Criteria for filing intermediary fraud

Fraud is divided into illegal fraud, general fraud, contract fraud that disrupts market order, and financial fraud (fund-raising fraud, loan fraud, bill fraud, financial voucher fraud, letter of credit fraud, credit card fraud, securities fraud, and insurance fraud). In addition, the staff of state organs who are cheated because of signing and performing contracts are not only guilty of dereliction of duty. Compared with the "active" fraud crime mentioned above, this crime belongs to the "passive" fraud crime, which we will also briefly elaborate. So, what is fraud? According to the provisions of China's criminal law, the crime of fraud refers to the behavior of the perpetrator to defraud a large amount of public and private property by fabricating facts or concealing the truth for the purpose of illegal possession, which is a criminal act. The specific theory of this crime will not be described. Below, this article only talks about the latest simple filing standards and basic punishment provisions of all kinds of fraud (not discussing special circumstances, such as * * * offense, implicated offense in several crimes, imaginative joinder offense, etc. ).

First, general fraud violations. According to Article 49 of China's Law on Public Security Administration Punishment, those who steal, cheat, plunder, snatch, extort or intentionally damage public or private property shall be detained for more than five days and less than ten days, and may be fined up to 500 yuan; If the circumstances are serious, he shall be detained for more than 10 and less than 15, and may also be fined less than 1000 yuan. The provisions of this article are penalties for ordinary fraud, not for criminal acts. If the crime standard (amount or plot standard) is not met, then the lighter standard below the crime standard is illegal fraud, and the public security organ should accept and register it in time. If it is considered to be a violation of public security management, it shall be investigated and dealt with immediately; If it is considered that it is not a violation of public security administration, it shall inform the informant and the complainant and explain the reasons. Such cases of public security punishment shall be under the jurisdiction of the public security organ at or above the county level where the illegal act occurred.

Second, general fraud. This is the most common crime of fraud. Take the standard of Hubei Province as an example. Under normal circumstances, whoever swindles a large amount of public or private property (the standard in Hubei Province is more than 5,000 yuan, or refers to cheating more than 3,000 yuan and has one of the circumstances of "heavier punishment") shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or control, and shall also be fined; If the amount is huge (the standard in Hubei is more than 50,000 yuan), or there are other serious circumstances (that is, defrauding more than 30,000 yuan, which is one of the circumstances of "heavier punishment"), 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 (the standard in Hubei is more than 500,000 yuan), or if there are other particularly serious circumstances (that is, defrauding more than 300,000 yuan is a "heavier punishment"), it shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment. . . .

The above "severe punishment" refers to:

(1) Sending short messages, making phone calls or publishing false information through the Internet, radio and television, newspapers and magazines, etc., defrauding an unspecified majority;

(2) defrauding disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical funds and materials;

(three) fraud in the name of disaster relief fund-raising;

(four) defrauding the disabled, the elderly or the disabled;

(5) Causing the victim to commit suicide, mental disorder or other serious consequences.

Under special circumstances, those who meet the relevant conditions will be exempted from punishment, and the crime will not be dealt with. The attempted fraud will not be described here.

Third, the crime of contract fraud that disturbs the market order. According to Article 224 of China's Criminal Law, the crime of contract fraud refers to the act of defrauding the other party's property in the process of signing and performing a contract for the purpose of illegal possession. If the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not more than three years. . . . 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. . . . 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. The main manifestations are: (1) signing a contract with a fictional unit or using someone else's name; (2) Mortgaging with forged, altered or invalid bills or other false property rights certificates; (three) to perform a small contract or part of the contract first, to deceive the other party to continue to sign and perform the contract, and to have no actual performance ability; (4) After receiving the payment for goods, advance payment or secured property paid by the other party; (5) defrauding the other party's property by other means. Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Standards for Criminal Cases under the Jurisdiction of Public Security Organs (II) Article 77 stipulates that anyone who, for the purpose of illegal possession, defrauds the other party of property in the process of signing and performing a contract, and the amount is more than 20,000 yuan, shall file a case for prosecution. On April 8, 2006, the Supreme People's Procuratorate and the Ministry of Public Security issued the Provisions on the Prosecution Standards of Economic Crime Cases (Gong Fa 1 1), which has been abolished. Therefore, the standard of "large amount" of contract fraud should be 20 thousand yuan as the standard of filing a case. As for the criteria of "huge amount", "extremely huge amount" and "other serious and especially serious circumstances", there is no clear stipulation at present. Only some provincial high courts (such as Guangdong Province) have formulated some local standards according to the previous old judicial interpretations, while the Hubei Provincial High Court has not issued specific local standards, but it still cannot "keep pace with the times". Therefore, it is suggested that the Supreme People's Court issue corresponding judicial interpretations in time, unify relevant standards, and avoid excessive sentencing.

