Chapter V: Crimes of Infringement of Property
Article 263:[Crime of Robbery] Whoever robs public or private property by force, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined;
(1) Entering a home for robbery;
(2) Robbery on public transportation;
(3) robbing banks or other financial institutions;
(4) Repeated robberies or robberies with a huge amount;
(5) Robbery causing serious injury or death;
(6) Impersonating military or police personnel to rob:
(7) Robbery with a gun;
(8) Robbing military materials or emergency, disaster relief, or relief materials.
Case 52
The perpetrator's use of violence on the spot to force the victim to transfer money to the account designated by the perpetrator through online bank transfer constitutes the crime of robbery (Bulletin of the Supreme People's Court, No. 6, 2010) From May to July 2006, defendant Liang Mouzhi owed a huge amount of gambling because of his participation in online "baccarat" gambling, so he had the intention of kidnapping the victim Pan Mouying for property. On July 28, 2006, Liang Mouzhi conspired with defendant Liang Moucai and agreed that Liang Moucai would prepare ropes and sealing glue and other crime tools to wait for the opportunity to commit the crime. At about 2 p.m. on August 3 of the same year, Liang Mouzhi booked a villa in advance at the Beatui Lake Resort in Nanjie Town, Guangning County, Guangdong Province, and then tricked Pan Mouying into the villa under the pretext of transferring the power station. Subsequently, Liang Mouzhi and Liang Moucai jointly subdued Pan Mouying, and used the rope, sealing glue and other tools prepared in advance to bind and seal Pan Mouying, and violently forced Pan Mouying to use the laptop he brought to transfer RMB 545,000 to Liang Mouzhi's account opened at the Agricultural Bank of China. In the afternoon of the same day, Liang Mouzhi went to the Agricultural Bank of China to withdraw 20,000 yuan in three times. During Liang Mouzhi's withdrawal of money, Pan Mouying took the opportunity to resist and broke free of the rope that bound his wrist. After Liang Moucai found out, he strangled Pan Mouying's neck with a rope, causing his death. Later, Liang Moucai telephoned Liang Mouzhi about this matter, and Liang Mouzhi purchased a fiber bag and rushed back to Taizhu A Villa to pack Pan Mouying's body. That night, Liang Moucai used a van to transport Pan Mouying's body to the bamboo garden of Zhongzhou Village, Niuqi Village Committee, Gushui Town, Guangning County, to be buried. The next morning, Liang Mouzhi again withdrew 345,000 yuan from the Agricultural Bank of China.
In the early morning of August 8, 2006, the public security organs arrested defendant Liang Mouzhi and brought him to justice. The next morning, defendant Liang Moucai surrendered himself to the public security organs.
The public prosecution organ initiated a public prosecution on the grounds that Liang Moucai and Liang Mouzhi had committed robbery.
The Zhaoqing Intermediate People's Court held in the first instance that, according to article 263 of the Criminal Law, the crime of robbery refers to the act of forcibly snatching public or private property on the spot by using violence, coercion or other means against the owner or custodian of property for the purpose of illegal possession. This crime is a crime of infringement of property, which is subjectively manifested as direct intent and has the purpose of illegally possessing public or private property, and objectively manifests itself as the perpetrator's use of violence, coercion or other coercive methods against the owner, custodian or guardian of public or private property on the spot to immediately snatch the property or force the victim to hand over the property immediately.
With regard to the defense opinion of defendant Liang Mouzhi and his defender that Liang Mouzhi recovered the fraudulent gambling funds from the victim Pan Mouying, rather than committing the crime of robbery, the court held that, according to the Interpretation of the Supreme People's Court on How to Convict others for Illegally Detaining Others for Debts Not Protected by Law, if the perpetrator illegally seized or detained others for the purpose of soliciting debts that were not protected by law, such as usury or gambling debts, he would be convicted and punished in accordance with the provisions of Article 238 of the Criminal Law. The precondition for constituting the crime of unlawful detention under the circumstances mentioned above is the actual existence of debts that are not protected by law, such as usury and gambling debts. In this case, apart from the confessions of the defendants Liang Mouzhi and Liang Moucai, there was no evidence to prove that there were debts that were not protected by law between Liang Mouzhi and Pan Mouying, nor was there any evidence to prove that Pan Mouying had set up a scam to defraud Liang Mouzhi's property in gambling, and according to Liang Mouzhi's confession, he only suspected that Pan Mouying had defrauded him of gambling funds in the gambling game. Therefore, the two defendants' illegal abduction of Pan Mouying and forcing Pan Mouying to hand over his property did not fall within the circumstances provided for in the above-mentioned judicial interpretation, and his conduct should not be convicted and punished as the crime of illegal detention. Liang Mouzhi and his defender's defense reasons that his conduct constituted the crime of illegal detention were not established and were not accepted. In summary, defendants Liang Mouzhi and Liang Moucai used violent means to rob other people's property for the purpose of illegal possession, and their acts have constituted the crime of robbery, and the circumstances of the crime are heinous and the consequences are serious, and they should be punished according to law. Liang Mouzhi is the initiator and entanglement of the offenders in this case, plays a major role in the joint crime, and is the main offender. In view of the fact that he has a better attitude of admitting guilt after being arrested, he can be given a lighter punishment. In the process of committing a joint crime, Liang Moucai used violence to cause the death of the victim Pan Mouying, and the circumstances of the crime were heinous and the consequences were serious. In view of the fact that he surrendered himself after the crime occurred and had a good attitude of admitting guilt, he may be given a lighter punishment in accordance with law. The defense opinions of Liang Moucai and his defender were adopted. The facts of the crime alleged by the public prosecution organ are clear, the evidence is credible and sufficient, and the crime is established and should be supported.
First-instance judgment: Liang Moucai committed robbery and was sentenced to death with a two-year suspension of execution, deprivation of political rights for life, and confiscation of all personal property; Liang Mouzhi committed robbery and sentenced to 15 years' imprisonment, deprivation of political rights for five years, and a fine of 500,000 yuan; attached to the civil lawsuit Pan Moukang, Feng Moujiao, Pan Mouhao's economic losses of RMB157,571.93 were borne by Liang Moucai for 70% of the total compensation, that is, 110,300.35 yuan, Liang Mouzhi was liable for 30% of the total compensation, that is, 47,271.58 yuan, and Liang Moucai and Liang Mouzhi were jointly and severally liable for the total amount of the above compensation; the stolen funds transferred with the case were returned to Pan Moukang, Feng Moujiao and Pan Mouhao in the attached civil lawsuits of RMB445440 and HK$510.
After the verdict was pronounced, Liang Moucai and Liang Mouzhi did not appeal, and the public prosecution organ did not protest. The sentence of suspending the execution of Liang Moucai's death sentence for two years is submitted to the Provincial High People's Court for approval in accordance with law.
The review court ruled: Approve the first-instance criminal judgment that Liang Moucai was sentenced to death for robbery, suspended for two years, deprived of political rights for life, and sentenced to confiscation of all personal property.
In summary, the Interpretation of the Supreme People's Court on How to Convict others for Illegally Detaining Others for Debts Not Protected by Law stipulates that if an actor illegally detains or detains another person for the purpose of soliciting debts that are not protected by law, such as usury or gambling debts, he shall be convicted and punished in accordance with the provisions of Article 238 of the Criminal Law. Accordingly, the precondition for constituting the crime of unlawful detention under the circumstances of the above provisions is the actual existence of debts that are not protected by law, such as usury and gambling debts. Where the perpetrator only subjectively suspects that the victim has devised a scam against him in a gambling game, illegally hijacks the victim in order to recover gambling funds, and forces the victim to hand over his property, it does not fall under the circumstances provided for in the above-mentioned judicial interpretation.
