(1) sentencing of individuals who commit fund-raising fraud
According to Article 192 of the Criminal Law: "Whoever commits the crime of fund-raising fraud shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be fined not less than 20,000 yuan but not more than 200,000 yuan; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; Whoever commits the crime of fund-raising fraud, if the circumstances are particularly serious, shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment, and a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property. "
The above-mentioned serious and particularly serious circumstances refer to the huge amount or other serious circumstances, and the huge amount or other particularly serious circumstances respectively. In other words, the amount of fund-raising fraud is not the only basis for sentencing this crime.
When sentencing in judicial practice, we should not only consider the amount of fund-raising fraud, but also consider the perpetrator's criminal circumstances, such as whether he has been carrying out illegal fund-raising fraud, whether he is the ringleader of a fund-raising fraud group, the economic losses caused to fund-raisers, and the impact on society. , as well as the consistent performance of criminals, their attitudes after committing crimes, and the return of stolen money and goods, so as to comprehensively evaluate the degree of social harm of their actions, treat them differently, and impose sentencing.
As for the huge and especially huge starting point, referring to the provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases, 1996 16, individuals and units that raise funds to defraud more than 200,000 yuan and more than 500,000 yuan can be considered as huge; Personal fraud1100,000 yuan or more, and unit fraud of 2.5 million yuan or more can be considered as extremely huge.
(2) Sentencing for the crime of fund-raising fraud committed by relevant units.
According to the provisions of Article 200 of the Criminal Law, if a unit commits the crime of fund-raising fraud, it shall be fined; The person in charge and other persons who are directly responsible for it shall be punished in accordance with the provisions of Article 192 of the Criminal Law.
Article 200 of the Criminal Law: Provisions on Punishing the Crime of Financial Fraud by Units If a unit commits the crimes specified in Articles 192, 194 and 195 of this section, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and may also 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 five 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.
How to identify the crime of fund-raising fraud?
The boundary between fraud and lending behavior
If the borrower is in arrears for a long time for some reason, or fabricates a lie or conceals the truth to defraud money and materials, it can't be repaid at maturity, as long as there is no purpose of illegal possession, no profligacy or deception, and it really means repayment; There are also some people who forge repayment vouchers and lie that they have repaid their debts after they have owed them. This is still a loan dispute and does not constitute fraud.
The boundary between fraud and defaulting on payment for goods on behalf of others.
In the name of buying goods in short supply on behalf of others, taking the payment without buying anything, misappropriating the payment without authorization, defaulting on repayment, etc., we should focus on its real purpose, the relationship between the two parties, the cause of the incident, the specific behavior of the agent, the plot and consequences of breach of contract, and correctly judge whether it has the intention of illegal possession. If you can obviously want to buy it, but you still want to return it because you can't buy it for misappropriation, you can't be punished as fraud. Anyone who swindles in the name of purchase, defrauds a large amount of property, squanders money, has no intention to return it at all, and is unable to return it, should be punished as fraud.
The boundary between fraud and fund-raising enterprises hiding debts due to losses
If it is indeed a fund-raising enterprise, but because of poor management, loss of debt, going out to avoid debt, or property debt disputes. This is essentially different from fraudsters who abscond with money for the purpose of illegal possession in the name of raising funds to run enterprises.
The boundary between fraud and fraud
Both use deception, and the latter may also obtain property benefits, which are the same; But the subjective purpose, criminal means, the amount of property and the object of infringement are all different. The crime of swindling and cheating is a swindling and cheating act aimed at defrauding all kinds of illegal interests, pretending to be a state functionary, and damaging the prestige of state organs, social public interests or citizens' legitimate rights and interests. The fraud not only includes property (but not limited to the amount), but also includes work, position, honor, etc., which belongs to the crime of disturbing social management order. Criminals impersonate state functionaries to defraud public and private property, which infringes on property rights and damages the prestige and normal activities of state organs. They are implicated offenders, and the charges should be determined according to the main object and main harmfulness of the behavior. If the amount of property defrauded is not large, but the prestige of state organs is seriously damaged, it should be punished as the crime of swindling and cheating; Otherwise, it is defined as fraud. If two kinds of objects seriously infringe, they are generally treated as fraud according to the principle of one felony. Two kinds of crimes have been committed independently, and if they are not related to each other, they shall be dealt with according to the principle of combined punishment for several crimes.
The boundary between this crime and other fraud crimes stipulated in this law
The remaining chapters of this law respectively stipulate crimes such as fund-raising fraud, loan fraud, financial bill fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud and contract fraud. These fraud crimes are the same as this crime in subjective and objective aspects, but they are different in subject, criminal means, subject elements and objects, which are easy to distinguish. Therefore, this article stipulates that "if there are other provisions in this law, those provisions shall prevail."
criminal punishment
1. Whoever commits this crime 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 three years but not more than ten years and shall also be fined;
3. 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.
According to the 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 (implemented on April 8, 20 1 1).
Defrauding public or private property to reach the above amount standard.
(three) fraud in the name of disaster relief fund-raising;
(four) defrauding the disabled, the elderly or the disabled;
(5) Causing the victim to commit suicide, mental disorder or other serious consequences.
The amount of fraud is close to the above-mentioned standards of "huge amount" and "extremely huge amount".
penal provision
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.
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.
judicial explanation/interpretation
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud
(Fa Shi [20 1 1] No.7)
The 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 was adopted by the the Supreme People's Court Judicial Committee at its 15 10 meeting on124 October.
20 1 1 year March 1 day
In order to punish fraudulent criminal activities in accordance with the law and protect the ownership of public and private property, according to the relevant provisions of the Criminal Law and the Criminal Procedure Law, combined with the needs of judicial practice, some issues concerning the specific application of law in handling fraudulent criminal cases are explained as follows:
Article 1 Whoever swindles public or private property in an amount of over 3,000 yuan, over 30,000 yuan, over 100,000 yuan and over 500,000 yuan shall be deemed as "large amount", "huge amount" or "especially huge amount" 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, in combination with the economic and social development of the region, jointly study and determine the specific amount standards implemented in the region within the scope of the amount specified in the preceding paragraph, and report them to the Supreme People's Court and the Supreme People's Procuratorate for the record.
Article 2 Whoever cheats public or private property to the amount specified in Article 1 of this Interpretation, under any of the following circumstances, may be given a heavier punishment according to the provisions of Article 266 of the Criminal Law:
(a) sending text messages, making phone calls or publishing false information through the Internet, radio and television, newspapers and magazines, etc., defrauding an unspecified majority.