How long can the Qinhuangdao detention center be sentenced to about 3 thousand yuan for burglary?

The sentencing standard of theft is subdivided into one: the sentencing standard of theft with a large amount and a statutory penalty of less than three years: 1000 yuan but less than 2,500 yuan, it shall be subject to public surveillance, criminal detention, fixed-term imprisonment of less than six months or a single fine; Those who are more than 2,500 yuan but less than 4,000 yuan shall be sentenced to fixed-term imprisonment of not less than six months but not more than one year; Those between 4,000 yuan and 7,000 yuan shall be sentenced to fixed-term imprisonment of not less than one year but not more than two years; Those who are more than 7000 yuan but less than 10000 yuan shall be sentenced to fixed-term imprisonment of two years and three years. Second, the amount of theft is huge, and the statutory punishment is fixed-term imprisonment of not less than three years but not more than ten years: those who are less than 10000 yuan and less than 17000 yuan shall be sentenced to fixed-term imprisonment of not less than three years but not more than four years; 17,000 yuan but less than 24,000 yuan shall be sentenced to fixed-term imprisonment of more than four years and less than five years; Those who are more than 24,000 yuan but less than 365,438+10,000 yuan shall be sentenced to fixed-term imprisonment of not less than five years but not more than six years; Those who are more than 365,438+10,000 yuan and less than 38,000 yuan shall be sentenced to fixed-term imprisonment of more than six years and less than seven years; Those who are more than 38,000 yuan and less than 45,000 yuan shall be sentenced to fixed-term imprisonment of not less than seven years but not more than eight years; Those who spend more than 45 thousand yuan but less than 52 thousand yuan shall be sentenced to fixed-term imprisonment of not less than eight years but not more than nine years; Whoever is more than 52,000 yuan but less than 60,000 yuan shall be sentenced to fixed-term imprisonment of not less than nine years but not more than ten years. Third, the amount of theft is particularly huge. Sentencing standards for fixed-term imprisonment of more than 10 years and life imprisonment: those who are more than 60,000 yuan but less than 78,000 yuan shall be sentenced to fixed-term imprisonment of more than 10 years and less than 11 years; Those who are more than 78,000 yuan but less than 96,000 yuan shall be sentenced to fixed-term imprisonment of not less than 11 years but not more than 12 years; Those who are more than 96,000 yuan but less than 65,438 yuan shall be sentenced to fixed-term imprisonment of 12 years and less than 13 years; 114,000 yuan but less than132,000 yuan shall be sentenced to fixed-term imprisonment of not less than 13 years but not more than 14 years; 132,000 yuan and less than 150,000 yuan shall be sentenced to fixed-term imprisonment of 14 years and less than15 years; Life imprisonment 150000 yuan or more. Theft amount (1) Personal theft of public and private property is "large", generally starting from 300-500 yuan; A few regions with rapid economic development can start from 600 yuan. (2) Personal theft of public and private property is "huge", generally starting from 3,000-5,000 yuan; In a few areas with rapid economic development, the starting point can be 6000 yuan. (3) Personal theft of public and private property is "extremely huge", which can generally reach 20,000-30,000 yuan; A few areas with relatively fast economic development can start from 40,000 yuan. The higher people's courts and people's procuratorates of provinces, autonomous regions and municipalities directly under the Central Government may, according to the local economic development and taking into account the social security situation, determine the amount standards implemented in their respective regions and report them to the Supreme People's Court and the Supreme People's Procuratorate for the record. "The amount is huge" starting from 4000 yuan; "The amount is extremely huge" starts from 30,000 yuan. It depends on your area. Iv. Punishment According to this article, there are four sentencing ranges for this crime, namely: 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. The so-called "large amount", according to the explanation, the value of personal theft of public or private property is from 500 yuan to 2,000 yuan. The starting point for stealing special invoices for value-added tax or other invoices that can be used to defraud export tax rebates and deduct taxes is 25 copies. In addition, according to paragraph 1 of Article 9 of the Interpretation, those who steal national third-class cultural relics should also be sentenced according to this range, that is, they should be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Impose a fine or a single fine. If a fine is imposed, according to Article 7 of the Interpretation, it shall be fined less than twice the amount of theft 1000 yuan; A criminal who should be fined according to law, but does not have the theft amount or cannot calculate the theft amount, shall be fined more than 1000 yuan 1000 yuan (the same below). 2. Whoever commits this crime, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not less than 3 years 10 years and fined. Serious circumstances refer to a huge amount or other serious circumstances. The number is huge. According to the explanation, it refers to personal theft of public or private property, with a value of more than 5,000 yuan to less than 20,000 yuan. The starting point for stealing special invoices for value-added tax or other invoices that can be used to defraud export tax rebates and deduct taxes is 250 copies. Other serious circumstances refer to other serious circumstances except huge amount. According to the third item of Article 6 of the Interpretation, the amount of theft has reached the starting point of "large amount". Under any of the following circumstances, it can be considered as "other serious circumstances": (1) the ringleader of a criminal group or the principal in a serious crime; (2) Theft of financial institutions; (three) the crime of escape is seriously harmful; (4) recidivism; (5) Causing the victim's death, mental disorder or other serious consequences; (six) theft of disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical funds and materials, resulting in serious consequences; (seven) theft of means of production, which seriously affects production; (8) Causing other heavy losses. In addition, according to the provisions of Article 9 (l) of the Interpretation, those who steal national second-class cultural relics should also be sentenced to fixed-term imprisonment of more than 3 years 10 years and fined according to this range. 