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At present, the relevant legal provisions that can be used to combat cyber crimes are Articles 285, 286 and 287 of the Criminal Law and Paragraph 2 of Article 17, and the Decision on Maintaining Internet Security adopted by the NPC Standing Committee (the National People's Congress Standing Committee (NPCSC)) on February 28th, 2000.
The following excerpt:
One. concept
The crime of fraud (Article 266 of the Criminal Law) refers to the act of fabricating facts or concealing the truth for the purpose of illegal possession, and defrauding a large amount of public or private property.
Second, the constitution of crime.
Object elements
The object of this crime is the ownership of public and private property. Although some criminal activities also use some deception and even pursue some illegal economic interests, they are not or are not limited to the ownership of public and private property. Therefore, it does not constitute fraud. For example, abducting and selling women and children is a crime against personal rights.
The object of the crime of fraud is limited to the property of the state, the collective or the individual, and no other illegal interests may be defrauded. Its goal should also exclude loans from financial institutions. Because this law specifically stipulates the crime of loan fraud in article 193.
objective factor
Objectively, this crime is manifested in the use of fraud to defraud a large amount of public and private property. First of all, the perpetrator committed fraud, which includes two types in form: one is to fabricate facts, the other is to conceal the truth; Essentially, it is an act that makes the victim fall into a wrong understanding. The content of the crime of fraud is that under certain circumstances, the victim will have a wrong understanding and make the property disposition that the perpetrator wants. Therefore, whether it is fiction or concealment of past facts, or present facts and future facts, as long as they have the above contents, they are all fraudulent acts. If the fraudulent content does not make them dispose of their property, it is not fraudulent. Fraud must be to the extent that ordinary people can have a wrong understanding and exaggerate the goods they sell. If it is not beyond the tolerance of society, it is not fraud. There are no restrictions on the means and methods of fraud, which can be either verbal fraud or action fraud; Fraud itself can be either an act or an omission, that is, there is an obligation to inform a certain fact, but failure to fulfill this obligation makes the other party fall into a wrong understanding or continue to fall into a wrong understanding. If the perpetrator uses this wrong understanding to obtain property, it is also a fraud. According to the provisions of Article 300 of this Law, anyone who organizes or uses cult organizations or uses superstition to defraud property shall be punished as fraud.
Fraud makes the other party have a wrong understanding, which is caused by the fraud of the actor; Even if the other party makes some mistakes in judgment, it does not hinder the establishment of fraud. It is necessary to introduce the misunderstanding between fraud and the other party's disposition of property; If the other party disposes of the property without misunderstanding because of fraud, it is not a crime of fraud. As long as the other side of the fraud demands the person who has the right or position to dispose of the property, it is not required that the person is the owner or possessor of the property. By providing false statements and false evidence to file a civil lawsuit, the actor makes the court make a judgment in favor of himself, thus obtaining property, which is called litigation fraud and the crime of fraud is established.
The crime of fraud requires the victim to make property disposition after falling into a wrong understanding, including disposition behavior and disposition consciousness. This requirement is to distinguish fraud from theft. Disposing of property is manifested as direct delivery of property, or commitment of the actor to obtain property, or commitment to transfer property interests. If the perpetrator commits fraud and makes others give up their property, and the perpetrator picks up the property, he should also be punished as fraud. However, the act of putting a piece of metal similar to a coin into a vending machine to obtain the goods in the vending machine does not constitute fraud, but only theft.
After the victim disposed of the property by fraudulent means, the actor obtained the property, thus damaging the victim's property. According to this article, it is a crime to defraud a large amount of public or private property. According to the relevant judicial interpretation, if the amount of fraud is large, it will start with 2000 yuan. But this does not mean that attempted fraud does not constitute a crime. Attempted fraud, if the circumstances are serious, should also be convicted and punished according to law. What needs to be studied is whether it constitutes a crime of fraud when the perpetrator uses fraudulent methods to defraud property, but at the same time pays items of equal value. Some people think that the damage caused by fraud refers to the reduction of the victim's overall property, so the above behavior is not established as fraud; Some people think that it is the loss of the victim's personal property, so the above behavior is still a crime of fraud; Others think that the crime of fraud is an infringement of faith and honesty and does not need property damage. We believe that the crime of fraud is a crime against personal property, not against the whole property. The victim spent 30,000 yuan to buy 30,000 yuan of goods because of being defrauded. Although the whole property has not been damaged, from the perspective of personal property, if there is no fraud by the perpetrator, the victim will not spend 30,000 yuan to buy the goods, but spending 30,000 yuan is the damage to personal property. Therefore, a person who uses fraudulent means to make others fall into a wrong understanding in order to defraud property, even if he pays a considerable amount of goods, should also be considered as fraud.
The crime of fraud is not limited to cheating tangible things, but also includes cheating intangible things and property interests. According to the relevant provisions of Article 2l0 of this Law, it is a crime of fraud to defraud special VAT invoices or other invoices that can be used to defraud tax refund or tax deduction.
(3) Main elements
The subject of this crime is the general subject, and any natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.
⑷ Subjective factors
Subjectively, this crime has direct intention and the purpose of illegal possession of public and private property.
Third, identify
(A) the boundaries between crime and non-crime
L, the boundaries between fraud and lending behavior. If, for some reason, the borrower fails to repay the loan for a long time, or defrauds the money and materials by fabricating lies or concealing the truth, it cannot be repaid at maturity, as long as there is no purpose of illegal possession, no profligacy, no breach of contract, no more fraud and deception, and it is really intended to repay, it still belongs to the loan dispute and does not constitute the crime of fraud.
