Understanding of judicial interpretation of fraud

The full text of the latest judicial interpretation of the crime of fraud was published by the Supreme People's Procuratorate and Supreme Court on March 1 1. Now, the latest judicial interpretation of fraud crimes is introduced in full: the Supreme People's Court and the Supreme People's Procuratorate's interpretations on some issues concerning the specific application of laws in handling fraud criminal cases were announced by the Supreme People's Procuratorate at the 1 512 meeting of the the Supreme People's Court Judicial Committee. 20 10 1 1 was adopted at the 49th meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on1October 24th, and is hereby promulgated, and shall come into force as of April 8th, 20 165438. 20 1 1 mar 1 day, in order to punish fraudulent criminal activities according to law and protect the ownership of public and private property, according to the relevant provisions of the criminal law and the criminal procedure law, combined with the needs of judicial practice, some issues concerning the specific application of law in handling criminal cases of fraud are explained as follows: Article 1 Where the value of fraudulent public and private property is more than 3,000 yuan but less than 10,000 yuan, it is more than 30,000 yuan/kloc-. The Higher People's Courts and People's Procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government may, in light of the economic and social development of the region, jointly study and determine the specific amount standards to be implemented in the region within the amount specified in the preceding paragraph, and report them to the Supreme People's Court and the Supreme People's Procuratorate for the record. Article 2 Whoever cheats public or private property to the amount specified in Article 1 of this Interpretation may be given a heavier punishment as appropriate in accordance with the provisions of Article 266 of the Criminal Law: (1) Whoever cheats an unspecified majority by sending short messages, making phone calls or publishing false information through the Internet, radio and television, newspapers and magazines, etc. ; (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. If the amount of fraud is close to the standards of "huge amount" and "extremely huge amount" as stipulated in Article 1 of this Interpretation, and it falls into one of the circumstances as stipulated in the preceding paragraph or belongs to the ringleader of a fraud group, it shall be deemed as "other serious circumstances" and "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law respectively. Article 3 Although swindling public or private property meets the standard of "relatively large amount" as stipulated in Article 1 of this Interpretation, in any of the following circumstances, if the perpetrator pleads guilty or repents, he may not be prosecuted or be exempted from criminal punishment according to the provisions of Article 37 of the Criminal Law and Article 142 of the Criminal Procedure Law: (1) There are circumstances of lenient punishment according to law; (2) Before the verdict is pronounced in the first instance, all the stolen money and compensation money have been returned; (three) did not participate in the distribution of stolen goods or less stolen goods and not the principal; (4) the victim understands; (5) Other circumstances are minor and harmless. Article 4 Whoever defrauds the property of a close relative and the close relative knows it may generally not be treated as a crime. If it is really necessary to pursue criminal responsibility by defrauding the property of close relatives, the specific treatment should also be lenient as appropriate. Article 5 Anyone who attempts to defraud, with a huge amount or other serious circumstances, shall be convicted and punished. Using telecommunications technologies such as sending text messages, making phone calls and the Internet to defraud an unspecified majority, and the amount of fraud is difficult to verify. However, in any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in Article 266 of the Criminal Law, and convicted and punished for fraud (attempted): (1) Sending more than 5,000 fraudulent information; (2) Making fraudulent phone calls for more than 500 times; (3) The fraudulent means are bad and the harm is serious. If the number of acts specified in the preceding paragraph reaches more than ten times the standards specified in Items (1) and (2) of the preceding paragraph, or if the fraudulent means are particularly bad and the harm is particularly serious, it shall be deemed as "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for fraud (attempted). Article 6 If the accomplished fraud and attempted fraud reach different sentencing ranges respectively, they shall be punished according to the provisions of heavier punishment; Those who reach the same sentencing range shall be punished as fraud. Article 7 Whoever knowingly provides credit cards, mobile phone cards, communication tools, communication transmission channels, network technical support, fee settlement and other assistance shall be punished as * * *. Article 8 Whoever impersonates a functionary of a state organ to commit fraud and at the same time constitutes a crime of fraud shall be convicted and punished in accordance with the provisions of heavier punishment. Article 9 If the ownership of fraudulent property and its fruits that have been sealed up, detained or frozen after the crime is clear, it shall be returned to the victim; If the ownership is unclear, the victim may be returned according to the proportion of the defrauded money and goods to the total amount of property and fruits seized, detained or frozen in this case, but the compensation already returned shall be deducted. Article 10 If the perpetrator has used the fraudulent property to pay off debts or transferred it to others, it shall be recovered according to law under any of the following circumstances: (1) The other party knows that it is fraudulent property; (2) The other party obtains fraudulent property for free; (3) The other party obtains fraudulent property at a price significantly lower than the market price; (4) The fraudulent property obtained by the other party originated from illegal debts or illegal and criminal activities. If another person obtains fraudulent property in good faith, it will not be recovered. Article 11 If the previously issued judicial interpretation is inconsistent with this interpretation, this interpretation shall prevail.