According to article 263 of the Criminal Law, the crime of robbery refers to the act of forcibly snatching public or private property from the owner or custodian of property on the spot by violence, coercion or other means for the purpose of illegal possession. The perpetrator uses violence on the spot to control the victim, forcing the victim to transfer the money to the account designated by the perpetrator through online bank transfer, and his act is to force the victim to hand over the property on the spot, which is consistent with the criminal composition of the crime of robbery, and shall be convicted and punished in accordance with the provisions of article 263 of the Criminal Law.
Related Case Index
Wu Moulong's robbery and intentional homicide [Hunan Provincial High People's Court (2016) Xiang Xing Zhong No. 11]
Highlights of the Case
After using violence to rob another person's property and killing the victim for the purpose of killing the mouth, the perpetrator has both the purpose of illegally taking possession of the property of others and intentionally depriving the other person of his life, there are two criminal intentions, and the two acts of robbery and homicide are committed separately, and the constituent elements of the crime of robbery and intentional homicide are respectively met, which are several crimes and shall be punished together.
[Determination of Charges]
1. The boundary between sin and non-sin
1. The crime of robbery is the most harmful and serious crime of the nature of the crime of violating property, under normal circumstances, any act of forcibly seizing public or private property for the purpose of illegal possession, using violence, coercion or other methods, has the basic characteristics of the crime of robbery and constitutes the crime of robbery. There are no restrictive provisions on the amount and circumstances of robbery in legislation. However, in accordance with the provisions of Article 13 of this Law, acts with obviously minor circumstances and little harm shall not be considered to constitute the crime of robbery. For example, juveniles occasionally commit mischievous robberies, which are very restrained and extremely limited, such as extorting a small amount of property, snatching a small amount of food, etc., because the circumstances are obviously minor and the harm is not large, it is a general illegal act and does not constitute the crime of robbery.
2. If one party snatches back the dowry or dowry because of a marriage or family dispute, or forcibly divides and takes away the common property of the family, even if the share of the family is taken back or taken away, it is a problem of improper handling methods in civil or marital disputes, does not have the purpose of illegally seizing other people's property, and does not constitute the crime of robbery.
3. Angered by matters such as the divorce of children, the violent death of married daughters, etc., and the gathering of relatives and friends to smash each other's family property and rob grain, vegetables, chickens and pigs, is an act of anger and retaliation in marriage and family disputes, and should generally be done well in mediation work, properly handled, and not punished as a crime of robbery.
2. The boundary between completion and attempt at the present crime
To distinguish between the completion and attempt of the crime of robbery, the criterion shall be whether the constituent elements of the crime of robbery are met, that is, whether the statutory result of the crime has been caused. In accordance with the provisions of this article, the offence of robbery has two forms: basic and aggravated. Therefore, the criteria for completion and attempt should be examined separately, and when the facts of the crime belong to the basic composition of the crime, whether the act committed by the perpetrator has acquired property or caused injury shall prevail; when the actor's conduct falls under one of the aggravating circumstances specified in this article, all the elements of the aggravating form have been met, and whether or not the perpetrator has seized the property, it should be the completion of the crime.
Iii. The boundary between the crime of robbery and the crime of extortion
1. The "threat" of the crime of robbery is issued directly by the perpetrator in the presence of the victim: the "threat" of the crime of extortion may be issued in person, or it may be issued in the form of letters, telephone calls, telegrams, etc., or it may be issued by the perpetrator himself or through a third person. 2. The "threat" of the crime of robbery is to threaten to be carried out on the spot, and the content of the "threat" can be carried out on the spot; the "threat" of the crime of extortion is generally a threat that it will be carried out, not necessarily on the spot, and the content of the "threat" can be carried out on the spot, or it can be carried out at a later time. 3. The crime of robbery is to force the victim to hand over the property on the spot; the time and place when the crime of extortion compels the victim to hand over the property may be on the spot or at a later designated time and place. Property in the possession of the crime of robbery may be only movable property; 5. In addition to the use of threats, the crime of robbery can also use violence or other methods, so that the personal rights of the victim are often infringed at the same time;
Regulations
Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Robbery Cases, and Article 9 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Obstructing the Prevention and Control of Sudden Epidemics of Infectious Diseases and Other Disasters
Article 264:[Crime of Theft] Whoever steals public or private property in a relatively large amount, or who steals it multiple times, steals from a household, steals with a murder weapon, or pickpockets, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined alone; if the amount is huge or has 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 particularly large or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have his property confiscated.
Provision Notes
The Criminal Law Amendment (VIII) amends this article: the provision that the death penalty may be imposed for theft has been deleted, and according to the opinions of the relevant departments, the provisions of three types of acts, namely, burglary with a murder weapon, and pickpocketing, have been added to directly constitute the crime of theft.
Case 53
Theft of relatives' property and performance of repentance are exempt from criminal punishment (Bulletin of the Supreme People's Court, No. 5, 2011)
Defendant Hao Moudong is the nephew and grandson of the victim Hao Mouhou. At about 11:00 a.m. on April 28, 2008, Hao Moudong went to the courtyard of Hao Mouhou's family in Yinta Village, Fugu Town, saw that there was no one in the courtyard, and thought of the creditor forcing the debt, so he had the idea of stealing and repaying the debt. Hao Moudong then found a steel stick in the courtyard, broke the window glass into the room, and found a kitchen knife in the room, pried the drawer of Hao's thick writing desk, stole 53,000 yuan of cash in the drawer, and then deposited 49,000 yuan into the bank, leaving 4,000 yuan to repay the debt. On the afternoon of the same day, Hao Moudong was arrested by public security personnel. After the case was solved, all 49,000 yuan of stolen money deposited in the bank was recovered and returned to the owner, and the remaining 4,000 yuan was compensated to the owner on behalf of Hao Moudong's father, Hao Mouguo.
The public prosecution then filed a public prosecution with the court on the grounds that Hao Moudong had committed theft.
The Fugu County People's Court of Shaanxi Province held in the first instance that defendant Hao Moudong secretly stole other people's property for the purpose of illegal possession, and the amount was particularly huge, and his conduct constituted the crime of theft. The amount of theft in this case is particularly large, and the sentence should be more than ten years in accordance with the provisions of the Criminal Law. However, when sentencing Hao Moudong, the following points were considered in lighter circumstances: (1) The defendant was indeed the nephew and grandson of the victim Hao Mouhou, who had lived with the victim since childhood, and the two sides had a close relationship and good feelings. Although the relationship between the two parties is not a "close relative" as stipulated in article 82 of the Criminal Procedure Law, it belongs to a collateral blood relative within five generations and is a family relationship. The theft of their relatives' property is different from other acts of theft and should be treated differently when sentencing. (2) The stolen money stolen by the defendant was recovered only a few hours after the day of the crime, and did not cause any economic losses to the victim. (3) The victim strongly requested that the court exempt the defendant from punishment, and after the incident, Hao Mouhou successively went to the public, procuratorial, and legal departments to reflect and asked for exemption from the defendant's punishment, saying that if the defendant was punished by criminal punishment because of his reporting, the relationship between the two families would be difficult to handle well, and the villagers would also think that he had to be unreasonable. (4) Hao Moudong's confession attitude after his return to the case is better, and he is a first-time offender.
