Criminal Law Notes: Crime of Infringement on Property

I. Article 263 Robbery

The intersection of crimes against personal and property.

1. Object: other people's property. If my property is kept by a public authority, and if the perpetrator violently grabs it, it can also constitute robbery. If it is stolen, it also constitutes theft (for example, someone lends his car to others and then drives it away with his own key elsewhere, and counterclaims, it is regarded as theft; A certain person looks for a certain person to look at the warehouse, and agrees to pay compensation for stolen things. After that, A used his own key to open the warehouse, took the goods, and made a claim with B, which was regarded as fraud.

2. Pay attention to other means (such as anesthesia, drinking, kidnapping (such as violently hijacking the victim, forcing him to open the door with a key, looting, robbery), etc. ), but the requirements must be caused by criminals.

3. Pay special attention to robbery, there are three conditions:

(1) The perpetrator commits crimes of theft, fraud and robbery, and the amount is relatively large (if the amount is small, but the violence is serious, it can also constitute robbery);

(2) using violence or threatening violence on the spot (what the murderer did in the process of tracking criminals);

(3) The purpose is: resisting arrest, harboring stolen goods, destroying one of the criminal evidences, and robbing with a weapon is regarded as robbery. Ordinary robbery is accomplished by obtaining property (regardless of the amount of property), but for aggravated robbery, failure to obtain property is also regarded as accomplished. If it is only to struggle, it cannot be considered as resisting arrest.

"Gathering people to smash and rob" destroyed or robbed public and private property, and the ringleaders were convicted and punished for robbery.

4. Punishment, ordinary 3 years or more 10 years or less, aggravated 10 years or more.

Eight aggravating circumstances, (1) burglary; (2) Robbery on public transport; (3) robbing banks or other financial institutions; (4) Robbery for many times or the amount of robbery is huge; (5) Robbery causes serious injury or death; (six) posing as military and police personnel to rob; (7) Armed robbery; (eight) robbing military supplies or emergency rescue, disaster relief and relief supplies.

5. Special attention: (1) Entering households refers to civil houses and places where people live and live, excluding public places, institutions, tents headed by herders and fishermen's boats; (2) robbing financial institutions, especially the funds of financial institutions; (3) The purpose of causing serious injury or death must be to obtain property, otherwise, it will be punished for several crimes (intentional homicide, intentional injury, etc.). ); (4) The gun must be a real gun.

If the perpetrator premeditated murder in advance in order to rob property, he shall still be convicted of robbery.

Killing people for money is treated as killing people, which means not seeking money on the spot;

If the perpetrator finds that there is still property after killing for the purpose of killing, he should steal it and be punished with several crimes of murder and theft;

Those who take women's property in person after coercion shall be punished for robbery and coercion;

Whoever takes away his wallet while others are not paying attention shall be punished with coercion and theft.

The difference between robbery and extortion: the violent means in robbery must be enough to restrain each other's resistance, but it is not required to actually restrain each other's resistance. Therefore, obtaining other people's property with minor violence that is not enough to restrain the other party's resistance should be recognized as extortion.

1: B often invites a's wife to play mahjong, which leads to a disagreement between a and his wife. One day, Party B invited Party A's wife to Party B's house to play mahjong. After learning about this, Party A came to Party B's house, overturned the mahjong table, slapped Party B several times, and said to Party B, "You have destroyed my family, and you must pay 5000 yuan."

A: The crime of extortion.

Forcibly robbing property refers to transferring property to yourself or a third person against the will of the other party. It usually includes four situations: first, the actor directly seals up and takes away the property possessed by the victim on the spot; The second is to force the victim to deliver (dispose of) property on the spot; The third is to carry out coercive acts such as violence and coercion, and take away their property on the spot while the other party is not paying attention; Fourth, when using violence, coercion and other acts, the victim fled out of fear, leaving his belongings at the scene, and the perpetrator took them away on the spot. It should be noted that on the one hand, the understanding of "on the spot" should not be too narrow. Although violence, coercion and other methods last for a certain period of time and do not belong to the same place, if the behavior as a whole is uninterrupted, it should also be considered as obtaining property on the spot.

