It refers to the act of pretending to be a soldier for the purpose of seeking illegal interests. There are various specific forms of expression, such as cheating in military uniforms, cheating with forged military officers' cards and so on. Forms of expression, such as cheating in military uniforms.
1. The object of this crime is the good prestige of the army and its normal activities.
2. The objective aspect of this crime is the act of pretending to be a soldier. The so-called swindling refers to pretending to be a soldier and swindling. There are various specific forms of expression, such as cheating in military uniforms, cheating with forged military officers' cards and so on.
3. The subject of this crime is the general subject, that is, any natural person who has reached the age of 16 and has the ability of criminal responsibility can become the subject of this crime.
4. The subjective aspect of this crime is intentional and has the purpose of seeking illegal interests. The so-called illegal interests. It includes not only material benefits such as money and property, but also intangible benefits such as honor treatment and heterosexual sex. If the actor does not seek illegal benefits, for example, the actor pretends to be a soldier in order to stay smoothly or buy a car ticket, and pretends to be a soldier simply to marry others. , does not constitute this crime.
Fold and edit this paragraph.
Collapse the elements of an object.
The object of this crime is the prestige of the army and its normal activities. This is one of the main differences between this crime and the crime of property right fraud. In recent years, illegal and criminal activities of posing as soldiers have occurred frequently and have a developing trend. Some lawless elements take advantage of the people's trust in the army and the high reputation enjoyed by the people's army, pretending to be military units and active servicemen to swindle and cheat, seize illegal interests and engage in illegal and criminal activities. Some set up stalls under the banner of the army, practicing medicine and selling fake and shoddy goods; Some fake and steal the name of military-run enterprises and engage in economic fraud. These illegal acts not only seriously endanger the safety of people's lives and property, infringe upon the interests of the masses, disturb the social management order and the national economic order, but also seriously damage the reputation and image of the army, interfere with the normal work of the army and affect the military-political relationship.
Article 25 of China's "National Defense Law" stipulates that "the state prohibits any organization or individual from illegally establishing an armed organization, carrying out illegal armed activities, and pretending to be an active serviceman or an armed forces organization." Although the perpetrator's deception may also defraud property, the people believe that these illegal acts are committed by soldiers because the perpetrator has adopted the means of impersonating soldiers, thus directly damaging the prestige of state organs and their normal activities. This is also the special and substantial harm of this crime.
Collapse target element
This crime is objectively manifested as the behavior of the perpetrator pretending to be a soldier or a professional title to commit fraud.
1, the actor must have the behavior of posing as a soldier's identity or title. If the perpetrator pretends to be a non-soldier, such as party member, children of princelings, children of martyrs, managers of private or collective enterprises, buyers, etc. , and engage in fraud activities, can not constitute this crime. Those who reach the level of crime may constitute fraud or other crimes. The so-called impersonation of soldiers can be either impersonation of soldiers or impersonation of officers; They can be soldiers pretending to be China People's Liberation Army or China People's Police Force. As far as specific methods are concerned, some non-soldiers pretend to be soldiers, or wear military uniforms, or carry and use military officer's cards, soldier's cards and civilian cadre's cards; Or call themselves officers, soldiers, students, etc. Military organs, troops, colleges, hospitals or scientific research units. Some of them are soldiers, but pretending to be other soldiers who are not their own identities, such as soldiers pretending to be officers to cheat, can also constitute this crime.
2. The actor must have the behavior of swindling and cheating. In other words, the actor should pretend to be a soldier or a professional title, parade around the city, and use the people's trust in the soldiers to defraud illegal interests. The so-called swindling here refers to concealing one's true identity and carrying out all kinds of cheating activities in society under the banner and name of the army. If you start a business with others, sign a contract, recruit soldiers, recruit workers, recruit cadres, etc. You will cheat others of their money; Pretending to be a soldier to defraud the trust of organizations and units and gain political capital such as honor and position; Pretending to be a soldier to cheat others' love, marry them and even play with women; Wait a minute. Generally, it has the characteristics of continuity and repeatability. If the perpetrator only did it once, it should not be punished as a crime in principle.
The above two elements must be organically linked at the same time in order to meet the objective requirements of fraud. If the actor only pretends to be a soldier out of vanity and does not use it to defraud illegal interests, it does not constitute this crime. If the actor pretends to be a soldier and defrauds illegal interests, but does not impersonate a soldier to defraud illegal interests, that is, there is no organic connection between the two behaviors, which does not constitute the crime of pretending to be a soldier. His illegal interests may constitute other crimes.
Collapse the elements of the theme.
The subject of this crime is the general subject, that is, any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can become the subject of this crime. The object of the actor's impersonation is only the active servicemen of the China People's Liberation Army and the Chinese People's Armed Police Force, excluding reservists and other personnel performing military tasks. However, there are different views on whether a soldier posing as a soldier who does not belong to his own identity, such as a soldier posing as an officer and a junior officer posing as a superior officer, can constitute this crime. One thinks that soldiers can't constitute this crime, and the other thinks that soldiers can also constitute this crime. We believe that the key to pretending to be a soldier here is to appear as a soldier who does not belong to himself. In this way, soldiers posing as soldiers of other identities can also constitute this crime.