The court of first instance ruled that Hao Moudong was guilty of theft and sentenced to five years' imprisonment and a fine. After the judgment was served, Hao Moudong did not file an appeal, and the public prosecution organ did not protest. Because this case is a case of criminal punishment below the statutory sentence, the court of first instance finally submitted it to the Supreme People's Court for approval after reporting it step by step.
The Supreme People's Court reviewed and held that although the amount of theft in this case was particularly huge, it occurred between close relatives with a common living background, the victim Hao Mouhou expressed forgiveness and did not want to pursue the criminal responsibility of the defendant Hao Moudong, the stolen property was recovered immediately after the crime, and did not cause the actual losses of the victim, the defendant had just reached adulthood when he committed the crime, the subjective viciousness of the crime was not deep, the scope and extent of the harm actually caused by the crime were limited, and according to the special circumstances of the case, it should be found to be provided for in Article 37 of the Criminal Law." minor circumstances do not require a penalty". The original judgment sentenced Hao Moudong to a sentence below the statutory sentence was still excessive. Therefore, it was decided to revoke the criminal judgment of the first-instance judgment against Hao Moudong for theft, and sentenced him to five years' imprisonment and a fine below the statutory sentence; the case was remanded to the original court of first instance for a new trial.
After a retrial, the Fugu County People's Court of Shaanxi Province held that defendant Hao Moudong secretly stole other people's property for the purpose of illegal possession, and the amount was particularly huge, and his conduct had constituted the crime of theft, and the public prosecution organ was convicted of the crime and should be punished according to law. According to item (4) of article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases, stealing one's own family property or the property of one's close relatives may generally not be treated as a crime; where there is a real need to pursue criminal responsibility, the punishment should also be different from that of ordinary theft cases. In this case, although defendant Hao Moudong and victim Hao Mouhou were not legally prescribed close relatives, the defendant was the victim's nephew and nephew, a collateral blood relative within five generations, and the defendant had lived with the victim since childhood, and the two had a deep affection, and after the defendant committed the crime, the victim repeatedly requested the court to be lenient. After the defendant was arrested, he had a good attitude of admitting guilt, showing obvious remorse, and most of the stolen funds were recovered in a timely manner, and the insufficient part was also returned to the owner by his close relatives. Comprehensively considering the circumstances of the defendant's crime, the harmful consequences and his expression of remorse, the defendant's criminal conduct should fall under the circumstances provided for in article 37 of the Criminal Law that "the circumstances of the crime are minor and do not require a criminal punishment", so the defendant may be exempted from criminal punishment. In summary, to determine whether a certain theft crime falls under the "minor circumstances" of article 37 of the Criminal Law, it is necessary to objectively evaluate the necessity of criminal punishment in accordance with the provisions of the Criminal Law and relevant judicial interpretations, comprehensively considering the means of the crime, the object of the crime, the situation of returning stolen goods, and the social reaction. In cases where the case has special facts, circumstances, and so forth, it is necessary to earnestly implement the criminal policy of blending leniency with severity, and truly achieve correct discretion and equal punishment for crimes.
Related Case Index
Zang Mouquan et al. Theft and Fraud Cases (Guiding Case No. 27 issued by the Supreme People's Court on June 23, 2014)
Highlights of the Case
Theft refers to the act of secretly stealing public or private property for the purpose of illegal possession; fraud refers to the act of defrauding public or private property by fabricating facts or concealing the truth for the purpose of illegal possession. In characterizing the illegal possession of property by both secret and deceptive means, a distinction should be made between theft and fraud in terms of the perpetrator's adoption of the main means and the victim's awareness of disposing of the property. If the means by which the perpetrator plays a decisive role in obtaining the property is secret theft, and the fraudulent act only creates conditions or covers for the theft, and the victim does not "voluntarily" deliver the property, it shall be deemed to be theft; if the means that play a decisive role in the perpetrator's acquisition of the property is fraud, and the victim "voluntarily" delivers the property based on misunderstanding, and the theft is only an auxiliary means, it shall be regarded as fraud. In the case of information networks, where the perpetrator uses the information network to trick others into clicking on false links and actually steals other people's property through pre-implanted computer programs, causing a crime, he shall be convicted and punished as theft; where the perpetrator fabricates goods or services available for trading and deceives others into clicking on the payment link to obtain property in order to pay for the goods, constituting a crime, he shall be convicted and punished as a crime of fraud. In this case, the defendants Zang Mouquan and Zheng Mouling used preset computer programs and implanted methods to secretly steal huge amounts of money from other people's online bank accounts, and their acts have constituted the crime of theft. Zang Mouquan, Zheng Mouling, and defendant Liu Mouquan, for the purpose of illegal possession, defrauded others of a relatively large amount of money by opening false online stores and using forged shopping links, all of which constituted the crime of fraud. Several crimes committed by Zang Mouquan and Zheng Mouling shall be punished together in accordance with law.
[Determination of Charges]
The difference between theft and robbery. The biggest difference between the two crimes is that the crime of theft is to take the property of the property controller in a secret way when the person in charge of the property is not prepared, thus showing the secret nature of the act, while the crime of robbery is to rob the property directly from the hands of the person in charge of the property by violence, coercion or other means, so it shows the coercion, openness and on the spot. Where theft is transformed into robbery, special emphasis should be placed on the "on-the-spot nature" of the crime of robbery, that is, the perpetrator robs or forces the victim to hand over the property at the time or place where the perpetrator uses violence, coercion or other methods of personal coercion, and the two acts are completed on the spot, generally without a time interval.
Transformational robbery: Article 269 of the Criminal Law stipulates that whoever commits the crime of theft and uses violence or threatens violence on the spot in order to conceal stolen goods, resist arrest or destroy evidence of the crime shall be convicted and punished in accordance with the crime of robbery.
Regulations
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases Disrupting the Management Order of the Telecommunications Market 7 and 8 Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Sabotage of Public Telecommunications Facilities, Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Theft of Oil and Gas and Sabotage of Oil and Gas Equipment 3-5 and 8; Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving the Destruction of Electric Power Equipment
Article 265:[Crime of theft] Whoever, for the purpose of making profits, steals another person's communication lines, copies another person's telecommunications code number, or knowingly uses telecommunications equipment or facilities that are stolen or copied, shall be convicted and punished in accordance with the provisions of Article 264 of this Law.
Article 266:[Crime of Fraud] Whoever defrauds public or private property of a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined alone; 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 particularly large or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have his property confiscated. Where this Law provides otherwise, follow those provisions.
Related Case Index
Shanghai Hongkou District People's Procuratorate v. Chen Moujin, Yu Moujue and Other Fraud Cases (Bulletin of the Supreme People's Court, No. 12, 2012)
Highlights of the Case
Where a criminal gang is organized in the form of shares, pretending to be a hospital staff member and a patient, etc., and defrauding the victim of his or her property, it meets the constituent elements of the crime of fraud, and each perpetrator shall be convicted and punished separately according to the facts of his participation in the crime.
[Determination of Charges]
1. The boundary between fraud and debt disputes. The fundamental difference between the two is that the latter does not have the purpose of illegal possession, but only for objective reasons and cannot be repaid for a while; the crime of fraud is aimed at illegal possession, not because it cannot be returned for objective reasons, but because it is not intended to be repaid at all.
