Larceny
what is theft
The crime of theft as stipulated in Article 264 of the Criminal Law refers to the act of stealing a relatively large amount of property owned by others for the purpose of illegal possession, or repeated theft, home burglary, theft with a murder weapon, or pickpocketing.
Elements of the crime of theft
The object of the crime of theft
1. Property possessed by others, including tangible objects, intangible objects and property interests.
2. The object of the crime of theft must be the property possessed by others, in which possession refers to actual domination and actual domination (which can also be described as de facto possession). The de facto control over the property means that the victim can control the property under normal circumstances, and there is no obstacle to the control of the property. In fact, the domination is not judged according to physical facts or phenomena, but judged according to the general concept of society.
2. Theft
Theft refers to the transfer of property owned by others to the possession of oneself or a third party (including units) against the will of the victim.
1. Theft does not have to be secret.
2. Theft is manifested in the transfer of possession, that is, the exclusion of others' domination over the property and the establishment of a new domination relationship. The transfer of possession shows a zero-sum relationship, the perpetrator obtains the possession, and the victim loses the possession of the same property.
3. Theft violates the will of the victim
Theft must be against the will of the victim (possessor). That is, the possession of the property is not transferred based on the will of the possessor or against the will of the possessor without the consent of the possessor, and the possession of others is infringed.
4. The crime of theft can only be constituted intentionally and has the purpose of illegal possession
Theft conviction
(1) The boundary between this crime and non-crime
Those who commit petty theft, who occasionally steal property due to disaster-affected living difficulties, or who are coerced to participate in theft activities without or with little or no distribution of stolen goods may not be treated as the crime of theft, and may be appropriately punished by the competent authority when necessary. Distinguish the theft of one's own home appliances or close relatives' property from the crime of theft in society. The judicial interpretation stipulates that such cases are generally not handled as crimes; if it is really necessary to investigate criminal responsibility, the handling should also be different from the crimes committed in the society.
According to the provisions of the judicial interpretation, although the theft of public and private property has reached the starting point of "large amount", but the circumstances are minor and one of the following circumstances occurs, it may not be regarded as a crime.
1. A minor who has reached the age of 16 but has reached the age of 18 commits a crime;
2. All loot and compensation are returned;
3. Voluntary surrender;
4. Those who are coerced into participating in theft activities and fail to share the stolen goods or receive less stolen goods;
5. Other circumstances are minor and the harm is not serious.
(2) Completion and attempted theft
Regarding the accomplished standard of the crime of theft, theoretically there are contact theory, transfer theory, concealment theory, loss of control theory, control theory, and loss of control and control theory. We advocate the theory of loss of control and control, that is, when the theft has caused the victim to lose control of the property, or when the perpetrator has controlled the stolen property, it is all accomplished. The victim's loss of control and the perpetrator's control are usually unified, and the victim's loss of control means the perpetrator's control. However, there are also inconsistencies between the two, that is, the victim loses control, but the perpetrator does not control the property, which should also be considered as accomplished theft, because this law aims to protect legitimate rights and interests, what is the difference between accomplished and attempted socially harmful distinctions. As far as the crime of theft is concerned, the degree of harm is not whether the perpetrator has control of the property, but whether the victim has lost control of the property. Therefore, even if the perpetrator does not control the property, as long as the victim loses control of the property, it is established that the theft has been completed, and there is no reason to treat it as an attempt. For example, for the purpose of illegal possession, the perpetrator threw other people's property from the train to the side of the remote track, intending to get off the train and then retrieve the property. Another example is that the perpetrator made illegal possession as the purpose, and hid the gold ring that others had placed in the bathroom in a hidden place, intending to take it away in the future. In this case, even if the perpetrator did not control the property for some reason later, but because the victim lost control of the property, it should be considered as a successful theft, but not as attempted. It should be noted that when determining whether the crime of theft has been accomplished or attempted, it must be judged according to the nature, shape, size of the property, the victim's possession of the property, and the behavior of the perpetrator. In the case of shoplifting, in the case of small property, the perpetrator is done when the property is tucked under his arm, in a pocket, or hidden in his bosom; but in the case of very large property, only the property can be burgled. Moving out of the store is considered a success. Another example is the theft of property in the factory. If the factory is accessible to anyone, it will be done when the property is moved out of the original warehouse and workshop; if the access to the factory is very strict, and the gate must be checked, the only thing to do is move the property out of the gate. It is accomplished. Another example is the theft of the indirect principal, if the exploited person controls the property, even if the user has not yet controlled the property, it should be regarded as a success. In our opinion, the point of view that the actual control of property by the perpetrator is the standard of fulfillment, overemphasizes the subjective malignancy of the perpetrator, but underestimates the protection of legitimate rights and interests; overemphasizes the form of theft, but underestimates the nature of theft Nature.