2. The boundary between the crime of fraud and the act of defaulting on payment 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 circumstances and consequences of breach of contract, and correctly judge whether it has the intention of illegal possession. If you can clearly want to shop for others, but you still want to return the goods, because you can't buy and misappropriate them, you can't be punished as fraud. If you cheat in the name of buying, defraud a lot of property, squander it, have no intention to return it at all, and are unable to return it, you should be punished as fraud.
3. The boundary between fraud and fund-raising enterprises concealing debts due to losses. If it is indeed a fund-raising enterprise, but because of poor management, losses and liabilities, and go out to hide debts, it is still a property debt dispute. This is essentially different from the purpose of illegal possession and absconding with money by fraudsters in the name of raising funds to run enterprises.
(2) The boundary between this crime and the crime of swindling and cheating.
Both use deception, and the latter may also obtain property benefits, which are the same; However, the subjective purpose, criminal means, the amount of property and the object of infringement are all different. The crime of swindling and cheating is aimed at defrauding all kinds of illegal interests, pretending to be a national staff member and implementing swindling and cheating activities. It is an act that damages the prestige of state organs, public interests or the legitimate rights and interests of citizens. What it cheats includes not only property (but no amount limit), but also work, position, status, honor and so on. It is a crime of disturbing social management order. When criminals impersonate state functionaries to defraud public and private property, they infringe on property rights and damage the prestige and normal activities of state organs. They belong to implicated offenders, and should be charged according to the main object and main harm of the behavior and severely punished. If the amount of defrauding property 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 both objects are seriously violated, it is generally handled according to the principle of a felony. If the two crimes are committed independently, if they are not involved in each other, they should be dealt with according to the principle of combined punishment for several crimes.
(3) 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 there are differences in subject, criminal means, subject elements and objects, which are easy to distinguish. Therefore, this article stipulates: "If there are other provisions in this Law, those provisions shall prevail."
Fourth, punishment.
Whoever commits this crime in length 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 on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (19961February 16), 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 plot 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 in a serious crime of joint fraud;
(2) The recidivist or fugitive commits a serious crime;
(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, resulting in serious consequences;
(5) Spending fraudulent property so that fraudulent property cannot 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.
If 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 yuan but less than 100,000 yuan, the criminal responsibility of the above-mentioned personnel shall be investigated in accordance with the provisions of Article 152 of this 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 52 of this Law.
For the crime of joint fraud, the amount of the crime should be determined according to the amount of the actor's participation in joint fraud, and combined with the actor's position and role in the joint crime and the amount of illegal income, it should be punished according to law.
A person who has begun to commit fraud, but fails to obtain property for reasons other than the will of the perpetrator, is an attempted fraud. Attempted fraud, if the circumstances are serious, shall 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 the social security situation, determine the "large amount" and "huge amount" of individual fraud and unit fraud in the region within the range of "2,000 to 4,000 yuan" and "30,000 to 50,000 yuan" respectively, and investigate the criminal responsibility of the relevant personnel, and determine the application of the original criminal law with reference to the amount stipulated in Article 4.
V. Legal and judicial interpretation
Criminal law provisions]
Article 266 Whoever defrauds a large amount of public or private property 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, uses violence on the spot or threatens to hide stolen goods, resists arrest or destroys 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.
[Related Decisions]
The Decision of the NPC Standing Committee on Maintaining Network 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 interpretation]
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (Fa Shi [1996.5438+02.16] No.32).
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 15 1 and 152 of the Criminal Law, swindling 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 plot 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 in a serious crime of joint fraud;
(2) The recidivist or fugitive commits a serious crime;
(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, resulting in serious consequences;
(5) Spending fraudulent property so that fraudulent property cannot 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 joint fraud, the amount of the crime should be determined according to the amount of the actor's participation in joint fraud, and combined with the actor's position and role in the joint crime and the amount of illegal income, it should be punished according to law.
A person who has begun to commit fraud, but fails to obtain property for reasons other than the will of the perpetrator, 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 their respective regions and the social security situation, determine the "large amount" and "huge amount" of individual fraud and unit fraud in their respective regions within the range of "2,000 to 4,000 yuan" and "30,000 to 50,000 yuan", and investigate the criminal responsibility of the relevant personnel, and determine the applicable criminal law with reference to the amount specified 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 used as an aggravating circumstance.
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 seized or frozen property and the total interest; If it can be determined that the seized or frozen property and its interest do not belong to the identified victim, but it cannot be returned to the unidentified victim, 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.
Explanations 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 Organizing and Utilizing Cult Organizations (Law Interpretation [199.10.20]18).
Article 6 Whoever organizes or uses cult organizations to collect other people's property by various deceptive means shall be convicted and punished for fraud in accordance with the provisions of Article 166 of the Criminal Law.
Article 8 Property illegally collected by various means, tools and publicity materials used for crimes, etc. by cult organizations and criminals who use cult organizations to undermine the implementation of the law. Recovered and confiscated according to law.
The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases Disrupting the Management Order of Telecommunication Market (2000.5. 12 Law Interpretation [2000]12No.).
Article 9 Whoever uses false or fraudulent identity documents to go through the formalities of accessing the network and uses mobile phones, thus causing a great loss of telecommunication charges, shall be convicted and punished for fraud in accordance with the provisions of Article 266 of the Criminal Law.
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