2. Both the crime of fraud and the crime of contract fraud are both fraudulent acts in nature, and both have the intention of fraud. The key to the difference is: (1) the time of the crime is different. The crime of contract fraud occurs in the process of signing and performing economic contracts; while the crime of fraud in general has no specific time and conditions. (2) The means of committing crimes are different. The manner of conduct of the crime of contract fraud is specific, that is, one of the five ways specified in the criminal law;
Regulations
Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases Disrupting the Management Order of the Telecommunications Market; Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Obstructing the Prevention and Control of Sudden Epidemics of Infectious Diseases and Other Disasters" 7 and 17; Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud
Article 267:[Crimes of Robbery] Whoever robs public or private property, with a relatively large amount or multiple times, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined alone; where the amount is huge or has 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; where the amount is particularly large or has 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 or confiscated for robbery with a murder weapon, and shall be convicted and punished in accordance with the provisions of article 263 of this Law.
Provision Notes
The Ninth Amendment to the Criminal Law adopted at the 16th Session of the Standing Committee of the Twelfth National People's Congress on August 29, 2015, amends this article in one place, adding "multiple robbery" to the first paragraph to constitute the crime of robbery, and shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined individually.
Case 54
Chen Moubao's Robbery Case [Dongguan Intermediate People's Court of Guangdong Province (2020) Yue 19 Xing Zhong No. 1323]
At about 6:30 p.m. on March 5, 2020, defendant Chen Moubao jumped into an alley in Dongguan City, took advantage of the fact that the victim Fu was not prepared, used the knife he was carrying to cut off the black shoulder bag on Fu's body, and immediately snatched the shoulder bag and the cash in the bag. At about 12:00 noon on March 8, 2020, chen Moubao, defendant of the public security organs, was arrested and arrested.
The court of first instance held that the defendant Chen Moubao, for the purpose of illegal possession, used the knife he was carrying to forcibly seize the property of others, and his behavior constituted the crime of robbery and should be punished according to law. Because Chen Moubao was a repeat offender, the defendant Chen Moubao was convicted of robbery and sentenced to four years and three months imprisonment and a fine of 5,000 yuan. Chen Moubao was not satisfied with the verdict and appealed, claiming that he did not carry a knife to commit the crime, that the knife on the ground at the scene was originally on the roadside beer crate, that his hand accidentally touched the knife and was scratched during the escape, that the victim's bag was torn off by him hanging on the guardrail during the escape, and that his behavior was robbery rather than robbery.
After investigation, the victim stated that when he heard someone shouting for a bag, he turned his head to find a man running away with her bag, and there was a knife on the ground, and later found that the back of his coat was cut; witness Liu mou confirmed that he returned to the scene after chasing the robbery man and saw a knife on the ground; the photograph of the victim's coat confirmed that the back of the victim's coat was split; the captured victim's satchel also showed that the shoulder strap of the satchel was a V-shaped fracture, and the fracture was flat instead of the filament that would appear when it was torn off The appraisal confirmed that the handle of the knife extracted at the scene and the sticky object on the blade were tested for the STR classification of the appellant Chen Moubao, but the STR classification of the victim and his family was not detected. The court of second instance held that the above evidence was sufficient to confirm the fact that the appellant Chen Moubao used the knife he was carrying to cut off the victim's shoulder strap on his shoulder bag to carry out the robbery, and the robbery carried out with a knife should be characterized as the crime of robbery according to law. The appeal was dismissed and the original judgment was upheld.
[Determination of Charges]
The difference between robbery and robbery. The biggest difference between the two is that the two are different in the way of conduct, the crime of robbery uses coercive means to occupy the property that makes the victim dare not resist, does not know or cannot resist, while the crime of robbery is to take advantage of the victim's lack of preparation to seize the property. If the victim is accidentally injured by excessive force, it still constitutes the crime of robbery, and the fundamental difference between it and the violence in the crime of robbery is that its force acts on property, while the force of robbery acts on the victim, and the effect is to make the victim give up resistance or be unable to resist in order to avoid bodily harm.
Under certain conditions, the crime of robbery can be converted into the crime of robbery. Whoever carries a murder weapon and robs shall be punished as the crime of robbery. "Carrying a murder weapon to rob" refers to the act of the perpetrator carrying firearms, explosives, controlled knives and other instruments prohibited by the State from carrying or other instruments that can cause casualties in the carrying of firearms, explosives, controlled knives, etc., or carrying other instruments for robbery in order to commit a crime. If the perpetrator carries with him or her equipment other than an instrument prohibited by the State from being carried by an individual, but there is evidence to prove that it was not prepared for the commission of a crime, it cannot be punished as the crime of robbery.
Regulations
Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Robbery Cases and Article 4 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Robbery
Article 268:[Crimes of Gathering Crowds to Rob Public or Private Property] Whoever gathers a crowd to rob public or private property, if the amount is relatively large or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also be fined if the amount is huge or there are other particularly serious circumstances, and shall also be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined.
Regulations
Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases involving the Destruction of Forest Resources
Article 269:[Crimes of Transformed Robbery] Whoever commits the crime of theft, fraud, or robbery, uses violence on the spot or threatens to use violence in order to conceal stolen goods, resist arrest, or destroy evidence of the crime, shall be convicted and punished in accordance with the provisions of Article 263 of this Law.
Case 55
Li Moufu robbery and theft case [Yunnan Provincial Higher People's Court (2020) Yunxing Zhong No. 1183]
At about 9:10 p.m. on January 24, 2019, the defendant of the original trial, Li Moufu, sneaked into the hall of a nursing home carrying a crowbar, a fruit knife and other tools to commit theft, pried open a safe at the front desk, and attempted to do so because the cabinet was not filled with property. At about 2:50 a.m. the next day, Li Moufu infiltrated Qunyi Company and pried open three jade display cabinets in the jade exhibition hall on the first floor of the company to steal jade jewelry. When Li Moufu left after stealing, he was found and intercepted by the company's security guard Chen Mou, Li Moufu used a crowbar and fist to injure Chen mou and continued to escape, and was later chased and caught by the company's employees. All the jadeite jewelry stolen by Li Moufu has been recovered. After identification, Chen's injuries constituted minor injuries; Qunyi Company stole 85 pieces of jadeite jewelry worth RMB6.6 million.
The court of first instance held that Li Moufu committed the crime of robbery, sentenced him to ten years' imprisonment and a fine of 100,000 yuan, committed theft, sentenced him to six months' imprisonment, and fined him 3,000 yuan, and punished several crimes at the same time, and decided to carry out a fixed-term imprisonment of ten years and a fine of 103,000 yuan.
The appellant Li Moufu proposed that the appellant was found and beaten by the security guards in the process of fleeing the scene after the theft, and unconsciously clapped his hands to resist, which did not constitute the crime of robbery; the stolen items had been returned to Qunyi Company in time, and the appellant's behavior was an attempted crime, and requested a mitigated punishment.
The court of second instance held that the appellant Li Moufu disregarded the law of the land and sneaked into a nursing home for the purpose of illegal possession to commit theft, constituting the crime of theft (attempt). After Li Moufu's theft of jadeite jewelry from Qunyi Company was discovered, the act of using violence on the spot to cause minor injuries in order to resist arrest should be found to constitute the crime of robbery according to law. Li Moufu should be punished for several crimes and punishments.
Regulations
Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Robbery
Article 270:[Crime of Misappropriation] Whoever illegally takes possession of another person's property in custody on his behalf, and refuses to return the amount, shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or a fine;
Whoever illegally occupies another person's forgotten or buried property for himself, and the amount is relatively large, and refuses to hand them over, shall be punished in accordance with the provisions of the preceding paragraph.
This crime shall be dealt with only if it is told.
