It is generally believed that the basic structure of this crime is: the actor commits fraud for the purpose of illegal possession → the victim has a wrong understanding → the victim disposes of the property based on the wrong understanding → the actor obtains the property → the victim suffers property losses. [ 1]?
Second, the filing standards
Beijing
According to 1998 jointly issued by Beijing Higher People's Court, Beijing People's Procuratorate and Beijing Public Security Bureau in July, the documents on eight kinds of crimes against property stipulate the amount standards of eight kinds of crimes against property in Beijing, such as theft, fraud, embezzlement and robbery: the amount standard for fraud (calculated in RMB) is more than 3,000 yuan; The amount is huge and above 50,000 yuan; The amount is extremely huge, more than 200 thousand yuan. It also stipulates that the amount is an important criterion for determining the crime of infringing property, but it is not the only criterion. In addition to the amount of property infringement, we should make a comprehensive analysis according to other specific circumstances of the crime, as well as the guilty attitude and repentance of the fraud suspect, in order to correctly convict and sentence.
Henan Province
Henan province fraud filing standards;
For the crime of fraud, we stipulate that the value of defrauding public and private property is 5,000 yuan, 50,000 yuan and 500,000 yuan, which should be taken as the starting point of "large amount", "huge amount" and "particularly huge amount" stipulated in Article 266 of the Criminal Law. [3]?
Shanghai
Standards for filing fraud cases in Shanghai;
1On April 24, 1997, Shanghai Higher People's Court, Shanghai People's Procuratorate, Shanghai Public Security Bureau and Shanghai Municipal Bureau of Justice made the following provisions on the specific amount standard for determining fraud crimes in Shanghai according to the relevant provisions of the Criminal Law and the Judicial Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases, combined with the actual situation of this Municipality:
One, personal fraud of public and private property in more than 4 thousand yuan, belonging to the "large amount"; Individuals who defraud public or private property of more than 50,000 yuan belong to a "huge amount".
Individuals who defraud public or private property of more than 2,000 yuan but less than 4,000 yuan, have a criminal record of fraud or cause serious consequences such as suicide, serious injury or death, shall also be investigated for criminal responsibility according to law.
Units that defraud public or private property of more than 654.38+10,000 yuan belong to "a large amount"; Units that defraud public or private property of more than 300,000 yuan belong to a "huge amount".
Second, in the fraud cases accepted before the issuance of this opinion, the amount of personal fraud is more than 2,000 yuan but less than 4,000 yuan, and the amount of unit fraud is more than 50,000 yuan and 654.38+10,000 yuan. (And the suspect has been arrested and prosecuted, criminal responsibility can still be investigated, but the punishment can be lightened, mitigated or exempted according to law.
General fraud
Generally, fraud and theft are the same. For fund-raising fraud, loan fraud, bill fraud and other economic fraud, please refer to the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crimes.
Fraud public and private property
Article 266 of the Criminal Law stipulates that 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. Where there are other provisions in this Law, such provisions shall prevail.
According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases, 1. According to the provisions of Articles 151 and 152 of the Criminal Law, swindling public or private property with a large amount constitutes the crime of fraud. Individuals who defraud public or private property of more than 2,000 yuan belong to a "large amount"; Individuals who defraud public or private property of more than 30,000 yuan belong to a "huge amount".
Third, the legal basis
Article 266 of the Criminal Law stipulates that 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. Where there are other provisions in this Law, those provisions shall prevail [2].
Article 210, paragraph 2, whoever defrauds special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or offset taxes shall be convicted and punished in accordance with the provisions of Article 266 of this Law.
Article 269 Whoever commits theft, fraud or robbery and uses violence or threatens violence on the spot to conceal stolen goods, resist arrest or destroy criminal evidence shall be convicted and punished in accordance with the provisions of Article 263 of this Law.
Article 300 The third paragraph of the article organizes and uses cult organizations or superstitions to rape women and defraud property, and shall be convicted and punished in accordance with the provisions of Articles 236 and 266 of this Law respectively.
Article 287 Whoever uses computers to commit financial fraud, theft, corruption, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this Law.
Relevant decision
The Decision of NPC Standing Committee on Maintaining Internet Security (2000. 12.28) aims to protect the legitimate rights of individuals, legal persons and other organizations. If one of the following acts constitutes a crime, criminal responsibility shall be investigated in accordance with the relevant provisions of the Criminal Law: theft, fraud and extortion by using the Internet.
Fourth,
In order to punish fraud crimes according to law, according to the relevant provisions of the Criminal Law of People's Republic of China (PRC) (hereinafter referred to as the Criminal Law) and the Decision of the NPC Standing Committee on Punishing Crimes of Disrupting Financial Order (hereinafter referred to as the Decision), several specific issues in the trial of fraud cases are explained as follows:
1. According to the provisions of Articles 151 and 152 of the Criminal Law, defrauding a large amount of public or private property constitutes a crime of fraud.