3. If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. The amount is especially huge or there are other particularly serious circumstances. According to the explanation, the so-called "huge amount" means that the value of personal theft of public and private property is more than RMB 30,000 to RMB 654.38+10,000. Stealing special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or deduct taxes, the starting point for a particularly huge amount is 2500, and other particularly serious circumstances refer to other particularly serious circumstances except for a particularly huge amount. According to the third item of Article 6 of the Interpretation, if the amount of theft reaches the starting point of "huge amount" and has one of the following circumstances, it can be considered as "other particularly serious circumstances": (1) the ringleader of a criminal group or the principal with serious circumstances in the same crime; (2) Theft of financial institutions; (three) the crime of escape is seriously harmful; (4) recidivism; (5) Causing the victim's death, mental disorder or other serious consequences; (6) stealing funds and materials for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical care, with serious consequences: (7) stealing means of production, which seriously affects production; (8) If other heavy losses are caused, and according to Article 9, paragraph 1 of the Interpretation, those who steal national first-class cultural relics shall also be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. 4. Whoever commits this crime steals financial institutions, and the amount is especially huge or steals precious cultural relics, and the circumstances are serious. Confiscate property. The so-called theft of financial institutions refers to the theft of financial institutions' operating funds, securities and customer funds, such as depositors' deposits, bonds, other funds and materials, settlement funds of enterprises, stocks, etc., excluding the theft of financial institutions' office supplies, means of transportation and other property. According to the third paragraph of Article 9 of the Interpretation, "the circumstances of stealing precious cultural relics are serious" mainly refers to the theft of national first-class cultural relics. Stealing more than three pieces of national second-class cultural relics or stealing more than one piece of national first-class cultural relics 1 has one of the circumstances specified in Item 1, 3, 4 and 8 of Item 3 of Article 6 of this Interpretation. 5. In the crime of theft committed by * * *, every * * commits the same intentional * *. Responsible for the harmful consequences caused by the theft of * * *. When trying the crime of stealing * * * *, the defendants should be treated separately according to the specific circumstances of the case: (1) The ringleaders of criminal groups should be punished according to the total amount of group theft; (2) Other principals in the * * * accomplice crime shall be punished according to the amount of the * * * accomplice theft that they participated in or organized and directed. (three) the range of sentencing should be based on the amount of accomplice theft that he participated in, in accordance with the first? Paragraph 2 of Article 7 provides for a lighter, mitigated or exempted punishment. 6. A thief who should be fined according to law shall be fined not less than one yuan but not more than two times the amount of theft; A criminal who should be fined according to law, but has no theft amount or cannot calculate the theft amount, shall be fined from one yuan to one hundred thousand yuan. Transformation between this crime and robbery: Article 269 Whoever commits theft, fraud or robbery, uses violence on the spot or threatens violence to hide stolen goods, resists arrest or destroys evidence shall be convicted and punished in accordance with the provisions of Article 263 of this Law. With the implementation of the above provisions, theft can be transformed into robbery and punished according to robbery. Article 264 of the Criminal Law stipulates that whoever steals public or private property in a large amount or many times 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; Under any of the following circumstances, he shall be sentenced to life imprisonment or death, and his property shall also be confiscated: (1) stealing financial institutions, with a particularly large amount; (2) stealing precious cultural relics, if the circumstances are serious. According to the above provisions, it can be seen that Article 264 of China's Criminal Law stipulates four sentencing ranges for theft, but it does not specifically stipulate "theft with a large amount or multiple thefts", "theft with a huge amount or other serious circumstances", "theft with a particularly large amount or other serious circumstances" and "theft of precious cultural relics". Criteria for determining "serious circumstances" In order to better implement Article 264 of the Criminal Law, the Supreme People's Court issued Law Interpretation [1998] No.4 "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases" on March1998, which explained in detail the contents that were not clearly stipulated in this article. It seems that the provisions of Article 264 of the Criminal Law have been perfected, but in judicial practice, there are many different understandings of the provisions of Article 6, paragraph 3 of this interpretation, which leads to different specific punishment standards for theft criminals in actual