Case 56
Feng Mouxing Misappropriation Case [Beijing Higher People's Court (2019) Jing Xing Zhong No. 39]
In December 2013, defendant Feng Mouxing and Zhu Moufang, the actual controller of Kunchang Company, signed an Equity Transfer Agreement, stipulating that Feng Mouxing would pay RMB38 million (all in THE following currencies) to purchase 80% of the company's equity in installments within 120 days from the date of signing the contract, but Feng Mouxing did not perform the contract to pay the money, so he did not acquire any equity in the company. Later, Feng Mouxing fictitiously made him the actual controller of Kunchang Company, who had mortgaged all the shares and assets of the company to others, and if the victim Wu repaid the debt principal and interest for him for a total of 36 million yuan, he could obtain 40% of the company's equity, and signed an Equity Transfer Agreement with Wu and others to defraud Wu of 20 million yuan. Feng Mouxing used most of the money he defrauded to repay personal debts, cash withdrawals and consumption. In June 2014, Feng Mouxing, without obtaining the equity and control rights of Kunchang Company, signed the "Agreement on Wu Giving Up 40% of the Equity of "Kunchang Mining" with Wu and others, which stated that "Feng Mouxing is the actual controller of Kunchang Company, and Wu voluntarily transferred 40% of the equity of Kunchang Company to a third party, Zhao Mouxing, on behalf of Feng Mouxing, returned to Wu 20 million yuan of the previous investment in Kunchang Company". Later, Zhao did not return the above money to Wu. In August of the same year, Feng Mouxing and Zhu signed the second "Equity Transfer Statement", and the two parties agreed that the equity transfer payment would increase from 38 million yuan to 52 million yuan, and part of the payment obligation would be fulfilled within 2 months, otherwise Zhu had the right to terminate the contract. Later, Feng Mouxing clearly informed Zhu in October of the same year that he would no longer purchase the company's equity. In October 2015, the victim, Wu Mou, reported the case to the public security organs. On April 12, 2016, defendant Feng Mouxing was arrested and brought to justice.
The court of first instance rendered the following judgment: Defendant Feng Mouxing committed contract fraud and was sentenced to life imprisonment, deprivation of political rights for life, and confiscation of all personal property; ordered defendant Feng Mouxing to return RMB20 million and return it to the victim Wu Mouxing.
The main defense opinions issued by Feng Mouxing's defenders are: Feng Mouxing and Wu Mouxing are closely related and jointly cooperate in business, and there is no basis and conditions for fraud; Feng Mouxing has the true intention and behavior of investing in the purchase of Kunchang Mining equity, and he does not have the subjective purpose of illegally possessing Wu's investment funds; there is insufficient evidence to determine that Feng Mouxing's fictitious facts caused the victim Wu to fall into a wrong understanding; this case is a civil case caused by an investment dispute, and later Feng Mouxing, Wu Mouxing, The tripartite agreement signed by Zhao stipulates that Zhao will reimburse Wu for 20 million yuan of investment funds, and Feng Mouxing's behavior does not constitute a crime.
The court of second instance held that the crime of contract fraud refers to the act of using deceptive means to defraud the other party of property in the process of signing and performing a contract with the purpose of illegal possession. Since it is to defraud the other party of the property, it means that before the other party delivers the property, the perpetrator commits the deception with illegal possession, otherwise it is impossible to establish the crime of contract fraud. The evidence in the case proved that Feng Mouxing twice paid an advance payment of 500,000 yuan each to Zhu Mou, the actual controller of Kunchang Company, indicating that he did have the intention to purchase equity. Wu also confirmed that Feng Mouxing had provided him with relevant industrial and commercial and mineral information of Kunchang Company. According to Zhu's testimony provided by the procuratorate during the second-instance trial, he confirmed that he only began to urge Feng Mouxing to pay the equity transfer fee after the first-instance judgment won his case on July 18, 2014, and had not previously provided Feng Mouxing with a company account. On June 28, 2014, Wu had signed an agreement to waive the equity acquisition, and at that time, the equity of Kunchang Company was not even under Zhu's name. In other words, it is due to the objective reasons of Zhu Mou. As a result, Feng Mouxing was unable to complete the transfer of equity to Wu. Later, on August 26, 2014, Zhu raised the equity transfer price from 38 million yuan to 52 million yuan without the final judgment of the company's equity dispute. Since the illegal possession of the perpetrator in the crime of contract fraud must arise before the victim delivers the property, based on the existing evidence in the whole case, it is impossible to exclude reasonable doubt, and the only conclusion that Feng Mouxing had the purpose of illegally possessing other people's property before obtaining the victim Wu Mou's 20 million yuan. Therefore, Feng Mouxing's conduct does not constitute the crime of contract fraud.
Nevertheless, after receiving 20 million yuan from Wu for the purchase of equity, Feng Mouxing had the obligation to keep the money on his behalf, and he did not use the money for the acquisition of equity in accordance with the prior agreement, but without the consent of the victim, he was personally possessed and used, resulting in the inability to return it, which belonged to the illegal appropriation of the property of others in custody as his own, and his behavior met the constituent elements of the crime of misappropriation. In summary, the judgment revokes the first item of the main text of the Beijing Municipal No. 1 Intermediate People's Court (2017) Jing 01 XingChu No. 120 Criminal Judgment, that is, the defendant Feng Mouxing committed contract fraud, sentenced him to life imprisonment, deprivation of political rights for life, and confiscation of all personal property. The appellant, Feng Mouxing, committed the crime of misappropriation and was sentenced to three years' imprisonment and fined RMB30,000.
[Determination of Charges]
The difference between theft and misappropriation. The key to distinguishing the crime of theft from the crime of misappropriation is to determine whether the property that is the object of the crime is out of possession and by whom. It is impossible for the perpetrator to steal the property he is in fact in possession of, and the property he has actually possessed can only be guilty of misappropriation. The crime of misappropriation is characterized by the conversion of property in one's possession into ownership. Objectively speaking, possession refers to de facto domination (not the same concept as possession in the purpose of illegal appropriation), which includes not only domination within the scope of physical domination, but also the state of domination of property that can be deduced from social concepts. (1) As long as it is in the field of the fact domination of others, even if others do not have a realistic possession or surveillance, it belongs to others. For example, property in another person's house or car, even if the other person completely forgets of its existence, belongs to the property of others. (2) Although outside the realm of domination by others, when there is a state in which it can be inferred that it is in fact dominated by others, it is also in the possession of others. For example, a bicycle parked in front of another person's door, even if it is not locked, should be considered to be in the possession of someone else. For example, any possessions hanging on the doors or windows of others are in the possession of others. (3) Pets raised by the owner with the ability or habit of returning to the original place, regardless of where the pet is located, shall be deemed to be in the possession of the owner. (4) Even if the original possessor loses possession, when the property is transferred to the possession of the manager of the building or a third party, it shall be deemed to be in the possession of another person. For example, the property forgotten by the passenger in the taxi belongs to the possession of the taxi driver, although it is forgotten relative to the passenger, but in the case of the taxi driver, it is the property in his possession. Therefore, the act of a third party taking the property from the taxi shall be considered as theft.
Regulations
Paragraph 1 of article 14 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Obstructing the Prevention and Control of Sudden Epidemics of Infection and Other Disasters
Article 271:[Crimes of Occupation of Duties] A staff member of a company, enterprise or other unit who, by taking advantage of his or her position, illegally appropriates the property of his or her unit for himself, and the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined;
Whoever engages in public service in a State-owned company, enterprise or other State-owned unit and a person appointed by a State-owned company, enterprise or other State-owned unit to engage in public service in a non-State-owned company, enterprise or other unit commits the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of Articles 382 and 383 of this Law.