4. Crime of financial fraud.

(1) Crime of fund-raising fraud. Article 192 of the Criminal Law stipulates that anyone who illegally raises funds by fraud for the purpose of illegal possession, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; 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 not less than 50,000 yuan but not more than 500,000 yuan or confiscated property. Note that this crime carries the death penalty. Article 199 stipulates that if the amount is especially huge, causing particularly heavy losses to the interests of the state and the people, he shall be sentenced to life imprisonment or death, and his property shall be confiscated. Note that other frauds abolished the death penalty, but this crime retains the death penalty. Article 5 of the judicial interpretation of the crime of fund-raising fraud stipulates that if an individual commits fund-raising fraud and the amount is more than 654.38+10,000 yuan, it shall be deemed as "a large amount"; If the amount is more than 300,000 yuan, it shall be deemed as "a huge amount"; If the amount is more than 6,543,800 yuan, it shall be deemed as "extremely huge". If the unit implements fund-raising fraud and the amount is more than 500,000 yuan, it shall be deemed as "a large amount"; If the amount is more than 6.5438+0.5 million yuan, it shall be deemed as "a huge amount"; If the amount is more than 5 million yuan, it should be considered as "extremely huge" (note: this is the latest regulation). The amount of fund-raising fraud is calculated by the amount actually defrauded by the perpetrator, and the amount returned before the incident is deducted. Advertising fees, agency fees, handling fees, kickbacks paid by the actor for fund-raising fraud activities, or expenses for bribery, gifts, etc. shall not be deducted. The interest paid by the actor for fund-raising fraud shall be included in the fraud amount, except that the principal can not be deducted.

(2) the crime of loan fraud. For the purpose of illegal possession, it refers to the act of fabricating false reasons such as introducing funds and projects, using false economic contracts, false documents, false certificates of property rights as guarantees, repeatedly guaranteeing beyond the value of collateral, or defrauding banks or other financial institutions of a large amount of loans by other means. Let me briefly talk about the filing standards and sentencing regulations. If the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not more than five years. . . . If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years. . . . If the amount is especially huge or there are especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment. . . . Note that the unit cannot constitute this crime. According to Article 50 of the Standard for Prosecution of Criminal Cases, the starting point of prosecution is "a large amount" of 20,000 yuan (the judicial interpretation of fraud in 1996 is 1 10,000 yuan, which will be abolished). For the standard of "huge amount", if the prosecution standard 2 is unclear, according to the judicial interpretation of 1996, it is more than 50,000 yuan; "The amount is extremely huge" is more than 200,000 yuan. However, the new judicial interpretation of fraud in 20 1 1 has raised the standard of filing fraud. At present, in the absence of clear regulations, personally, it is more reasonable to sentence according to the latest standard of fraud amount, so as to keep pace with the times. So "huge amount" means more than 30 thousand yuan and less than 100 thousand yuan, and "extremely huge amount" means more than 500 thousand yuan. "Other serious circumstances" refers to: (1) paying bribes to the staff of banks or financial institutions for the purpose of defrauding loans, and the amount is relatively large; (two) the loan is squandered, or the loan is used for illegal activities, so that the loan cannot be repaid when it expires; (3) concealing the whereabouts of the loan and refusing to repay it after the loan expires; (four) to apply for a loan by providing false guarantee, and refuse to repay it after the expiration of the loan period; (5) applying for a loan in the name of another person and refusing to repay it after the loan expires. "Other particularly serious circumstances" refers to (1) paying bribes to the staff of banks or financial institutions in order to defraud loans, and the amount is huge; (2) Escaping with fund-raising funds; (three) the use of loans for criminal activities.

