Guangze County People's Court of Fujian Province
Criminal Judgment
(2016) Min 0723 Min 77
Public Prosecutor's Office Guangze County People's Procuratorate.
The defendant Wang Liqiang, male, was born on April 18, 1993 in Guangze County, Fujian Province. He is a Han nationality, a university student, a student, and lives in Guangze County, Fujian Province. Suspected of fraud, he was detained on March 4, 2016 and released on bail on March 10, the same year.
The defender, Lin Xiangyun, is a lawyer of Fujian Jianhua Law Firm.
The People's Procuratorate of Guangze County accused the defendant Wang Liqiang of fraud by indicting Guangjian Gongxue (2016) No. 74 and filed a public prosecution with the court on September 28, 2016. After the case was filed and accepted, the court applied simplified procedures in accordance with the law and implemented independence. The trial was held on October 14, 2016. The People's Procuratorate of Guangze County appointed the acting prosecutor Liu Shiwei to appear in court to support the prosecution. The defendant Wang Liqiang and his defender Lin Xiangyun attended the lawsuit and the trial has now ended.
The public prosecution office accused that in June 2015, the defendant Wang Liqiang knew the victim Gao Moumou through his girlfriend Chu Moumou and obtained his trust. In July 2015, Wang Liqiang heard that Gao Moumou was handling the school matters of his son and daughter, so Wang Liqiang was able to help Gao Moumou to manage the son and daughter's school affairs, but he needed to spend money on the relationship to deceive Gao Moumou. RMB 25,000. In August 2015, Wang Liqiang cheated Gao Mou for RMB 130,000 in the name of helping Gao Mou to buy stocks. Later, due to Gao Mou's dunning, Wang Liqiang returned Gao Moumo to RMB 35,000.
After the crime, the defendant Wang Liqiang took the initiative to submit to the public security organ, truthfully confessed his crime, and fully refunded the loss of the victim Gao Moumou, and obtained the victim's understanding.
It was also found that the Guangze County People's Procuratorate commissioned the Guangze County Judicial Bureau to conduct a pretrial social investigation of the defendant Wang Liqiang during the review and prosecution stage, and the assessment opinion issued by the Guangxi County Judicial Bureau recommended the application of community corrections.
The above facts, the defendant Wang Liqiang also had no objection during the trial, and there were explanation materials, notice of evidence retrieval, bank transaction details, securities account inquiry records, understandings, household registration certificates, investigation and evaluation opinions, and witness Huang The testimony transcripts of Mr. Chu, Moumou, Wang Liqiang, etc., the statement transcripts of the victims Gao Moumou, Gui Moumou, etc., and the defendant's confession transcripts were confirmed to be sufficient.
This court believes that the defendant Wang Liqiang used falsified facts and concealed the truth for the purpose of illegal possession, defrauding other people's property for a total of RMB 120,000, the amount of fraud was huge, and his behavior has constituted a crime of fraud. Investigate the criminal responsibility of the defendant.
The public prosecutor's office recommended that the defendant Wang Liqiang be sentenced to imprisonment for one year, three months to nine months, and fines based on the facts, circumstances and the degree of harm to the society of the defendant Wang Liqiang. This court believes that the defendant Wang Liqiang surrendered to the public security organ after the case, actively reimbursed the victim for loss, and obtained the victim's understanding. This court can reduce the punishment of the defendant according to law. The public prosecution's sentencing proposal is appropriate and this court will accept it. The defender Lin Xiangyun proposed that the defendant Wang Liqiang is a first-time offender and an incidental offender, who has surrendered, actively reimbursed the victim for all losses, and obtained the victim's understanding, and requested the court to exempt Wang Liqiang from criminal punishment or give a single penalty. This court believes that the defendant Wang Liqiang's fraud amounted to RMB 120,000, which is huge and cannot be punished alone according to law. At the same time, it does not comply with Article 3 of the Supreme People's Court and the Supreme People's Procuratorate's Interpretation of Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud. Regarding the "no prosecution or exemption from criminal punishment" provision, the defense opinions of the defenders were not accepted by this court. After a pre-trial social survey, Wang Liqiang usually performed well and met the applicable conditions of community correction. This court comprehensively considered the above circumstances, mitigated the defendant's punishment according to law, and applied probation. Now in accordance with Article 266, Article 67, Paragraph 1, Article 52, Article 53 Paragraph 1, Article 72 Paragraphs 1 and 3 of the Criminal Law of the People's Republic of China The provisions of Article 73, paragraphs 2 and 3, are as follows:
The defendant, Wang Liqiang, was guilty of fraud and sentenced to one year and three months in prison, a suspended sentence of one year and six months, and a fine of 10,000 yuan.
The probation period is calculated from the date of the judgment; the penalty is paid within ten days after the judgment becomes effective.
If you do not accept this judgment, you can appeal through Nanning Intermediate People's Court through this court or directly within ten days after receiving the judgment. For a written appeal, one original and two copies of the appeal should be submitted.
Zhang Shaohua
October 14, 2016
Wu Jixian
The main legal provisions on which this case is based
Article 266 of the Criminal Law of the People's Republic of China: Fraud of public and private property, if the amount is large, shall be sentenced to fixed-term imprisonment of not more than three years, detention or control, and a single fine; Imprisoned for a term of not less than three years but not more than ten years and fined; ...
Article 67, paragraph 1: Automatically commit a crime after committing a crime. If you truthfully confess your crime, you will surrender. Criminals who surrender can be given a lighter or lighter punishment. Where crimes are relatively minor may be exempted from punishment.
Article 52: The penalty shall be determined according to the circumstances of the crime.
Article 53 (1): The penalty shall be paid once or in installments within the period specified in the judgment. If the payment is not made within the time limit, the payment shall be compulsory. For those who cannot fully pay the fines, the people's court shall, at any time, find that the person subject to execution has property that can be enforced, and shall pay back at any time.
Paragraph 1 of Article 72: For criminals sentenced to detention and serving a term of less than three years, if they meet the following conditions at the same time, a suspended sentence may be declared. Among those who are under the age of eighteen, pregnant women and those who have reached seventy A five-year-old should declare a probation: (1) the crime is relatively minor; (2) there is a manifestation of remorse; (3) there is no danger of recidivism; (4) the probation has no significant adverse impact on the community in which he lives.
Paragraph 3: If the probationer is sentenced to an additional sentence, the additional sentence must still be executed.
Article 73, paragraph 2: The probation period for a term of imprisonment is from the original sentence to five years but not less than one year.
Paragraph 3: The probation period shall be calculated from the date of the decision.
Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud: Although fraudulent public and private property has reached the "larger amount" standard stipulated in Article 1 of this interpretation, it has the following circumstances One, and the actor pleads guilty or repents, may not prosecute or be exempted from criminal punishment in accordance with Article 37 of the Criminal Law and Article 142 of the Criminal Procedure Law:
(1) having statutory leniency circumstances;
(2) All the stolen goods and compensation are returned before the first judgment is pronounced;
(3) Those who have not participated in the sharing of the stolen goods or obtained less of them and are not the principal offenders;
(4) The victim understands;
(5) Other circumstances are minor and harmless.