Collapse subjective elements
Subjectively, this crime is intentional, and its criminal purpose is to seek illegal interests. The illegal interests mentioned here not only refer to material interests, but also include all kinds of intangible interests, such as to defraud some political treatment or honor treatment, and even to defraud "love" and play with the opposite sex. However, the subjective malignancy of this crime is generally limited to the scope of "deception". If the perpetrator subjectively intends to rob and rape, pretending to be a soldier is only a means to psychologically threaten the victim so that he does not dare to resist, it is a more serious crime. It should be treated as robbery and rape respectively. If there is no purpose of seeking illegal interests, such as the actor pretending to be a soldier just out of vanity, pretending to be a soldier simply for marrying others, or pretending to be a soldier for the sake of smooth accommodation or ticket purchase, it does not constitute this crime.
Fold and edit this paragraph logo.
(A) the difference between crime and non-crime
To constitute this crime, the perpetrator should not only pretend to be a soldier, but also engage in fraud. If the perpetrator pretends to be a soldier just to satisfy vanity and does not engage in fraud, it does not constitute a crime. If the perpetrator engages in fraudulent activities, but does not pretend to be a soldier, it does not constitute this crime; Those who constitute other crimes shall be dealt with according to other crimes.
(2) The boundary between the crime of pretending to be a soldier and the crime of fraud.
The crime of swindling and cheating refers to the act of impersonating the staff of state organs. The provisions of this law on these two crimes involve the concurrence of laws and regulations. The main differences are as follows: First, the objects of infringement are different. The direct object of the former is mainly the reputation and normal activities of the army, while the direct object of the latter is mainly the reputation and normal activities of state organs. Second, the target of crime is different. The criminal object of the former is active servicemen, while the criminal object of the latter is the staff of state organs other than military organs.
(3) Distinguish between the crime of pretending to be a soldier and the crime of fraud.
These two crimes are manifested as cheating, and the crime of impersonating a soldier can also defraud property like fraud, so it is easy to be confused. The difference between these two crimes is mainly manifested in:
(1) infringes on different objects. The object of posing as a soldier is mainly the prestige of the army and its normal activities; The object of the crime of fraud is limited to public and private property rights.
(2) Different means of behavior. The means of pretending to be a soldier is limited to pretending to be a soldier's identity or title for fraud; Fraud is not limited to this, but can be carried out by any means and methods of fabricating facts and concealing the truth.
(3) The subjective purpose of crime is different. The purpose of fraud is to hope to illegally possess public and private property; The purpose of the crime of impersonating a soldier is to pursue illegal interests, which is broader than the purpose of fraud. It can include illegal possession of public or private property and other illegal interests.
(4) Whether the amount of crime is limited.
The law requires that only those who defraud public or private property in a large amount can constitute the crime of fraud; However, there is no requirement for the constitution of the crime of impersonating a soldier, because this crime may not necessarily be manifested as defrauding property, but may be defrauding other illegal interests. Its serious social harm is first manifested in destroying the prestige and normal activities of the army through specific criminal means.
Although there are the above differences between the crime of impersonating a soldier and the crime of fraud, one act violates two crimes at the same time, which belongs to imaginative joinder. Cases of imaginative joinder of offenses should be handled according to the principle of light punishment for felony. Combined with the statutory penalties of these two crimes and the actual situation of this crime, it is generally believed that whether the fraudulent property is huge or not should be treated separately, and both should be judged from a felony: if the fraudulent property is not huge, the crime of fraud has the conditions of a large amount of crime, and the statutory maximum penalty is fixed-term imprisonment of not more than three years; However, there is no big restriction on the constitution of the crime of impersonating a soldier, and the maximum legal penalty is 10 years' imprisonment. Obviously, the latter is more important than the former, so at this time, as soldiers, we should be convicted of swindling. If the amount is huge, the crime of fraud is more than three years 10 years. If the circumstances are particularly serious, the maximum sentence can reach life imprisonment. Obviously, the crime of swindling is more important than swindling a soldier. Therefore, in the case of impersonating a soldier to defraud huge amounts of property, this kind of criminal behavior can no longer be included in the crime of impersonating a soldier, but the principle of combined punishment for several crimes should be applied to convict and sentence the crime of fraud.
Fold and edit this paragraph as a punishment.
Whoever commits this crime by swindling and cheating shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
If the circumstances are serious enough to commit the crime of impersonating a soldier, the aggravated punishment is the aggravated punishment of this crime. Serious circumstances here refer to impersonating a soldier in wartime, causing disputes between the military and the government, between the military and the civilian, between the military and the police, causing serious economic losses or bad social impact, damaging the reputation of the army and causing other serious consequences.