At the age of 37, she got cancer. At the age of 42, He was imprisoned for raising money to treat her and stealing an electric car, with a sentence of four years. 2010165438+10/2,

First, the amount of theft is relatively large, and the statutory penalty is fixed-term imprisonment of not more than three years:

1000 yuan but less than 2,500 yuan shall be sentenced to public surveillance, criminal detention, fixed-term imprisonment of not more 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.

Two, 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:

10000 yuan but 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; Those who are between 52,000 yuan and 60,000 yuan shall be sentenced to fixed-term imprisonment of not less than nine years but not more than ten years.

Three, the amount of theft is particularly large, the statutory sentence of more than ten years of fixed-term imprisonment and life imprisonment sentencing standards:

Those who are more than 60,000 yuan but less than 78,000 yuan shall be sentenced to fixed-term imprisonment of not less than 10 years but not more 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; 150000 yuan or more, life imprisonment.

Theft amount

(a) personal theft of public or private property "a large amount", generally can be 300-500 yuan as a starting point; A few regions with rapid economic development can start from 600 yuan.

(two) personal theft of public or private property "huge", generally can be 3000-5000 yuan as the starting point; A few areas with rapid economic development can start at 6000 yuan.

(3) Personal theft of public or private property is "extremely huge", which can generally start from 20,000-30,000 yuan; A few areas with rapid economic development can start from 40 thousand yuan.

The Higher People's Courts and People's Procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government may, according to the local economic development and considering the social security situation, determine the amount standard to be implemented in their respective regions with reference to the above amount, and report it to the Supreme People's Court and the Supreme People's Procuratorate for the record.

(four) theft cases occurred in the process of railway transportation, and the "large amount" of theft started in 400 yuan; "The amount is huge" starting from 4000 yuan; "The amount is extremely huge" starts from 30,000 yuan.

It depends on your area.

Fourth, punishment.

According to the provisions of 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, refers to the value of personal theft of public and private property from 500 yuan to 2000 yuan. Stealing special invoices for value-added tax or other invoices that can be used to defraud export tax rebates and deduct taxes, the starting point for a large amount is 25 copies. In addition, according to paragraph 1 of Article 9 of the Interpretation, those who steal national third-class cultural relics shall also be sentenced according to this range, that is, they 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 a fine is to be imposed, a fine of less than twice the amount of theft 1 1,000 yuan shall be imposed according to the provisions of Article 7 of the Interpretation; Criminals who should be fined according to law, but do not have the amount of theft or cannot calculate the amount of theft, 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. The so-called serious circumstances refer to the huge amount or other serious circumstances. The so-called huge amount, according to the explanation, refers to the personal theft of public and private property worth more than 5000 yuan to 20000 yuan. Stealing special invoices for value-added tax or other invoices that can be used to defraud export tax rebates and deduct taxes, the starting point for a huge amount 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, if the amount of theft reaches the starting point of "large amount", it can be considered as "other serious circumstances" in any of the following 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; (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 a maximum of three years 10 years in prison and fined.

3. Whoever commits this crime, if the circumstances are especially serious, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. If the circumstances are particularly serious, it means that the amount is particularly huge or there are other particularly serious circumstances. According to the explanation, the so-called "huge amount" refers to personal theft of public and private property, the value of which 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 amount is particularly huge, starting at 2500 copies, and other particularly serious circumstances refer to other particularly serious circumstances except for the extremely large 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": (65438+) (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 money and materials such as disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical care, with serious consequences; (7) stealing means of production, which has a serious impact on 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 10 or life imprisonment, and shall also be fined or confiscated.

4. Whoever commits this crime and steals financial institutions, especially in huge amounts, or steals precious cultural relics, if the circumstances are serious, shall be sentenced to life imprisonment and confiscated 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 and other funds and materials, as well as the settlement funds and stocks of enterprises, excluding the theft of financial institutions' office supplies, transportation and other property. According to the third paragraph of Article 9 of the Interpretation: "Theft of precious cultural relics is serious" mainly refers to the damage and loss caused by theft of national first-class cultural relics, which cannot be recovered; 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 with * * * *, every prisoner intentionally commits the theft with * * * based on * * *, and should be responsible for the harmful consequences caused by the theft with * * * *.

When trying a case of theft, the defendant shall be treated separately according to the specific circumstances of the case:

(1) The ringleader of a criminal group shall be punished according to the total amount of group theft;

(2) Other principal offenders in a joint crime shall be punished according to the amount of joint crime in which they participate or organize or direct theft.

(3) For an accomplice in a joint crime, the range of sentencing shall be determined according to the amount of theft by the accomplice, and the punishment shall be determined in accordance with the provisions of the first paragraph of this Law. Paragraph 2 of Article 7 provides for a lighter or mitigated punishment or exemption from punishment.

6, for theft criminals who should be fined according to law, they should be fined more than one yuan and less than two times; Criminals who should be fined according to law, but have no amount of theft or can't calculate the amount of theft, should be fined not less than one hundred thousand yuan.

The transformation of this crime and robbery;

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.

That is, the implementation of the above provisions, theft can be transformed into robbery, robbery conviction and punishment.