Legal objectivity:

[Criminal Law Provisions] Article 193 Whoever defrauds a bank or other financial institution of loans for the purpose of illegal possession under 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 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) fabricating false reasons such as introducing funds and projects; (two) the use of false economic contracts; (3) using false documents; (four) the use of false proof of property rights as a guarantee or repeated guarantee beyond the value of collateral; (5) obtaining loans by other means. [Related Laws] Article 80 of the Law on Commercial Banks If a borrower defrauds a loan, which constitutes a crime, he shall be investigated for criminal responsibility according to law. Judicial Interpretation Article 50 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs [Crime of Loan Fraud (Article 193 of the Criminal Law)] Whoever defrauds a bank or other financial institution of loans for the purpose of illegal possession, with an amount of more than 20,000 yuan, shall file a case for prosecution. Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (1996.12.16 Fa Fa Fa Fa [1996] No.32) (invalid) IV. According to Article 10 of the Decision, defrauding banks or other financial institutions for the purpose of illegal possession, "other serious circumstances" as stipulated in Article 10 of the Decision refers to: (1) bribing the staff of banks or financial institutions for the purpose of defrauding loans, with a large amount; (two) squandering loans, or using loans for illegal activities, resulting in loans that cannot be repaid when they expire; (three) concealing the whereabouts of the loan and refusing to repay it after the expiration of the loan period; (four) to apply for a loan by providing false guarantee, and refuse to repay it after the expiration of the loan period; (five) to apply for a loan in the name of others, and refuse to repay the loan after the expiration of the loan period. "Other particularly serious circumstances" as stipulated in Article 10 of the Decision refers to: (1) bribing the staff of a bank or financial institution for the purpose of defrauding loans, with a huge amount; (2) absconding with money; (three) the use of loans for criminal activities. The amount of personal loan fraud is 654.38 million yuan, which is a "large amount"; The amount of personal loan fraud is more than 50,000 yuan, which is a "huge amount"; If the amount of personal loan fraud is more than 200,000 yuan, it is a "particularly huge amount". Summary of the Supreme People's Court's Symposium on National Courts' Self-management of Financial Crimes (2001.21Law [20065438+0] No.8) (III) On the Crime of Financial Fraud 2. Determination of the crime of loan fraud. Loan fraud is one of the most common financial fraud crimes at present. We should pay attention to the following two problems when trying the crime of loan fraud: First, the unit cannot constitute the crime of loan fraud. According to the provisions of Articles 30 and 193 of the Criminal Law, the unit does not constitute the crime of loan fraud. For the loan fraud committed by the unit, it cannot be convicted and punished for the crime of loan fraud, nor can the directly responsible person in charge and other directly responsible personnel be investigated for criminal responsibility. However, in judicial practice, if a unit obviously deceives banks or other financial institutions by signing and performing loan contracts for the purpose of illegal possession, which meets the constitutive requirements of the crime of contract fraud stipulated in Article 224 of the Criminal Law, it shall be convicted and punished for the crime of contract fraud. Second, we must strictly distinguish between loan fraud and loan disputes. After legally obtaining the loan, if the loan is not used according to the prescribed purpose and the loan is not returned at maturity, it cannot be convicted and punished for loan fraud; If there is evidence to prove that the actor does not have the purpose of illegal possession, obtains the loan by deception because he does not have the loan conditions, has the ability to repay the loan at the time of committing the crime, or cannot repay the loan at the time of committing the crime due to reasons beyond his will, such as mismanagement, fraud, market risk, etc. , should not be convicted and punished for loan fraud. 3. The amount standard of conviction and sentencing of financial fraud crime and the calculation of crime amount. The amount of financial fraud is not only an important benchmark for conviction, but also the main basis for sentencing. Before there is a new judicial interpretation, it can be implemented with reference to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases (1996). When determining the amount of financial fraud crime, it should be calculated by the amount actually defrauded by the actor. Agency fees, handling fees, kickbacks, etc. Paid by the actor for actual financial fraud, or for bribery, gifts, etc. , should be included in the amount of financial fraud. However, the amount returned before the incident should be deducted.