Individuals who defraud public or private property of more than 2,000 yuan belong to a relatively large amount; Individuals who defraud public or private property of more than 30 thousand yuan belong to a huge amount.
Individuals who defraud public or private property of more than 200,000 yuan belong to a huge amount of fraud. The huge amount of fraud is an important part of fraud, but it is not the only plot. The amount of fraud is more than 654.38+10,000 yuan, and under any of the following circumstances, it should also be considered as "the circumstances are particularly serious":
(1) The ringleader of a fraud group or the principal of a major fraud crime.
(2) The recidivist or fugitive commits serious crimes;
(3) defrauding a legal person, other organization or individual of the means of production urgently needed, which seriously affects production or causes other serious losses.
(4) defrauding disaster relief, emergency rescue, flood control, special care, relief and medical funds and materials, thus causing serious consequences;
(five) squandering fraudulent property, resulting in fraudulent property can not be returned.
(six) the use of fraudulent property for illegal and criminal activities.
(7) Having received criminal punishment for fraud.
(8) Causing the victim's death, mental disorder or other serious consequences;
(9) Other serious circumstances.
The person in charge directly responsible for the unit and other directly responsible personnel commit fraud in the name of the unit, and the proceeds of fraud are owned by the unit, and the amount is more than 50,000 to 654.38+10,000 yuan, and the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article 151 of the Criminal Law; If the amount is more than 200,000 yuan but less than 300,000 yuan, the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article 152 of the Criminal Law.
For the crime of * * * with the nature of fraud, the amount of the crime should be determined by the amount of the actor's participation in the crime of * * * with the nature of fraud, and the punishment should be given according to the status, role and illegal income of the actor.
Fraud has been started, but the property cannot be obtained due to reasons other than the will of the actor, which is an attempted fraud. Attempted fraud, if the circumstances are serious, should also be convicted and punished according to law.
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government may, according to the economic development of the region and considering the social security situation, determine that the amount of personal fraud in the region is large and the amount of unit fraud is huge within the range of "2,000 yuan to 4,000 yuan" and "30,000 yuan to 50,000 yuan" respectively, investigate the criminal responsibility of the relevant personnel, and determine the applicable criminal law with reference to the amount stipulated in the fourth paragraph.
When calculating the amount of fraud, the amount returned before the crime should be deducted and determined according to the actual amount not returned. When sentencing, the amount defrauded many times can be considered as aggravating circumstances.
If the perpetrator commits fraud, the property seized or frozen after the crime and the fruits thereof shall be returned to the victim if the ownership is clear; If the ownership is unclear, it can be returned to the victim according to the proportion of the money and goods defrauded by the victim to the total amount of seized, frozen property and fruits; If it can be determined that the seized or frozen property and its fruits do not belong to the identified victims, but it cannot be returned to the unidentified victims, it shall be turned over to the state treasury according to law.
If the perpetrator has used the fraudulent property to repay personal debts, pay for goods or other economic activities, and the other party knows that it is fraudulent property, it is obtained in bad faith and should be recovered; If it is obtained in good faith, it will not be taken back.
The monetary amount used in this interpretation refers to the RMB amount. If a specific case involves foreign currency, it shall be converted into RMB according to the foreign exchange quotation published by the State Administration of Foreign Exchange at the time of the act.
In this interpretation, "above" includes this number. [7]?
reference data
1. On the significance of adding unit crime to fraud. Legal Education Network [citation date: 20 13-07- 17]
2. China People's Criminal Law (revised 20 15). Hangzhou Public Security Network.2015-1-16 [reference date: 20 17- 14].
3. The Provincial High Court announced the new standard of fraud amount. Sina Henan [reference date 20 14-04- 17]
4. The concept and objective elements of the crime of fraud. Legal Express [citation date 20 13-04-07]
5. What are the constitutive elements of the crime of fraud? Find the law network [reference date 2012-11-08]
6 "two highs" on the specific application of legal issues in handling criminal cases of fraud. The Supreme People's Procuratorate, People's Republic of China. 20 1 1-04-08[ reference date 2012-07-0/kloc-0]
7. the Supreme People's Court's interpretation of the application of the law on fraud. The Supreme People's Court [citation date 20 12-08- 16]
8. Billionaires were wrongly acquitted at the end of seven years and demanded 22 million yuan of state compensation. People's Daily Online [citation date: 2014-12-01]
9. Billionaires were wrongly acquitted at the end of seven years and demanded 22 million yuan of state compensation. The Supreme People's Court death penalty review lawyer network [citation date: 2014-12-01]