Prior to this provision, the Supreme People's Procuratorate Research Office also stipulated in the Reply on whether the attempted insurance fraud can be treated as a crime on127/0: If the actor has started to commit insurance fraud, but fails to obtain insurance compensation for reasons other than his will, it is an attempted fraud, and if the circumstances are serious, criminal responsibility shall be investigated according to law.
In judicial practice, there is a view that the amount of fraud (attempted crime) does not have to reach a huge amount, and a large amount also constitutes a crime. This view is wrong. First of all, this view directly violates the relevant provisions of fraud interpretation.
Secondly, the large amount is only the general plot of fraud crime, and it does not belong to "serious circumstances". Thirdly, punishing the attempted fraud that does not reach a huge amount does not conform to the criminal law principle of "crime and punishment should be adapted".
Extended data:
According to the provisions of Article 6 of the Interpretation of Crime of Fraud, if the crime of fraud has been accomplished and attempted, it will be punished in accordance with the provisions of heavier punishment; Those who reach the same sentencing range shall be punished as fraud. According to the provisions of this article, if there are both completed fraud and attempted fraud, they cannot be merged and can only be punished according to the provisions of heavier punishment.
The reason for this provision is that no matter whether fraud is accomplished or attempted, it is a crime of fraud, not two crimes, and the principle of "combined punishment for several crimes" is not applicable. Take Gao's SMS fraud case as an example. Gao sent 10000 fraudulent short messages to an unspecified majority, of which 100 was successful, with a fraudulent amount of 654.38 million yuan and 9900 attempted frauds.
According to the relevant laws and regulations, he was found guilty of fraud, sentenced to four years in prison and fined RMB 654.38 million; Gao was sentenced to one year's imprisonment and fined 20,000 yuan for attempted fraud. According to the above regulations, Gao should be sentenced to four years' imprisonment and fined 654.38+10,000 yuan because of the heavier punishment for the fraud he has completed.
References:
Court Network in Saertu District of Daqing City —— Analysis on the Identification and Punishment of Fraud (Attempted)