Article 266 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.
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. In judicial practice, we should pay attention to the following issues when determining this crime:
1 The object of this crime is public and private property, which can be tangible or intangible; It can be movable property or movable property; It can also be property rights. But it does not include defrauding reputation, status and other illegal interests. At the same time, the specific targets of crimes listed in the Criminal Law, such as defrauding bank loans, insurance companies' insurance premiums and defrauding export tax rebates, cannot be finally identified, and should be dealt with according to the crimes of loan fraud, insurance fraud and defrauding export tax rebates. The act of impersonating a state functionary to obtain special treatment cannot be regarded as this crime.
The key to this crime is that the perpetrator has committed fraud. The so-called fraud means that the perpetrator makes the victim believe by fabricating facts or concealing the truth, and "automatically" gives the property to the perpetrator. Three points should be noted here:
(1) There are two main forms of deception: one is fictional fact, that is, the actor deliberately fabricates objective facts to defraud the victim's trust; The other is to conceal the truth, that is, the actor covers up the objective facts and makes the victim have a wrong understanding;
(2) The result of fraud is to make the victim fall into a wrong understanding and believe it; (3) The actor's acquisition of property is based on the property disposition made by the victim due to misunderstanding. The victim usually disposes of the property by directly delivering the property to the actor, or by giving up the property or promising the actor to obtain the property. This is the key to distinguish the crime of fraud from other crimes against property.
It is necessary for the actor to defraud others of public or private property. According to the relevant judicial interpretation, the crime of fraud is relatively large, starting with the amount of property defrauded worth more than 2,000 yuan.
This crime can only be constituted by natural persons. However, if a unit organizes fraud and the proceeds from fraud are owned by the unit, and the amount is more than 50,000 yuan to 65,438+10,000 yuan, the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility for fraud.
According to the provisions of the criminal law and relevant judicial interpretations, the following points should be paid attention to when punishing the crime of fraud:
1 fraud, according to the following range of punishment:
(1) If the amount is relatively large, he 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; (2) If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 3 years 10 years and fined; (3) If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years, and shall also be fined or confiscated.
According to the relevant judicial interpretation, the above-mentioned "large amount" refers to individuals defrauding public and private property of more than 2,000 yuan; "Huge amount" refers to individuals defrauding public and private property of more than 30,000 yuan; "The amount is extremely huge" refers to individuals defrauding public and private property of more than 200,000 yuan.
"Other particularly serious circumstances" means that the amount of fraud is more than 6,543,800 yuan, and there are one of the following circumstances: (654.38+ 0) the ringleader of the fraud group or the principal offender with serious circumstances in the 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; (5) Spending fraudulent property, which makes it impossible to return the fraudulent property; (six) the use of fraudulent property for 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 punishment of this crime is heavier, that is, during the prevention and control of disasters such as sudden infectious diseases, in the name of developing, producing and selling disaster relief materials for the prevention and control of sudden infectious diseases, defrauding public and private property constitutes this crime and the punishment is heavier.
The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases
(19961February 24th, the Supreme People's Court Judicial Committee.
Discussed and adopted at the 853rd meeting)
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 "large amount"; Individuals who defraud public or private property of more than 30,000 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) ringleaders of fraud groups or principals of major fraud crimes;
(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;
(5) Spending fraudulent property, which makes it impossible to return the fraudulent property;
(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.