Example 2: A violently forced B to deliver the property, but B was penniless. A ordered B to take the property from home immediately, or go to B's house to get the property together. Answer: robbery.

After the violence, the perpetrator found that the victim was penniless, and then asked the victim to deliver the property in the future. In principle, it should be recognized as robbery (attempted) and extortion, and several crimes should be punished together. On the other hand, the understanding of "on the spot" cannot be too absolute. If the perpetrator's violence on the spot is enough to restrain the other party's resistance and make the other party deliver the property afterwards, it should also be considered as robbery.

Example 3: A soldier met four children aged from 10 to 12 playing in the village, and asked them for money. All four children said they had no money. A find out one of the children B, tie him up, hang him upside down, whip him, and burn him with a cigarette butt, causing minor injuries. Then tell B and the other three children to pay at the designated place the next day, otherwise the consequences will be more serious than B, and each child will pay 20 yuan 30 yuan the next day. Answer: robbery.

The difference between robbery and robbery;

Violence in robbery must be directed at people, not at things. This is the key difference between robbery and robbery.

The difference between robbery and kidnapping;

In the crime of kidnapping, the only way to ask for property is to ask for property from a third person other than the kidnapped person, otherwise the kidnapped person cannot be regarded as a "hostage".

Second, robbery.

Obtaining property by speed and agility is not by force, such as grabbing things from the basket and women's necklaces and earrings in practice. At this time, although it hurts women's health, it is still robbery.

Whoever uses violence on the spot in the process of robbery is regarded as robbery. For example, if you can't take it away, you can kick it and play it. The crime of robbery is regarded as the crime of carrying a murder weapon (the murder weapon of the criminal is required to have the intention of committing a crime and be in a state of being used at any time, not included in the luggage). Carrying a murder weapon is also an act of unity of subject and object. That is, the actor is required to have a sense of being available at any time. On the other hand, if the perpetrator does not carry something for the purpose of breaking the law and committing crimes, and he has no consciousness of preparing to use it when robbing, the second paragraph of Article 267 of the Criminal Law should not be applied.

Third, the crime of gathering people to plunder.

This is a gang crime.

4. Article 274 Crime of extortion.

Blackmail public or private property by threats (violence) or intimidation (privacy, defects). It is a crime to ask for a large amount.

The difference between robbery and the latter is that the violence is on the spot, and the money is taken on the spot (two on the spot). The former's threat of violence is a threat but not made, so only one of this crime can be taken on the spot.

In some cases, things happen for a reason, such as screwing someone else's sister and then dumping her, beating her up and forcing her to write an iou, which is regarded as extortion and indefinite robbery;

If he is forced to write an iou when he is robbed, he will still be convicted of robbery, and there is no need to be convicted of extortion.

Kidnapping is a combination of illegal detention and extortion, so the difference lies in whether there is hostage-taking behavior. If there is a crime of kidnapping, there is no such crime. Kidnapping hostages is regarded as accomplished, and extortion to obtain property is regarded as accomplished.

The perpetrator fabricated the facts of kidnapping and arson, extorted money and decided. Means of implementation, constitute the crime of kidnapping or arson (+extortion).

V. Article 264 Theft (theft in judicial interpretation, excluding the calculation of stolen goods)

Pay attention to conviction: attempted theft, serious circumstances will be sentenced; The amount of theft is not large, and multiple thefts can constitute this crime. (more than three times a year, even if the cumulative amount per time is not large enough); The amount of theft is relatively large, but in any of the following circumstances, it may not be punished, such as occasional offense. The number of invoices exceeds 25.

The problem of attempted theft

According to the theory of out of control, the victim lost control of his property.

Example: A and B stole a textile factory one night, threw seven or eight pieces of cloth outside the fence, and then went out to carry them away. As a result, the cloth was taken away by a passing taxi driver, so both parties committed theft.

Car theft: (1) Car theft is also included in the theft amount; (2) Whoever steals a car and specifically commits other crimes shall be punished for theft and other crimes; (3) Stealing a car and returning it to its original place after committing other crimes without losing it is not regarded as theft; (4) Whoever steals a car and throws it away casually is regarded as theft.