(3) The boundary between this crime and other crimes and illegal acts
1. The theft of radio and television facilities and public telecommunication facilities is not of great value, and does not belong to repeated theft, home theft, theft with a murder weapon, or pickpocketing, but endangering public safety shall be convicted and punished in accordance with the provisions of Article 124 of the Criminal Law; theft of radio Where television facilities and public telecommunication facilities simultaneously constitute the crime of theft and the crime of destroying radio and television facilities and public telecommunication facilities, it shall be considered a co-opetition and shall be punished as a felony. If the theft of electrical equipment in use constitutes the crime of theft and the crime of destroying electrical equipment at the same time, it shall be dealt with as imagined co-operation.
2. For the theft of guns, ammunition, explosives, and dangerous substances objectively, as long as the perpetrator realizes that the objects may be guns, ammunition, explosives, or dangerous substances, the crime of stealing guns, ammunition, explosives, and dangerous substances is established. On the contrary, failing to recognize that the object may be firearms, ammunition, explosives, or dangerous substances can only be identified as theft.
3. Stealing a motor vehicle and causing the loss of the vehicle shall be convicted and punished for the crime of theft. In order to steal other property, the value of the stolen vehicle shall be included in the amount of theft if the vehicle is stolen after being used as a criminal tool and then the vehicle is illegally possessed, or the vehicle is abandoned and lost. In order to commit other crimes, those who steal a motor vehicle as a tool of crime and then illegally occupy the vehicle, or abandon the vehicle and lose it, shall be punished for the crime of theft and other crimes; those who return the vehicle in time shall be punished according to the other crimes committed by it. Heavily punished.
4. Whoever steals public or private property by destructive means and causes damage to other property shall be punished severely for the crime of theft; if it constitutes the crime of theft and other crimes at the same time, it shall be dealt with according to imagination; If the destruction of other property constitutes a crime, the crime of theft and other crimes constituted shall be punished together; if the theft does not constitute a crime, but the destruction of property constitutes another crime, it shall be convicted and punished for other crimes. Stealing a motor vehicle and causing damage to the vehicle, which does not constitute the crime of theft, shall be convicted and punished in accordance with the provisions of Article 275 of the Criminal Law.
5. After the perpetrator steals the certificate of creditor's rights such as the registered deposit certificate, but does not defraud to receive cash or other property, it is impossible to be identified as the crime of fraud.
6. After stealing someone else's mobile phone, using someone else's WeChat or Alipay to shop on the machine, or transferring the "money" from someone else's WeChat or Alipay to one's own WeChat or Alipay, there are two thefts. The latter behavior is the theft of property in WeChat and Alipay. Since there is no deception against natural persons, it can only be identified as theft. Although there are two thefts, which were originally two thefts, but the amount of thefts is calculated together, and it can be identified as one theft.
7. If the act of stealing trade secrets constitutes the crime of infringing trade secrets, he shall be convicted and punished in accordance with the provisions of Article 219 of the Criminal Law. Household theft, theft with a murder weapon, pick-pocketing of other people's commercial secret carriers (physical objects), if they do not meet the crime of infringing commercial secrets, the crime of theft shall be established.