(3) Bill fraud. Article 194 of China's criminal law stipulates that anyone who commits financial bill fraud in any of the following circumstances, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; 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 not less than 50,000 yuan but not more than 500,000 yuan, or his property shall be confiscated: (1) knowingly using forged or altered bills of exchange, promissory notes or cheques; (2) knowingly using bills of exchange, promissory notes or checks that are invalid; (3) fraudulently using other people's bills of exchange, promissory notes or checks. (four) issuing a bad check or a check that is inconsistent with its reserved seal to defraud property; (5) The drawer of a bill of exchange or a promissory note issues a bill of exchange or a promissory note without capital guarantee, or makes false records when issuing a bill of exchange or a promissory note to defraud property. "Knowing" is an important element of this crime. So subjectively, it must be intentional. The following acts do not constitute a crime: (1) knowingly use an invalid bill; (two) fraudulent use of other people's bills or their own invalid bills; (3) Issuing a bad check or an invalid check by mistake; (4) recording promissory notes or bills of exchange due to mistakes. Regarding this crime, according to the provisions of relevant judicial interpretations, "a large amount" means that the amount of financial bill fraud committed by individuals is more than 6.5438+0 million yuan (modified here), and the amount of financial bill fraud committed by units is more than 6.5438+0 million yuan; "Huge amount" means that the amount of bill fraud committed by individuals is more than 50,000 yuan, and the amount of bill fraud committed by units is more than 300,000 yuan; "The amount is extremely huge" means that the amount of bill fraud committed by individuals is above 1 10,000 yuan, and the amount of bill fraud committed by units is above 1 10,000 yuan.

(4) The crime of financial voucher fraud. Whoever uses forged or altered bank settlement vouchers such as entrusted collection vouchers, remittance vouchers and bank deposit vouchers shall be punished in accordance with the sentencing provisions for bill fraud. The standard of "large amount, huge amount and especially huge" is the same as the crime of bill fraud.

(5) the crime of letter of credit fraud. For the purpose of illegal possession, the actor violates the relevant regulations, adopts the method of fictional facts or concealing the truth, and uses the letter of credit to defraud public and private property. (1) Using forged or altered letters of credit or accompanying documents and documents; (2) Using an invalid letter of credit; (3) defrauding a letter of credit; (4) fraudulent activities of letters of credit by other means. Note: As long as one of the above acts constitutes the crime of letter of credit fraud, there is no amount standard. Those who meet the above circumstances shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan. Huge amount (refers to the amount of personal letter of credit fraud of more than 6,543,800 yuan; If the unit is more than 500,000 yuan) or there are other serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge (more than 500,000 yuan for an individual and more than 2.5 million yuan for a unit) or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan, or his property shall be confiscated.

(6) credit card fraud. People who use credit cards often ask such questions. Article 196 of China's Criminal Law stipulates that "in any of the following circumstances, whoever cheats a large amount of credit cards shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan, or his property shall be confiscated: (1) using a forged credit card or using a credit card fraudulently obtained with false identification; (2) Using an invalid credit card; (3) Fraudulent use of another person's credit card; (4) Malicious overdraft. " The first three acts of credit card fraud, the amount of which is more than 5 thousand yuan, belong to "a large amount"; More than 50,000 yuan is a "huge amount"; More than 200,000 yuan belongs to "the amount is extremely huge". The fourth act, that is, malicious overdraft, is a "large amount" if the amount is more than 1 10,000 yuan but less than110,000 yuan (note that it was more than 5,000 yuan before); Those with more than 100,000 yuan but less than 1 million yuan and those with more than 1 million yuan belong to "huge amount" and "extremely huge amount" respectively. (Note that the standards here have also been revised). "Malicious overdraft" refers to the behavior that the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and has not returned it for more than three months after repeated collection by the issuing bank. Malicious overdraft may be given a lighter punishment after the public security organ files a case but before the court's judgment is announced. If the circumstances are minor, the punishment may be exempted. Malicious overdraft, the amount of which is more than 1 10,000 yuan but less than110,000 yuan, has been fully repaid before the public security organ files a case. If the circumstances are obviously minor, criminal responsibility may not be investigated according to law. The amount of malicious overdraft refers to the amount that the cardholder refuses to return or has not returned under the above conditions, excluding the compound interest, late fees, handling fees and other fees charged by the issuing bank. In addition, it should be noted that those who steal credit cards and use them should be convicted and punished for theft.

(7) Securities fraud. It refers to fraudulent activities with forged or altered treasury bills or other securities issued by the state for the purpose of illegal possession, and the amount is relatively large. Article 197 of China's Criminal Law stipulates that whoever commits the above-mentioned acts in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; 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 not less than 50,000 yuan but not more than 500,000 yuan or confiscated property. The above-mentioned "large amount", according to the provisions of the new judicial interpretation, is more than 1 10,000 yuan, and should be filed for prosecution (previously it was more than 5,000 yuan, which was automatically abolished). The standards of "huge amount" and "extremely huge" are not clearly defined. According to the provisions of the judicial document "Minutes of Court Hearing Financial Cases", we can refer to the standard of general fraud crime. At present, the latest fraud standard implemented by 20 1 1 is "a huge amount" of more than 30,000 yuan10,000 yuan; "The amount is extremely huge" is more than 500,000 yuan.