law enforcement, and the phenomenon of unfair law enforcement, obvious injustice or ineffective crackdown exists to varying degrees. The third paragraph of Article 6 of the Interpretation stipulates that the amount of theft reaches the starting point of "large amount" or "huge amount". Under any of the following circumstances, it can be identified as "other serious circumstances" or "other particularly serious circumstances" respectively: 1. The ringleader of a criminal group or the principal in the same crime with serious circumstances; 2. Theft of financial institutions; 3. The crime of escape is seriously harmful; 4. recidivism; 5. Causing death, mental disorder or other serious consequences to the victim; 6. Stealing funds and materials for disaster relief, emergency rescue, flood control, poverty alleviation, immigration and medical assistance, causing serious consequences; 7. Stealing the means of production, which seriously affects production; 8. In judicial practice, there are several views on the application of this clause: The first view is that this clause is a theft with one of eight situations. Those who reach the starting point of "large amount" or "huge amount" can be identified as "other serious circumstances" or "other particularly serious circumstances" respectively. Since it is "identifiable", it can be "unrecognizable". Whether to do so depends entirely on the judge's discretion. At the same time, people who hold this view believe that it is obviously unfair to sentence criminals in one of the eight situations stipulated in the preceding sentence just because the amount of theft by criminals has reached the starting point of the amount stipulated in the preceding sentence. The reason is that theft is a crime against property, and its social harm is mainly manifested in the amount of property infringement. A heavier punishment in accordance with the law within the scope of the amount is enough to reflect the seriousness of punishment and has played a legal effect of severely cracking down on theft crimes. There is no need to increase the statutory penalty range and aggravate the punishment. Therefore, people who hold this view basically refuse to apply this clause. The second view is that although this provision is "ascertainable", the word "may" here should have the usual meaning. Because this paragraph is the judicial interpretation of what is "other serious circumstances" and "other particularly serious circumstances", it aims to make the judicial organs have laws to follow when applying Article 264 of the Criminal Law. Although it is stipulated as "yes", it should be generally applied in the application of criminal law, just as China's criminal law stipulates that "surrender can be given a lighter punishment", only under special circumstances, such as the person has both. Only when there are other mitigating circumstances can it be deemed inapplicable, otherwise the judicial interpretation will be useless, which will not only lose the fairness of the law, but also fail to reflect the crackdown on such crimes. The third view is that the provision itself is inappropriate, and the first and fourth provisions of this paragraph conflict with the principled provisions of China's criminal law. Article 26 of China's Criminal Law stipulates that the crime of organizing and leading shall be punished according to all the crimes committed by the group; other principal offenders shall be punished according to all the crimes they participated in or organized and directed. Then, according to the provisions of Article 264 of the Criminal Law, the principal of the crime of theft can only be punished within the scope of his crime amount. However, according to the first item of the third paragraph of Article 6 of the judicial interpretation, a criminal can be sentenced within the scope of his sentence. It is a kind of aggravated punishment, which violates the basic principle of criminal law to punish first offenders. At the same time, Article 65 of China's Criminal Law stipulates that recidivists should be given heavier punishment. According to Article 264 of the Criminal Law, a person who steals a large amount and is a recidivist can only be given a heavier punishment within the range of fixed-term imprisonment of not more than three years, criminal detention or public surveillance. The maximum legal penalty cannot exceed three years in prison. However, according to the fourth item of the third paragraph of Article 6 of the judicial interpretation, it can be sentenced within the range of fixed-term imprisonment of more than three years and less than ten years, which reflects the aggravated punishment for recidivists. Because these two provisions of judicial interpretation are contrary to the provisions in the general principles of criminal law, the legal effect of judicial interpretation is lower than that of criminal law, so it is inappropriate. The fourth view is that judicial interpretation is not applicable. There is nothing wrong with the four items, because according to the provisions of Article 264 of the Criminal Law, there are two standards for the judicial application of theft. First, the composition of theft emphasizes two conviction criteria: "large amount" and "multiple theft"; Secondly, in terms of sentencing circumstances, "huge amount" and "other serious circumstances" and "extremely huge amount" and "other particularly serious circumstances" correspond to each other. The eight situations specified in this paragraph are how to identify "other serious circumstances" and "other particularly serious circumstances". According to this regulation, once a criminal has "amount" and "one of eight circumstances", the sentencing should be based on whether he has "other serious circumstances" or "other particularly serious circumstances", rather than simply measuring the punishment by the range determined by "amount". Therefore, the appearance of first-time offenders and recidivists as a condition here reflects the crackdown on theft in China's criminal law and does not conflict with the principled provisions on first-time offenders and recidivists in the general principles of criminal law. The