Provision Notes
The First Paragraph of this Article is amended in the Criminal Law Amendment (XI). The first is to lower the sentencing standards for the main sentence. For the case of "a relatively large amount", the sentence is changed from "fixed-term imprisonment of less than five years or criminal detention" to "fixed-term imprisonment of not more than three years or criminal detention"; for the case of "huge amount", the sentence is changed from "fixed-term imprisonment of not less than five years" to "fixed-term imprisonment of not less than three years but not more than ten years"; in the case of "the amount is particularly large", the main sentence is fixed-term imprisonment of more than ten years or life imprisonment. The second is to revise the relevant provisions on additional punishments. Added the sentence of "and fined". In the case of a large amount", the additional sentence of "may be confiscated of property" is also deleted.
Related Case Index
Case of Misappropriation and Misappropriation of Funds by Mai Mouxin[Guangdong Provincial Higher People's Court (2015) Yue Gaofa Trial And Prison Rezi No. 7]
Highlights of the Case
1. Regarding the crime of misappropriation of office. First, it cannot be determined that Mai Mouxin has the intention of illegally occupying the property of his unit as existing. According to the existing evidentiary materials, the East Asia Company was established to operate the land project involved in the case, did not carry out other business activities, and its capital transactions were relatively single and clear. The East Asia company was provided by Mai Mouxin with registered capital and the main capital for operation, and Mai Mouxin had no purpose of illegally occupying the property of the East Asia company. Second, the land development project involved in the case was circulated between The East Asia Company and changxin company, and Mai Mouxin did not take the land development project and investment funds for himself. There is no evidence to prove that Mai Mouxin embezzled the investment funds of other shareholders and harmed the interests of the creditors of the East Asian Company, and it cannot be found that Mai Mouxin's behavior infringed on the property ownership of the East Asian Company. The above-mentioned acts of Mai Mouxin do not constitute the crime of usurpation of office.
2. Regarding the crime of misappropriation of funds. There is no evidence that Mai mouxin embezzled the funds of the East Asia company for personal use. The funds involved in the case came from a loan from the bank in the name of the East Asia Company for the operation of the Changxin Company, which was also authorized and approved by Chen Moulong, another shareholder of the East Asia Company. After the incident, Mai Mouxin returned the bank loan in advance, and his behavior did not constitute the crime of misappropriation of funds. From the perspective of the whole case, disputes over economic interests between the shareholders of the company can be resolved through settlement, mediation and civil litigation. The original trial convicted Mai Mouxin and imposed a criminal punishment, which was a failure to accurately grasp the boundary between civil disputes and crimes, and should be corrected.
Article 272[Crime of Misappropriation of Funds] A staff member of a company, enterprise or other unit who, by taking advantage of his position, embezzles the funds of his own unit for personal use or lends them to others, and the amount is relatively large, has not been repaid for more than three months, or although it has not exceeded three months, but the amount is relatively large, he has carried out profit-making activities, or has carried out illegal activities, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount of funds of his unit is huge, he shall be sentenced to fixed-term imprisonment of not less than three years;
Whoever engages in public service in a State-owned company, enterprise or other State-owned unit and a person appointed by a State-owned company, enterprise or other State-owned unit to engage in public service in a non-State-owned company, enterprise or other unit commits the acts mentioned in the preceding paragraph shall be convicted and punished in accordance with the provisions of Article 384 of this Law.
Where there is an act mentioned in the first paragraph, the misappropriated funds are returned before the public prosecution is initiated, the punishment may be mitigated or mitigated. Among them, where the crime is relatively minor, the punishment may be mitigated or waived.
Provision Notes
The Criminal Law Amendment (XI) amends the first paragraph of this article by adding a new paragraph as the third paragraph. Specifically, the first is to delete the situation that "the amount is relatively large and does not return"; second, for the situation of "misappropriation of a huge amount of funds of the unit", the statutory punishment is revised from "fixed-term imprisonment of three to ten years" to "fixed-term imprisonment of not less than three years but not more than seven years"; third, the situation of adding a "particularly large amount" is added, and the statutory punishment is "fixed-term imprisonment of more than seven years"; the fourth is to stipulate the circumstances in which the perpetrator returns the funds before initiating a public prosecution.
Case 57
Mei Moumou's Misappropriation of Funds Case [Hubei Ezhou Intermediate People's Court (2018) E07 Xing Zhong No. 107]
In March 2011, defendant Mei X, who was then the deputy manager of Ezhou Huahu Agriculture, Industry and Commerce Corporation (hereinafter referred to as "AG&I Corporation"), negotiated with Liu X, secretary and general manager of the party branch of the company, and Ruan X, deputy secretary of the party branch (both handled in separate cases), and decided to lend 1.6 million yuan of the company's funds to Li for business operations, with an agreed period of three years and an annual interest of 160,000 yuan. The principal and interest of the funds borrowed by Mr. Li have not been repaid. Li thanked him and gave Mei and others 10,000 yuan each. On February 15, 2015, Mei returned the above 10,000 yuan to the Agriculture, Industry and Commerce Corporation. On July 16, 2015, the investigation organ telephoned Mei XX to come to the case for investigation, and Mei XX truthfully confessed the above facts.
The court of first instance held that defendant Mei XX, as a staff member of the collective unit, took advantage of his position to embezzle RMB1.6 million of the unit's funds to carry out profit-making activities, and his conduct constituted the crime of misappropriation of funds, and sentenced Mei XX to one year's imprisonment with a one-year suspended sentence.
The defendant in the original trial, Mei X, and his defender appealed, requesting exemption from criminal punishment.
The court of second instance held that the appellant Mei X, as a staff member of the collective unit, took advantage of his position to jointly embezzle the funds of his own unit to lend to others and carry out profit-making activities, and his conduct constituted the crime of misappropriation of funds. After Mei X commits a crime, he voluntarily surrenders, truthfully confesses the crime committed, and is voluntarily surrendered and given a lenient punishment in accordance with law. The role of Mr. Mei in the process of misappropriation of funds is relatively small compared with that of Liu Mou, the head of the company. The original judgment found that the facts were clear, the evidence was credible and sufficient, and the trial procedures were lawful. The court of first instance gave consideration to the statutory and discretionary circumstances such as the circumstances of Mei X's crime, her status and role in the joint crime, voluntary surrender, voluntary admission of guilt in court, and attitude of repentance, and gave them consideration when sentencing, and the sentence was appropriate. The appeal was dismissed and the original judgment was upheld.
[Determination of Charges]
1. The crime of embezzlement and misappropriation of funds
In the subjective aspect, it is an intentional crime, and the objective way of acting is misappropriation. The main differences are: 1. The subject of the crime is different. The subject of the crime of embezzlement is a state functionary, while the subject of the crime of misappropriation of funds is a staff member other than a state functionary in a company, enterprise or other unit. Whoever, a non-state functionary entrusted by a state organ, state-owned company, enterprise, public institution, or people's organization to manage or operate state-owned property, taking advantage of his position, misappropriates state-owned funds for personal use, constituting a crime, shall be convicted and punished in accordance with the provisions of the crime of misappropriation of funds, but not the crime of embezzlement of public funds. 2. The object of the crime and the object of the crime are different. The criminal object of the crime of embezzlement is a complex object, while the crime of misappropriation of funds only infringes on part of the ownership of the funds of a company, enterprise or other unit, and belongs to a single object. The crime of embezzlement of public funds is committed against public funds; and the crime of misappropriation of funds includes funds of both state-owned, collective, enterprise or other units, as well as funds of private companies, enterprises or other units.