(8) Crime of insurance fraud. It refers to the behavior of the applicant, the insured or the beneficiary who, in violation of the provisions of the insurance law, fabricates facts or conceals the truth for the purpose of illegal possession to defraud insurance money. Any employee of an insurance company who makes up an insurance accident by taking advantage of his position and defrauds the insurance money into personal possession shall be punished as embezzlement or corruption. Article 198 of China's Criminal Law stipulates that whoever commits insurance fraud in any of the following circumstances, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 10,000 yuan but not more than 100,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan or his property shall be confiscated: (1) The applicant intentionally fabricates the subject matter of insurance to defraud the insurance money; (2) The applicant, the insured or the beneficiary fabricates false reasons or exaggerates the loss of the insured accident to defraud the insurance money. (3) The applicant, the insured or the beneficiary fabricates an insurance accident that has never happened to defraud the insurance money; (4) The applicant or the insured intentionally causes an insurance accident that causes property losses and defrauds the insurance money; (5) The applicant or beneficiary intentionally causes the death, disability or illness of the insured to defraud the insurance money. Whoever commits the acts listed in Items 4 and 5 of the preceding paragraph and constitutes other crimes shall be punished in accordance with the provisions on combined punishment for several crimes. If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the above provisions. If an appraiser, witness or property appraiser of an insurance accident intentionally provides false documents to provide conditions for others to cheat, he shall be punished as * * * insurance fraud. According to the relevant judicial interpretation, the above-mentioned "large amount" means that the amount of personal insurance fraud is more than 6,543,800 yuan, and the unit is more than 50,000 yuan; "Huge amount" means that the amount of personal insurance fraud is more than 50,000 yuan and the unit is more than 250,000 yuan; "The amount is extremely huge" means that the amount of personal insurance fraud is more than 200,000 yuan, and the unit is more than 6,543,800 yuan.

Five, the crime of dereliction of duty refers to the staff of state organs in the signing and performance of the contract dereliction of duty was cheated. This crime refers to the behavior that the staff of state organs are cheated because of their serious irresponsibility in the process of signing and performing contracts, resulting in great losses to the national interests. This is a crime of negligence. If a contract is intentionally signed, causing heavy losses, it constitutes other crimes. According to Article 15 of the Standard Provisions on Filing Cases Directly Accepted by People's Procuratorates, a case should be filed if it is suspected of one of the following circumstances: 1, resulting in direct economic losses of more than 300,000 yuan; 2. Other circumstances that cause great losses to the national interests. Article 406 of China's Criminal Law stipulates that any functionary of a state organ who is defrauded due to serious irresponsibility in the process of signing and performing a contract, thus causing heavy losses to the national interests, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever causes particularly heavy losses to the interests of the state shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

Finally, add two charges of impersonating related identity fraud. That is, swindling and pretending to be a soldier.

The crime of swindling and cheating refers to the act of pretending to be a staff member of a state organ to cheat and seek illegal interests (such as defrauding love, position, honor, etc.). , including petty bourgeoisie), infringe on the prestige and reputation of state organs and disrupt public order. Should be sentenced to fixed-term imprisonment of not more than three years, criminal detention, control or deprivation of political rights in accordance with the provisions of Article 279 of the Criminal Law of our country; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. This crime belongs to behavioral crime. As long as the actor who has reached the capacity of criminal responsibility pretends to be a staff member of a state organ and swindles, in principle, he should be treated as a crime and placed on file for investigation. It is worth noting that the amount of property defrauded by this crime is huge, which constitutes a competition with the crime of fraud, and a felony punishment should be chosen. Whoever impersonates the people's police to swindle and cheat shall be convicted of swindling and cheating and given a heavier punishment. "Serious circumstances" in the sentencing circumstances of this crime generally refers to the following situations: (1) repeatedly swindling and cheating; The illegal income is huge; Causing serious consequences such as deception, mental disorder and suicide. In addition, if impersonating a soldier to cheat constitutes a crime of impersonating a soldier, the punishment standard is the same. The "serious circumstances" in pretending to be a soldier's bluff generally refers to the situation that posing as a soldier in wartime causes disputes between the military and the government, between the military and civilians, between the military and police, causes serious economic losses or bad social impact, damages the reputation of the army, or causes other serious consequences.