Whoever steals or damages public or private property shall be given a heavier punishment for theft, and if other crimes are constituted, one of them shall be given a heavier punishment. Attention should be paid to two situations in which theft can be sentenced to death (theft of financial institutions; Stealing precious cultural relics. )。

Whoever steals a credit card and uses it shall be convicted and punished in accordance with the provisions of Article 264 of this Law.

It should also be noted that item 5 of article 12 of the judicial interpretation stipulates that if a crime is constituted by intentionally destroying public or private property, theft and other crimes shall be punished together, and item 6 stipulates that those who steal commercial secrets such as technological achievements shall be convicted and punished in accordance with article 2 19 of the Criminal Law. Stealing a motor vehicle many times for the purpose of practicing and entertaining. Whoever loses a motor vehicle shall be convicted and punished for theft; If a traffic accident occurs in the process of stealing a motor vehicle, which constitutes a crime and other crimes, it shall be punished with the crime of traffic accident and several other crimes; Whoever steals a motor vehicle and causes damage to the vehicle shall be convicted and punished in accordance with the provisions of Article 275 of the Criminal Law; Occasionally stealing a motor vehicle, if the circumstances are minor, may not be regarded as a crime.

Whoever steals commercial secrets such as technological achievements shall be convicted and punished in accordance with Article 2 19 of the Criminal Law.

Some special theft cases.

"Using a stolen credit card after swiping it" belongs to the case of theft stipulated in the third paragraph of Article 196 of the Criminal Law.

"Stealing invoices that can be used to defraud export tax rebates" is a magic weapon to be punished as theft according to Article 2 10 of the Criminal Law.

"Postal workers open mail privately and steal property" is a magic weapon of theft stipulated in the second paragraph of Article 253 of the Criminal Law.

Note: "Company personnel take advantage of their position to steal the property of their own unit", although it is also a kind of theft in terms of behavior, it is not regarded as theft, but the crime of embezzlement by taking advantage of their position as stipulated in Article 27 1 of the Criminal Law.

Determination and calculation of the amount of theft

According to the Court's Interpretation on Several Issues Concerning the Specific Application of Laws to Theft, in the case of theft in * * *, the amount cannot be divided among the participants, but the criminals are responsible for the amount of theft in * * *. Understanding: First of all, we should pay attention to the integrity of * * * and criminal behavior, and all participants should be responsible for the overall behavior, instead of dividing stolen goods into crimes. Second, the criminal act committed by a single actor in a crime should be his own responsibility.

The difference between theft and fraud

The key difference between the crime of fraud and theft lies in whether the deceived person wrongly disposes (delivers) the property based on his knowledge. As long as the perpetrator obtains property after committing fraud, the crime of fraud is not established, because thieves may also commit fraud. There are indirect principal offenders in theft, and it is entirely possible that people who have no authority or status to dispose of property can obtain property by deception. For example, a laundry manager found a suit hanging in the corridor of B's house, so he lied to our temporary worker C, saying, "B wants to wash the suit, but has no time to send it; Go to B's house and take the suit to the corridor to dry. " C believed it and took the lawsuit to A, who took it for himself (hereinafter referred to as the lawsuit). C is obviously cheated, but he is just a tool for stealing and does not have the authority or status to dispose of B's litigation right to A. Therefore, A commits theft (indirect principal offender). Disposition refers to the transfer of property to the actor or a third party for possession, that is, the actor or the third party actually controls the property. As for whether the deceived person has been transferred to the actor or a third person for possession, on the one hand, it should be judged according to the general concept of society, that is, under the circumstances at that time, whether the general concept of society thinks that the deceived person has transferred the property to the actor or a third person for de facto domination or control; On the other hand, whether the deceived person has the intention to transfer the property to the actor or a third person for domination or control. For example, A pretends to buy a suit in a commodity, and the salesman B asks him to try it on. After putting on the suit, A claimed to look in the mirror, and when B received other customers, A took the opportunity to slip away. Be convicted of theft. Because although B was cheated, he didn't transfer his suit to A because he was cheated. If A puts on a suit, he says to B, "I need my wife's permission to buy a suit. I put my ID card here. If my wife agrees, I will pay tomorrow. " If my wife doesn't agree, I will return that suit tomorrow. "B agreed that A would wear this suit to go home, but A used a fake ID card and didn't send money or clothes to B at all the next day. Then, A's behavior constitutes fraud. Because B allows A to wear the suit home, it has actually transferred the suit to A's domination and control, which is caused by being cheated, so it conforms to the characteristics of fraud.