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 this article does not specifically stipulate the identification criteria of "large amount or multiple thefts", "huge amount or other serious circumstances", "extremely large amount or other particularly serious circumstances" and "serious circumstances of stealing precious cultural relics". In order to better implement Article 264 of the Criminal Law, the Supreme People's Court issued Law Interpretation [1998] No.4 in March, explaining in detail the lack of clear provisions in this article. The introduction of this explanation seems to improve the provisions of Article 264 of the Criminal Law. However, in judicial practice, there are many different understandings of the third paragraph of Article 6 of the 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 has appeared to varying degrees. Article 6, paragraph 3, of this interpretation stipulates that if the amount of theft reaches the starting point of "large amount" or "huge amount" and has one 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 disaster relief, emergency rescue, flood control, rescue, poverty alleviation, immigration and relief medical funds and materials, causing serious consequences; 7. Stealing the means of production, which seriously affects production; 8. Causing other heavy losses. The application of this paragraph in judicial practice has the following views:

The first view is that this provision 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 defined as "ascertainable", it is also "indeterminable". Therefore, in law enforcement, it is not necessary to follow the provisions of this paragraph, and whether it is specifically determined is entirely at the discretion of the judge. At the same time, people who hold this view believe that it is obviously unfair to impose a higher punishment on criminals just because the amount of theft of criminals has reached the starting point of the amount stipulated in the previous punishment range, because they have one of the eight situations stipulated in this paragraph. 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. It is not necessary to increase the statutory punishment range and increase the punishment. Therefore, people who hold this view basically refuse to apply this clause.

The second point of view is that although this paragraph is defined as "ascertainable", the word "may" here should have a universally applicable meaning, because this paragraph is a judicial interpretation of what are "other serious circumstances" and "other particularly serious circumstances", aiming at making the judicial organs have laws to follow when applying Article 264 of the Criminal Law. Although it is defined as "may", it is just like our criminal law in judicial practice. In the application of criminal law, it should be universally applied. Only under special circumstances, such as when the person has one of the eight situations and other mitigating circumstances, can he be considered inapplicable. Otherwise, this judicial interpretation will be in name only, which will not only lose the justice of the law, but also fail to reflect the crackdown on such crimes.

The third view is that there is something wrong with this provision itself, and the first and fourth provisions of this paragraph conflict with the principled provisions of our criminal law. Article 26 of China's criminal law stipulates that the ringleader who organizes and leads a criminal group shall be punished according to all the crimes committed by the group, and other principal offenders shall be punished according to all the crimes they participated in or organized and directed. Then, according to Article 264 of the Criminal Law, the principal of the theft crime only needs to be punished within the range of the crime amount. However, according to Article 6, paragraph 3, item 1 of the judicial interpretation, criminals can be sentenced within a relatively long term, which is an aggravated punishment and violates the basic principle of criminal law for first-time offenders. At the same time, Article 65 of China's Criminal Law stipulates that recidivists should be given heavier punishment. According to the provisions of 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 scope of fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and the statutory maximum punishment cannot exceed three years of fixed-term imprisonment. 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 provisions of criminal law, and the legal effect of judicial interpretation is lower than that of criminal law, it is not suitable for application.

The fourth view is that the first and fourth items of this paragraph are not improper, because according to the provisions of Article 264 of the Criminal Law, there are two standards for the judicial application of theft. First of all, 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", he should be sentenced by determining 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 have their own reasons, but they are 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, in many areas, some judicial personnel simply don't or don't fully apply this provision because of their misunderstanding. Some judicial personnel use this as an excuse and are too lazy to apply it. Some even have opposing views of procuratorial organs and judicial organs. One side emphasized the application, while the other side strongly opposed it, so the two sides could not reach an understanding, and finally there was a phenomenon of wrangling, which led to the invalidity of the clause. The second view emphasizes the unity and standardization of law application, and it can be said that the second view can better reflect the original intention of the clause. The universal application of this provision can not only strengthen the crackdown on such crimes and reflect the needs of society, but also legalize the application of Article 264 of the Criminal Law. Therefore, for the first two viewpoints, the author tends to the second one. However, the author also believes that the universal application of this provision does have the suspicion of aggravating punishment. Some crimes are small in amount and do little harm to society. Although it is in line with one of the eight situations in this provision, it is difficult to reflect the principle of suiting crime and punishment in criminal law, and I think it is really inappropriate to apply it. Because the meaning of punishment lies in paying equal attention to punishment and education, it is difficult for an angry prisoner to be content with 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 if the theft amount is close to the second standard of the penalty amount, and it has one of eight circumstances, it can be defined as "other serious circumstances" or "other particularly serious circumstances". Take the determination of "other serious circumstances" as an example: the standard of "large amount" and "huge amount" of theft in our province is more than RMB 65,438+0,000 yuan, and if the amount of theft reaches more than RMB 7,000 yuan and falls into one of the eight circumstances specified in this paragraph, it shall be determined that the circumstances of theft criminals are serious in accordance with this paragraph. Secondly, it is stipulated that the "amount" of this theft is not close to the second punishment standard, but 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, and it belongs to the crime of repeated criminal record, repeated education or repeated theft, which is destructive and has great social impact, and has one of the circumstances stipulated in this paragraph, it should still be recognized. For the third and fourth views, the author prefers the third. The author thinks that the fourth view is more in line with the original intention of the clause, but why does the author prefer the third view? 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 of all, as a principled provision of the criminal law, the criminal law has clearly stipulated that if it is used as a condition to aggravate the punishment range, it is equivalent to repeated aggravation, which is contrary to the principles of the criminal law and obviously unfair. Second, taking these two situations as conditions will cause confusion in the application of other laws. For example, if the principal offender is punished in the same crime, how to identify the accessory? 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 sentencing 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; However, if the punishment is reduced to the next range, it is too different from the punishment of the principal offender and unfair to the principal offender. Another example is the rule of recidivism. If recidivism is regarded as a condition to punish criminals, should recidivism be given a heavier punishment 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 determine a more reasonable amount standard, and clearly define that those who meet one of the conditions should be considered 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 it is indeed suspected of legal conflict to take other conditions as aggravated punishment, 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.