author believes that the above four viewpoints. It is also biased. The author believes that the uncertainty of this provision is the root cause of judicial disputes. As far as the first and second viewpoints are concerned, the first viewpoint seems to emphasize the judge's discretion and the rationality of the law. Essentially, it is a misinterpretation of the current judicial interpretation. At present, due to cognitive bias in many areas, some judicial personnel simply do not apply or do not fully apply this provision, and some judicial personnel use it as an excuse. Too lazy to apply it, and some even have opposing views between procuratorial organs and judicial organs. One side emphasizes application, while the other side strongly opposes it, and no consensus can be reached. In the end, there was a phenomenon of wrangling, which led to the existence of this clause. The second view emphasizes the unity and standardization of law application, which can better reflect the original intention of this provision. The universal application of this provision can not only strengthen the crackdown on such crimes, but also reflect the needs of society. It also legalizes the application of article 264 of the Criminal Law. Therefore, for the first two viewpoints, the author tends to the second one. But at the same time, the author also believes that the universal application of this provision does have the suspicion of aggravating punishment. Although some crimes are small in amount and not harmful to society, although they meet one of the eight situations in this paragraph, it is difficult to embody the principle that criminal law should adapt crime to punishment, and I think it is really inappropriate to apply them. Because the meaning of punishment lies in paying equal attention to punishment and education. Angry prisoners can hardly be satisfied with the reform. Excessive punishment may give him enough punishment, or it may plant deep hatred for society in his heart, and it is difficult to educate him to turn over a new leaf. Therefore, the author thinks that the amount of theft can be stipulated as the second punishment standard, which has one of eight situations. It should be recognized as having "other serious circumstances" or "other particularly serious circumstances". Take "other serious circumstances" as an example: the standard of "large amount" of theft in our province is RMB 65,438+0,000 yuan, and the standard of "huge amount" is RMB 65,438+0,000 yuan. If the amount of theft crime reaches more than 7,000 yuan, it shall comply with the provisions of this paragraph. Theft criminals should be identified as theft according to the provisions of this paragraph and sentenced to three to ten years in prison. Secondly, it stipulates that although the "amount" of theft crime is not close to the punishment standard of the second range, it has reached more than 1/2 of the "amount". If the "amount" reaches more than 5,000 yuan according to the regulations of our province, it is a criminal record and will not change after repeated education. If the social impact is great and one of the circumstances specified in this paragraph is involved, it shall still be deemed as having serious theft and punished. As for the third and fourth views, the author prefers the third. I think the fourth one is more in line with the original intention of this paragraph, but why does the author prefer the third one? The author believes that the first and fourth items should not be used as conditions for determining whether there are "other serious circumstances" or "other particularly serious circumstances". First, as a principled provision of the criminal law, the criminal law has clearly stipulated that if they are used as conditions for aggravating punishment, it is equivalent to repeated aggravation, which is contrary to the principles of the criminal law and is also obviously unfair's. Second, taking these two situations as conditions will cause confusion in the application of other laws. For example, for * * in the same crime. Should the principal offender be given a lighter punishment within the same punishment range or reduced to the next punishment range? Because the accessory's sentence is lighter than the principal's, if the punishment is lighter, it can only be punished within the same range of the principal, which undoubtedly increases the punishment for the accessory; If the punishment is reduced to the next level, it is too different from the punishment of the principal offender and unfair to the principal offender. Another example is the provision for recidivism. If recidivism is regarded as a condition and the offender is punished, will the recidivist be severely punished after the circumstances are determined to be serious? As one of the conditions stipulated in this clause, recidivism aims at cracking down on theft. It is understandable to increase the punishment for recidivists of similar crimes, but if they are other types of recidivists, should they be cracked down so severely? If a criminal is both a recidivist and a first-time offender, should he be given a heavier punishment after promotion? Is this an excessive blow and unfair? In view of the above point of view, the author thinks that this paragraph should set a more reasonable amount standard, and make it clear that those who meet one of the conditions should be "identified" as having "other serious circumstances" or "other particularly serious circumstances" rather than "identifiable", which not only ensures the unified implementation of the law, but also prevents the abuse of discretion due to different judicial understandings, resulting in obvious injustice or ineffective crackdown; At the same time, the author thinks that it is not appropriate to take the principal offender and recidivist as one of the conditions, because the general principles of criminal law have been stipulated in principle, and then taking other conditions as aggravated punishment is indeed suspected of legal conflict, which is not conducive to the implementation of the law. The author believes that only by solving the above two problems can this provision be more enforceable.