delivered and out of the victim's control, the victim had already imposed punishment, and the defendant's behavior should constitute fraud; The original judgment was wrong in nature, but the sentencing was not improper. It is suggested that the court of second instance change the charges and maintain the sentencing.
The First Intermediate People's Court of the City held that Ding Mou, the defendant in the original trial, defrauded others' property many times for the purpose of illegal possession, and his behavior constituted a crime of fraud. Ding is a recidivist and should be severely punished according to law; After arriving at the case, truthfully confess your crimes, and voluntarily confess similar crimes that the public security organs have not yet mastered, and voluntarily plead guilty during the trial, which can be given a lighter punishment. After investigation, the statements of seven victims and relevant identification transcripts confirmed that when Ding pretended to be a staff member who assisted the police in handling the case and fabricated reasons to defraud the victim's mobile phone and other property to leave the crime scene, the victims were all informed, not because the victim was not prepared to escape. The judgment of the first instance found Ding's behavior wrong and should be corrected. Although the nature of the second instance has changed, it does not lead to a very light sentence, and the judgment of the first instance is still within the legal scope. Accordingly, according to the provisions of Article 266 of the Criminal Law and the relevant provisions of the Criminal Procedure Law, the defendant Ding was found guilty of fraud, sentenced to one year and six months in prison and fined RMB 3,000.
(3) Evaluation
1. We discussed theft yesterday and fraud today. Today we will look at the differences between them.
The so-called theft refers to the act of transferring and occupying the control right of others' property by escaping the control of others for the purpose of illegal possession. Theft refers to the act of stealing a large amount of public or private property for the purpose of illegal possession, or repeatedly stealing, burglary, theft with a weapon, and pickpocketing public or private property.
The so-called fraud refers to the act of defrauding a large amount of public and private property by fabricating facts or concealing the truth for the purpose of illegal possession. Because this kind of behavior does not use violence at all, it is carried out in a calm or even "pleasant" atmosphere, and the victims generally have poor awareness of prevention, so they are more likely to be deceived. Fraud refers to the act of defrauding a large amount of public or private property by fabricating facts or concealing the truth for the purpose of illegal possession.
The scope of sentencing for theft: whoever steals public or private property in a relatively large amount, or repeatedly steals, burglary, carrying weapons or pickpocketing, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or 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 confiscated.
The sentencing range of the crime of fraud: whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or 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 confiscated.
As can be seen from the above comparison, the difference between theft and fraud lies in that theft obtains property by secret stealing, while fraud obtains property by fabricating reasons; Theft is committed when the owner of the property is completely ignorant, or knows but is unwilling to hand it over, while fraud is committed when the owner of the property is fully aware and voluntarily hands it over at that time.
The sentencing of the two is basically the same. Therefore, the court of second instance did not change the sentencing under the premise of changing the nature of first instance, which is the reason.
2. The First Branch of the Municipal Procuratorate and the First Intermediate People's Court refer to Beijing, Shanghai, Tianjin and Chongqing. Their establishment level is provincial and ministerial level, and the basic judicial organs are district procuratorates and district courts (deputy division level). Their local highest judicial institutions are the Municipal Procuratorate and the Municipal High Court (deputy division level), plus grass-roots district courts and district procuratorates (deputy division level), municipal intermediate courts and municipal procuratorates (deputy division level) in other ordinary provinces. Therefore, in order to improve the trial level, these cities have set up the first, second and third intermediate courts and the first, second and third branches of the municipal procuratorate respectively. In this case, the trial level is completely corresponding.
Generally speaking, most criminal cases, except felony criminal cases that may be sentenced to death, are the first instance of the district grass-roots courts, the intermediate courts are responsible for the second instance and the first instance appeal review, and the high courts are responsible for the second instance appeal review.
In addition, our general accurate expressions are: district grass-roots courts, municipal intermediate courts, provincial high courts, and supreme courts. Many people will say: the district primary court, this is wrong; In addition, the levels of procuratorates are: District Procuratorate, Municipal Procuratorate, Provincial Procuratorate and Supreme Procuratorate. Many people will say that it is the city intermediate procuratorate and the provincial high court, which is all wrong.
3. Protest and supporting protest refers to the form that the procuratorate exercises judicial supervision because it thinks that the court's judgment is wrong. It has been mentioned before, so I would like to add it here. Generally, the procuratorate at the same level in the original trial lodged a protest. If the procuratorate at the next higher level thinks that the protest is reasonable, it will support the protest, and the court at the next higher level of the original court will try it accordingly. For example, in the above-mentioned cases, the district procuratorate thought that there was something wrong with the judgment of the district court, so it filed a protest. After examination, the first branch of the municipal procuratorate at the next higher level thinks that the protest is reasonable, so it will support the protest, but it will change the reasons for supporting the protest or modify the sentencing proposal according to the actual situation, so the intermediate court will hear it accordingly. Then at this time, the judiciary is the intermediate court, and the defense is the prosecution, which means that the prosecution is the first branch of the Municipal Procuratorate and the defense is the defendant.
In addition, in this case, we can see that the judgment of the district court, the protest of the district procuratorate, the protest supported by the procuratorate at the next higher level, and the judgment of the court of second instance are basically inconsistent, which just reflects the realistic characteristics of the judicial organs in China. The district court will not decide anything because the district procuratorate files a lawsuit. If the district procuratorate thinks that the protest opinion of the district procuratorate is wrong, the district procuratorate will also protest. If the procuratorate at the next higher level thinks that there is something wrong with the protest opinion of the district procuratorate, it will be revised in the opinion supporting the protest. Judging from the judicial procedure of this case, China's judicial supervision and checks and balances system is very representative.
Three. Lessons learned:
First, be careful to lend property to strangers. If you have to, you must not let your mobile phone and other property get out of your control.
Second, now all kinds of fraud methods emerge in an endless stream, becoming more and more sophisticated. Everyone must grasp it well and don't be greedy. Many fraudsters use the psychological weakness of human greed to design scams. If you don't want justice, you will get rid of greed, and many scammers will have no way to start with you;
Third, as in the case, for swindlers who pretend to be staff members of state organs, first check their certificates and official seals, and if possible, make a phone call to ask if this person has carried out such actions that day. Generally speaking, a liar will feel guilty when he sees you calling so seriously to verify the situation, and maybe he will find a reason to slip away.
Ok, that's all for today's class. I hope it can inspire you.
Looking back, today we know the difference between fraud, fraud and theft, the origin of the First Branch of the Municipal Procuratorate and the First Intermediate People's Court, protest and support for protest, judicial checks and balances, etc. I gave three suggestions to avoid fraud. I hope you got something.
Congratulations, you have learned another lesson.
Today, there are still 360/365 from the other side of practical legal cognition.
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