The difference between theft and misappropriation of public funds

The key to distinguish between theft and embezzlement lies in judging whether the property as the object of crime comes from possession and who owns it. The actor cannot steal the property he actually owns, but can only commit the crime of misappropriating the property he actually owns. The crime of embezzlement is characterized by illegally transforming the property it occupies into ownership. Therefore, as long as some possession is likely to be punished, it belongs to the custody of embezzlement, that is, possession. Objectively speaking, possession refers to de facto domination (not the same concept as possession for the purpose of illegal possession), which not only includes domination within the scope of physical domination, but also includes that the dominator can infer the state of property from social concepts. (1) As long as it is in the fact field of others, it belongs to others even if they don't actually hold or monitor it. For example, the property in other people's houses and cars belongs to other people's property even if they completely forget its existence. (2) although it is outside the domain dominated by others, it can be inferred that it is dominated by others, and it also belongs to the property occupied by others. For example, a bicycle parked in front of someone else's house should be considered as someone else's even if it is not locked. For another example, any property hanging on other people's doors and windows belongs to others. (3) The pet kept by the owner has the ability or habit of returning to the original place of residence, and no matter where it is, it should be regarded as the owner's possession. (4) Even if the original owner loses possession, when the property is transferred to the manager of the building or a third person, it should also be recognized as the property occupied by others. For example, the property left by passengers in taxis belongs to the taxi driver. Although it belongs to forgetting things relative to passengers, it is the property owned by taxi drivers. Therefore, the act of a third party taking property from a taxi should be regarded as theft. (5) several people * * * jointly manage a property, and when there is a master-slave relationship, do subordinates also possess the property? For example, the owner and clerk of a private store manage the property of the store. Does the clerk own the property of the shop? It should be taken into account that in this case, the possession in criminal law usually belongs to the superior (shopkeeper), not to the subordinate (clerk). Even if the subordinates actually hold or control the property, they are only simple monitors or assistants. Therefore, if subordinates take property for illegal purposes, it is theft. However, if the superior and the subordinate have a high degree of trust, when giving the subordinate a certain degree of punishment, they should admit the possession of the subordinate, and the subordinate's unauthorized disposal of property does not constitute theft, but it constitutes embezzlement or duty embezzlement.

6. Article 266 Crime of fraud

1. structure: five links: deception, the victim falls into a wrong understanding, makes property disposal, the offender benefits, and the victim suffers.

For example, Zhang San asked his friend Li Si to borrow money to do business. Li Si knew that Zhang San was incapable of doing business and had no money to pay back, so he borrowed it. At this time, it does not constitute fraud, because Li Si did not fall into misunderstanding.

Pay attention to the difference between theft and theft. (Note that stealing can also be deceptive. Fraud requires the victim to take substantial disciplinary action. For example, the actor pretends that customers go to the store to try on expensive clothes, and the actor tries to escape, steal and try on these clothes. (If the perpetrator claims that there is no money in the credit card and there is something urgent, it is fraud. ); When choosing jewelry, criminals bring fake bags, which should be theft, not punishment; Stealing from the factory, the guard found out, claiming that it was pulled by the director.

2. Identification: Special fraudulent acts as otherwise provided by laws shall be identified in priority according to the principle of concurrence of laws and regulations.

For example, the actor forged a deposit certificate (the crime of forging financial tickets) and took the deposit certificate to the credit union to sign a loan (the crime of financial ticket fraud, the crime of loan fraud, not signing a contract? -Crime of contract fraud), spend 1 million yuan: the crime of forging and using financial vouchers is an implicated act, and one act commits several crimes, namely, the crime of financial voucher fraud, the crime of payment fraud and the crime of contract fraud, and is punished from a felony: the crime of financial voucher fraud.