2. The difference between the crime of misappropriation of office and the crime of misappropriation of funds
1. The crime of embezzlement of office is aimed at illegal appropriation; while the perpetrator of the crime of misappropriation of funds subjectively only temporarily borrows the funds of the unit and has no intention of permanent possession. 2. The object of the crime of embezzlement of office may be either the funds of the unit or the physical objects of the unit; and the object of the crime of misappropriation of funds can only be the funds of the unit. Misappropriation of physical objects of a unit generally does not constitute a crime. 3. The two are inconsistent in the lower limit of "larger amount", and the amount of the crime of misappropriation of funds is higher than that of the crime of embezzlement.
Regulations
Article 14 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Obstructing the Prevention and Control of Sudden Epidemics of Infectious Diseases and Other Disasters
Article 273:[Crimes of Misappropriation of Specific Funds and Materials] Whoever misappropriates funds and materials used for disaster relief, emergency rescue, flood prevention, preferential care, poverty alleviation, immigration, or relief, if the circumstances are serious and cause major harm to the interests of the State and the people, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention for the persons directly responsible;
Regulations
Article 17 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Obstructing the Prevention and Control of Sudden Outbreaks of Infectious Diseases and Other Disasters
Article 274:[Crimes of Extortion] Whoever extorts public or private property in a relatively large amount or extorts money multiple times shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined alone; if the amount is huge or has 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 particularly large 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.
Provision Notes
The Criminal Law Amendment (VIII) amends the provisions of this article by adding provisions that repeated extortion constitutes a crime, adding a third sentencing grade and adding property penalties.
Case 58
The Extortion Case of Tao Moubin and Others (Bulletin of the Supreme People's Procuratorate, No. 6, 2011)
In July 2008, defendant Tao Moubin transferred liao mouqiang, a detainee from a municipal detention center, from an ordinary prison to the 104 transitional prison and designated him as the team leader, and at the same time designated the detainee Gao Mouhua (handled in a separate case) as the leader of the 101 transitional prison, and instructed Liao Mouqiang and Gao Mouhua to find ways to get money from other detainees but not cause trouble. Liao Mouqiang and others divided the detainees into three levels: above, middle and below, and demanded money by means of physical torture and psychological threats, and gave different treatment according to the amount of property they demanded. He extorted 55,000 yuan and pincered 274 kilograms.
The court of first instance held that the defendants Tao Moubin and Liao Mouqiang, for the purpose of illegal possession, used threats and blackmail to forcibly extort other people's property, and the amount was huge, and their acts constituted the crime of extortion. In the joint crime of extortion and extortion, defendant Tao Moubin instructed defendant Liao Mouqiang to extort money from detainees, and defendant Liao Mouqiang actively carried out threats and blackmail methods to forcibly extort other people's property and property, all of which played a major role and were the main offenders. Convicted the two of them of extortion. After the first-instance judgment was pronounced, the defendants Tao Moubin and Liao Mouqiang did not file an appeal within the statutory time limit, and the procuratorial organ did not file a protest, and the judgment took legal effect.
Related Case Index
Wang Moudong's Extortion Case (Shanghai Changning District People's Court released the sixth of the top ten typical cases of service protection of the private economy on September 24, 2019)
Highlights of the Case
The Shanghai Higher People's Court pointed out that for the purpose of illegally defrauding enterprises of money, threatening or threatening producers and business operators with complaints and reports, media exposures, lawsuits, etc., and forcing them to make claims or claim amounts that are obviously beyond a reasonable range, and the amount is relatively large or carried out many times, it may constitute the crime of extortion; for the purpose of illegally defrauding enterprises of money, through means such as product drop packages, hiding, fictitious product quality problems, or concealing the truth of product quality problems, so that business operators have the illusion of believing that it is true. Thus defrauding public or private property, the amount of which is relatively large, may constitute the crime of fraud.
Regulations
Article 9 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Robbery
Article 275:[Crimes of Intentional Destruction of Property] Whoever intentionally destroys public or private property in a relatively large amount or has other serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine; if the amount is huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
Related Case Index
Liu X and Liu X committed the crime of intentionally destroying property [Jiangsu Provincial High People's Court (2015) Su Xing Zai Ti Zi No. 00002]
Highlights of the Case
When determining the crime of intentional destruction of property, attention should be paid to the distinction between civil tort disputes. The crime of intentional destruction of property is subjectively aimed at destroying the property of others, and the act is not justified or lawfully justified, and is relatively bad in nature. If the act of destroying property is caused by legitimate reasons, and the perpetrator does not carry out the act for illegal purposes, but mainly protects his own legitimate rights and interests, then in the case that the act does not objectively cause major property losses and more serious and large social harm consequences, it does not meet the constituent elements of the crime of intentional destruction of property, and does not constitute the crime of intentional destruction of property.
[Determination of Charges]
1. The boundary between sin and non-sin
According to the provisions of this article, the intentional destruction of public or private property is relatively large or the circumstances are serious, which constitutes a crime. Therefore, whether the amount is large or the circumstances are serious is the line between crime and non-crime. Intentional destruction of public or private property, if the amount is relatively small and the circumstances are relatively minor, is a general illegal act, and shall be detained or warned in accordance with the provisions of the Law on Punishment for administration of Public Security, fined separately or concurrently, and ordered to compensate for losses. The so-called "serious circumstances" generally refer to the destruction or damage of important items, the loss is serious; the means of destroying or damaging public or private property are particularly bad; and the motive of marrying people is out of trouble.
2. The distinction between this crime and other crimes
The difference between this crime and the crime of sabotaging public security, such as the crime of sabotaging means of transportation, the crime of damaging traffic equipment, the crime of sabotaging inflammable and explosive equipment, the crime of sabotaging communication equipment, and the crime of sabotaging production and operation in the crime of undermining socialist economic order, is that the latter destroys specific property and infringes on other independent objects.
Regulations
Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Sabotage of Public Telecommunications Facilities
Article 276 [Crime of Sabotaging Production and Business] Whoever, for the purpose of venting anger and retaliation or other personal purposes, destroys machinery and equipment, mutilates cultivated livestock or sabotages production and operation by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance;
Case 59
Dong Mouchao and Xie Mouhao's Case of Sabotaging Production and Operation (Bulletin of the Supreme People's Court, No. 8, 2018)
The Taobao platform is an online trading platform operated by Taobao companies, including taobaocom and other domain names enabled by Taobao. In order to maintain the normal operating order of Taobao and protect the legitimate rights and interests of Taobao users, Taobao Company has formulated the Taobao Rules, which add basic obligations or restrict basic rights to Taobao users. According to the Taobao Rules, in order to enhance the shopping experience of consumers, Taobao companies can give a single product Taobao search reduction market control measures for products suspected of infringing on the rights and interests of customers such as improper sales of goods, that is, adjusting the ranking of the goods in the search results.
In November 2013, Wisdom Tooth Company registered and established an online store named "PaperPass PaperPass" on Taobao.
In April 2014, Defendant Dong Mou, who was engaged in the thesis similarity testing business on Taobao, hired and instructed defendant Xie Mouhao to maliciously purchase a large number of goods from the Taobao Store of Wisdom Tooth Nanjing Branch under the same account for several times, with the intention of making Taobao Company use suspected false transactions to make search and reduce rights and other market control measures on the goods of Wisdom Tooth Nanjing Branch. Among them, Xie Mouhao was instructed to use the same account in the early morning of April 18 and maliciously purchased 120 single goods; in the early morning of April 22, Xie Mouhao was instructed to use the same account and maliciously purchased 385 single goods; in the early morning of April 23, Xie Mouhao was instructed to use the same account and maliciously purchased 1,000 goods.
