Jing County Yinhai Villa Fraud Case

The crime of fraud refers to the act of defrauding a relatively large amount of public or private property by fabricating facts or concealing the truth for the purpose of illegal possession. The object of the crime of fraud is not to defraud other illegal benefits. Its objects should also exclude loans from financial institutions. Because this law has specifically stipulated the crime of loan fraud in Article 193.

It is generally believed that the basic structure of this crime is: the perpetrator commits fraud for the purpose of illegal ownership → the victim develops a misunderstanding → the victim disposes of the property based on the misunderstanding → the perpetrator obtains the property → the victim suffers consequences on the property loss.

1. Sentencing

Article 266 of the "Criminal Law" stipulates that anyone who defrauds public or private property and the amount is relatively large shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance, and shall also be sentenced to Or a fine alone; 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 a fine; if the amount is particularly huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment and concurrently Penalty or confiscation of property. If this law provides otherwise, the provisions shall prevail.

According to the "Interpretations of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases" 1. According to the provisions of Articles 151 and 152 of the "Criminal Law", fraud If the amount of public or private property is relatively large, it constitutes the crime of fraud. If an individual defrauds public or private property of more than 8,000 yuan, it is classified as "large amount"; if an individual defrauds public or private property of more than 30,000 yuan, it is classified as "huge amount".

2. "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud":

Article 1: Fraud of public or private property worth 3,000 to 10,000 yuan Those exceeding RMB 30,000, RMB 30,000 to RMB 100,000, and RMB 500,000 shall be deemed as “relatively large amounts”, “huge amounts” and “especially huge amounts” as stipulated in Article 266 of the Criminal Law respectively.

The higher people's courts and people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government may, based on the economic and social development conditions of the region, jointly study and determine the specific amount standards to be implemented in the region within the amount range specified in the preceding paragraph. Report to the Supreme People's Court and the Supreme People's Procuratorate for filing.

Article 2 If the amount of defrauding public or private property reaches the amount standard stipulated in Article 1 of this Interpretation, and any of the following circumstances occurs, he may be severely punished as appropriate in accordance with the provisions of Article 266 of the Criminal Law:

(1) Fraud on an unspecified number of people by sending text messages, making phone calls, or publishing false information on the Internet, radio and television, newspapers, magazines, etc.

(2) Fraud on disaster relief and emergency rescue , flood prevention, special care, poverty alleviation, immigration, relief, and medical funds

(3) Fraud in the name of raising funds for disaster relief

(4) Fraudulent persons with disabilities, the elderly, or people who have lost money Property belonging to a person capable of working

(5) Causing suicide, mental disorder or other serious consequences to the victim.

If the amount of fraud is close to the standards of "huge amount" or "particularly huge amount" stipulated in Article 1 of this Interpretation, and falls under one of the circumstances specified in the preceding paragraph or is the leading member of a fraud group, it shall be determined separately. It is "other serious circumstances" and "other particularly serious circumstances" stipulated in Article 266 of the Criminal Law.

Article 3: Although the defrauding of public or private property has reached the "relatively large amount" standard stipulated in Article 1 of this Interpretation, if one of the following circumstances occurs and the perpetrator pleads guilty and regrets, he may be punished according to Article 1 of the Criminal Law. Article 37. Article 142 of the Criminal Procedure Law stipulates that no prosecution or criminal punishment shall be exempted:

(1) There are statutory lenient punishment circumstances

( 2) Those who returned all the stolen goods and compensation before the verdict of the first instance

(3) Those who did not participate in the division of the stolen goods or received less stolen goods and were not the principal culprit

(4) Those who were forgiven by the victim

(5) Other cases where the circumstances are minor and the harm is not great.

Article 4: Defrauding close relatives of their property, if the close relatives understand, will generally not be treated as a crime.

It is indeed necessary to pursue criminal liability for defrauding close relatives of their property, and the specific handling should be lenient as appropriate.

Article 5: Anyone who attempts fraud, targets a huge amount of property, or has other serious circumstances shall be convicted and punished.

Using telecommunications technology means such as sending text messages, making phone calls, and the Internet to defraud an unspecified majority of people. The amount of the fraud is difficult to verify, but if one of the following circumstances occurs, it shall be deemed as Article 266 of the Criminal Law. For "other serious circumstances" stipulated in Article 1, conviction and punishment for the crime of fraud (attempted):

(1) Sending more than 5,000 pieces of fraudulent information

(2) Making five fraudulent calls More than 100 people

(3) Violent fraud methods and serious harm.

Whoever commits the acts specified in the preceding paragraph and the quantity reaches more than ten times the standards specified in Items (1) and (2) of the preceding paragraph, or the fraud means are particularly egregious and the harm is particularly serious, shall be deemed to be a criminal offender in the second category of the Criminal Law. "Other particularly serious circumstances" stipulated in Article 166 shall be convicted and punished as fraud (attempted).

Article 6: Fraud includes both completed and attempted fraud, and if they reach different sentencing ranges, they shall be punished in accordance with the heavier penalty provisions; if they reach the same sentencing range, they shall be punished as completed fraud.

Article 7: Anyone who knowingly provides other people with credit cards, mobile phone cards, communication tools, communication transmission channels, network technical support, expense settlement, etc. to commit fraud crimes shall be punished with the same crime.

Article 8: Anyone who pretends to be a staff member of a state agency to commit fraud, which simultaneously constitutes the crime of fraud and pretense, shall be convicted and punished in accordance with the provisions on heavier penalties.

Article 9: The fraudulent property and its interest that have been seized, detained, or frozen after the incident, if the ownership is clear, shall be returned to the victim; if the ownership is unclear, the property and the interest therefrom may be returned to the victim as the defrauded money and property. The proportion of the total amount of property seized, detained or frozen and its interest shall be returned to the victim, but any compensation that has been refunded shall be deducted.

Article 10: If the perpetrator has used the fraudulent property to pay off debts or transferred it to others, and any of the following circumstances occurs, it shall be recovered in accordance with the law:

(1) The other party knows that it is fraud

(2) The other party obtains the fraudulent property for free

(3) The other party obtains the fraudulent property at a price that is significantly lower than the market price

( 4) The other party obtained the fraudulent property due to illegal debts or illegal and criminal activities.

If another person obtains fraudulent property in good faith, it will not be recovered.