In some cases, theft and fraud are intertwined.

Examples 1: A and B draw the properties of a construction site. A cheated the staff on duty at the construction site, and then B looted the property at the construction site. A and b constitute theft. Exodus 2: A man used iron pieces instead of coins in a vending machine to get property. In the long run, a person commits the crime of stealing.

3. The difference between extortion and extortion

Fraud is a fictional scam, which makes others fall into mistakes, do not know the truth, and voluntarily deliver property on the surface;

Extortion is to make others feel scared and extort property (there may be elements of deception, but the essence is threatening to ask for money).

For example, the son lied that he was kidnapped, cut off his finger and asked his father to take money to redeem it. He was convicted of extortion, not fraud.

3. The difference between fraud and industrial and commercial fraud (false advertising)

If it is different from the crime of producing and selling fake and inferior commodities, as long as there is a little transaction content, it belongs to a specific crime, but if there is no transaction content, it belongs to the crime of fraud.

For example, a man in Wuhan claimed that he could turn water into oil, sold several tons and made millions. The court convicted him of producing and selling fake and inferior commodities.

Seven. crime of embezzlement

Especially the things stored, forgotten and buried, they refused to return them.

Features: legal possession, illegal appropriation. This crime only constitutes this crime after it constitutes legal possession.

The crime of embezzlement is a kind of legal possession and illegal possession. The intentional crime of embezzlement occurs after the legal possession, and the legal possession of goods is the premise of this crime.

The crime of theft and fraud refers to the fact that the thoughts and actions of crime are generated before holding other people's property, and they formally gain control over other people's property through means such as theft and fraud.

Note that forgetting things is not equal to the lost property, which can not cause this crime, but only constitutes unjust enrichment.

For example:

Riding a bicycle, people enter the house, the bag is still in the frame, and taking the bag constitutes theft;

Take a taxi to pick up people, go out to see if they don't come down, and the driver drives away when he sees the bag in the car, which constitutes theft; If people just get off the bus and drive away, they can't catch up, which constitutes robbery;

Driving to deliver goods, the owner pledges the goods, the driver shows the owner whether the tires are inflated, the owner gets off, and the driver drives away, which constitutes robbery.

If you drive to do business in order to cheat goods, you will drive away when you get the goods, which is the crime of fraud.

A certain B was afraid that his notebook would be stolen because of a business trip, so he gave it to his neighbor B for safekeeping. However, some B sold his notebook, and when some A came back, some B told some A that his home had been stolen and some A's notebook had also been stolen. A constitutes a crime of embezzlement.

Crime limit, the amount is relatively large, more than 5000 yuan; And refused to return it;

Typical confession.

Article 27 1, article 1, crime of embezzlement by post.

And the particularity that the personnel of companies, enterprises or other units are different from the crime of embezzlement. The crime of duty embezzlement is based on the premise that the subject has some management function, and the lowest line of the subject is the custodian. If only ordinary workers can only cause theft. Different from corruption, it must be an official (including those appointed to manage state-owned property). It is the difference between commercial occupation and official occupation. Article 272 Crime of misappropriating funds

It is a legal patch that can be made after the emergence of private enterprises and foreign companies.

Article 273 The crime of misappropriating special funds refers to disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief funds and materials.

Misappropriation of public funds is different from the former, that is, misappropriation for non-personal purposes, which violates the provisions of earmarking. If it is used for personal purposes, it constitutes the crime of misappropriation of public funds. Crime of misappropriating specific funds and materials: public use

Eight, intentional destruction of property and destruction of production and business operations.

The difference between them: both are destructive crimes, and the object of the crime of destroying production and operation is that the production and operation activities of others (destroying specific property-production equipment) are affected.

Require a large amount and serious circumstances, and pay attention to the distinction between crime and non-crime.

The difference between crimes endangering public safety (such as destroying means of transport and power facilities to see if it is enough to endanger public safety). Acts that endanger public safety will not be punished just for this crime.