On April 23, 2014, Taobao Company determined that the Taobao online store of Wisdom Tooth Nanjing Branch was engaged in false transactions, and made market control measures to reduce the right to search for goods in the store, and after an offline appeal by Wisdom Tooth Nanjing Branch, it restored the search ranking of the store's goods on April 28 of the same year.
During the search reduction period, consumers could not search for the goods of the Zhiya Nanjing Branch Haibao Network store through the Taobao search bar within a few days, and the normal production and operation of the company's Taobao store was destroyed After analyzing and counting the daily transaction amount and industry transaction trend of wisdom tooth Nanjing Branch from April to May 2014, the loss caused by the wisdom tooth Nanjing branch due to the search and reduction of its goods was more than 100,000 yuan.
The court of first instance held that the defendants Dong Mouchao and Xie Mouhao used other methods to sabotage production and operation for the purpose of cracking down on competitors, and the acts of the two defendants had constituted the crime of sabotaging production and operation. Dong Mouchao and Xie Mouhao jointly and intentionally committed the criminal act of sabotaging production and operation, which is a joint crime. Therefore, defendant Dong Mouchao was sentenced to one year and six months imprisonment with a suspended sentence of two years for the crime of sabotaging production and operation, and sentenced defendant Xie Mouhao to one year's imprisonment with a suspended sentence of one year and two months. After the first-instance judgment was pronounced, Dong Mouchao and Xie Mouhao were not satisfied, and appealed on the grounds that their acts were only single-bill brushing and did not constitute the crime of sabotaging production and operation.
The court of second instance held that, in terms of the characterization of the acts of the second appellant, the evidence in the case confirmed that the two appellants subjectively had the purpose of retaliation and profit from it, objectively carried out the act of destroying the production and operation of the victim unit by damaging the commercial reputation of the victim unit, the victim unit suffered losses of more than 100,000 yuan due to the acts of the two appellants, and there was a causal relationship between the acts and losses of the two appellants, and their acts met the criminal composition of the crime of sabotaging production and operation, and should be convicted and punished as the crime of sabotaging production and operation. The involvement of third-party factors does not affect the determination of causation. Therefore, the conviction part of the court of first instance against the appellants Dong Mouchao and Xie Mouhao was upheld.
[Determination of Charges]
The difference between the crime of sabotaging production and operation and the crime of intentional destruction of property is:
(1) The crime of sabotaging production and operation, destroying machinery and equipment, cultivated livestock, and cash crops in the process of production and operation, thus affecting the smooth progress of production and operation, and the destruction is generally the means of production, excluding labor products; the crime of intentional destruction of property, the destruction of public and private property, the act is to make public or private property lose all or part of its value or use value.
(2) The crime of intentional destruction of property must be a necessary condition for a relatively large amount or serious circumstances; This is because the social harm of the crime of sabotaging production and operation is relatively large, and once it is implemented, it often causes major losses to producers and operators.
(3) The crime of sabotaging production and operation is subjectively manifested as revenge or other purposes. Knowing that their own actions sabotage production and operation, and hope that this result will occur, and destroy specific objects to achieve the purpose that other people's production and operation cannot be carried out. The crime of intentional destruction of property may also be motivated by reprisals, but the perpetrator's purpose is limited to depriving the property of its own value.
Article 276-1 [Crime of Refusing to Pay Labor Remuneration] Whoever evades the payment of the labor remuneration of a worker by means such as transferring property and hiding, or who has the ability to pay but does not pay the labor remuneration of the worker, if the amount is relatively large, and is ordered to pay by the relevant government departments and still fails to pay, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined or fined alone; Where a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible for the crime shall be punished in accordance with the provisions of the preceding paragraph.
Where there are acts mentioned in the preceding two paragraphs that have not yet caused serious consequences, and the labor remuneration of the worker is paid before the public prosecution is initiated, and the corresponding liability for compensation is borne in accordance with law, the punishment may be mitigated or waived.
Provision Notes
This article stipulates the crime of evading payment or non-payment of labor remuneration to workers and their penalties, and is a crime added to the Criminal Law Amendment (VIII).
The crime of evading payment or not paying remuneration to a worker as provided for in this paragraph is an intentional crime, and the subject is a natural person. Subjectively, there must be an intent to evade payment or not to pay the worker's remuneration. The object of its infringement is a dual object, which not only infringes on the property rights of workers, but also disrupts the order of the market economy. Objectively, the perpetrator has evaded the payment of the worker's labor remuneration by means such as transferring property or hiding, or although he has not transferred the property or evaded, he has the ability to pay but deliberately fails to pay the worker's labor remuneration.
In any of the following circumstances for the purpose of evading payment of labor remuneration to workers, it shall be found to be "evading payment of labor remuneration to workers by means of transferring property, hiding, etc. as provided for in the first paragraph of article 276-1 of the Criminal Law" :(1) concealing property, paying off debts in bad faith, fabricating debts, false bankruptcy, false bankruptcy, false bankruptcy, or transferring or disposing of property by other means; (2) escaping or hiding; (3) concealing, destroying, or collectively changing accounts, registers of employees, wage payment records, Attendance records and other materials related to labor remuneration; (4) Evading payment of labor remuneration by other means.
In any of the following circumstances, it shall be found to be a "relatively large amount" as provided for in the first paragraph of article 276-1 of the Criminal Law :(1) refusal to pay a worker's labor remuneration for more than three months and the amount is 5,000 to 20,000 yuan or more; (2) refusal to pay the labor remuneration of ten or more workers and the cumulative amount is 30,000 yuan to 100,000 yuan or more.
Refusal to pay a worker's labor remuneration is "in a relatively large amount" and has any of the following circumstances shall be found to be "causing serious consequences" as provided for in the first paragraph of article 276-1 of the Criminal Law :(1) causing the basic livelihood of the worker or his dependents, dependents, or dependents to be seriously affected, and major illnesses cannot be treated in a timely manner or drop out of school; (2) using violence or making violent threats against workers who request labor remuneration; (3) causing other serious consequences.
Related Case Index
Hu Moujin's Refusal to Pay Labor Remuneration (Bulletin of the Supreme People's Court, No. 6, 2015)
Highlights of the Case
1. Where a unit or individual (contractor) who does not have the qualifications of the main body of employment illegally employs workers and refuses to pay the remuneration of the worker, the amount is relatively large, and the payment is still not paid after being ordered to pay by the relevant government departments, it shall be investigated for criminal responsibility for the crime of refusing to pay labor remuneration.
2. If a unit or individual (contractor foreman) who does not have the qualifications of the employing entity refuses to pay labor remuneration, even if another unit or individual advances labor remuneration for him before the criminal case is filed, it does not affect the criminal liability of the employing unit or individual (contractor) for the crime of refusing to pay labor remuneration.
Regulations
Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Refusal to Pay Labor Remuneration" and "The Supreme People's Procuratorate Issues 6 Typical Cases of Procuratorial Organs Punishing Crimes of Refusing to Pay Labor Remuneration in Accordance with Law"
Taobao purchase link
https://item.taobao.com/item.htm?ft=t&id=661476154490
Or save the picture below, open the APP to scan the code!
Pinduoduo can also scan the code to buy books!
Scan the code to follow us
See more