Sentencing standards for theft
The Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued the "Regulations on the Standards for Determining the Amount of Theft Crime" in March 1998
1. Sentencing standards for the crime of theft where the amount of theft is relatively large and the statutory sentence is less than three years in prison:
If the amount is more than 1,000 yuan but less than 2,500 yuan, he shall be sentenced to public surveillance, criminal detention, fixed-term imprisonment of six months or a fine alone;
2,500 yuan but less than 4,000 yuan, shall be sentenced to fixed-term imprisonment of six months to one year;
4,000 yuan but less than 7,000 yuan, shall be sentenced to fixed-term imprisonment of one to two years;
Those who pay more than 7,000 yuan but less than 10,000 yuan shall be sentenced to fixed-term imprisonment of two to three years.
2. The amount of theft is huge, and the statutory sentence for the crime of theft is three to ten years in prison:
10,000 yuan but less than 17,000 yuan, shall be sentenced to three to four years in prison;
17,000 yuan but less than 24,000 yuan, shall be sentenced to four to five years in prison;
24,000 yuan but less than 31,000 yuan, shall be sentenced to five to six years in prison;
31,000 yuan but less than 38,000 yuan, shall be sentenced to six to seven years in prison;
Those who are more than 38,000 yuan but less than 45,000 yuan shall be sentenced to fixed-term imprisonment of seven to eight years;
45,000 or more but less than 52,000 yuan shall be sentenced to eight to nine years in prison;
Those who pay more than 52,000 yuan but less than 60,000 yuan shall be sentenced to fixed-term imprisonment of nine to ten years.
3. The amount of theft is particularly huge, and the sentencing standards for the crime of theft with a statutory sentence of more than 10 years of fixed-term imprisonment and life imprisonment:
60,000 yuan but less than 78,000 yuan, shall be sentenced to fixed-term imprisonment of ten to eleven years;
78,000 yuan but less than 96,000 yuan, shall be sentenced to 11 to 12 years in prison;
96,000 yuan but less than 114,000 yuan, shall be sentenced to 12 to 13 years in prison;
114,000 yuan or more but less than 132,000 yuan shall be sentenced to 13 to 14 years in prison;
132,000 yuan but less than 150,000 yuan, shall be sentenced to 14 to 15 years in prison;
150,000 yuan or more shall be sentenced to life imprisonment.
Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft by the Supreme People's Court and the Supreme People's Procuratorate
1. The theft of public and private property worth more than 1,000 yuan to 3,000 yuan is deemed to be a "large amount";
2. The theft of public and private property worth 30,000 to 100,000 yuan or more is deemed to be "a huge amount";
3. The theft of public and private property worth more than 300,000 yuan to 500,000 yuan is deemed to be "extraordinarily huge".
The higher people's courts and people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government may, based on the economic development conditions of their respective regions and taking into account the social security conditions, determine the specific amount standards to be enforced in their respective regions within the amount range specified in the preceding paragraph, and report to the Supreme People's Court, the Supreme People's Court, the Supreme People's Court, and the Supreme People's Court. Prosecutor's Office approved.
Theft standard
In January 1992, the Ministry of Public Security issued the "Notice of the Ministry of Public Security on Amending the Statistical Measures for Filing Theft Cases", which stipulates the standards for filing theft crimes:
2. The public security organs should accept, register and seriously investigate and deal with any theft cases that are reported to the police, regardless of the amount of stolen property. Among them, those who reach the standard of the amount of theft crime stipulated by the local government shall be established as a criminal case; theft by breaking a door and breaking a window, pickpocketing, theft by using tools such as knives or carrying a murder weapon, regardless of the amount of stolen property, shall be established as a criminal case; If it is obvious that a repeat offender commits the crime or that one person commits the crime multiple times, as well as other cases that do not reach the prescribed amount standard but the circumstances or consequences are relatively serious, they shall also be established as criminal cases; the rest shall be investigated and dealt with as public security cases, and if they are found to constitute criminal cases after work, they shall be promptly investigated and dealt with. a criminal case.
If the amount of theft is more than 2,000 yuan, or although the amount is less than 2,000 yuan but the circumstances or consequences are serious, it shall be regarded as a major case; if the amount of theft is more than 20,000 yuan, or although the amount is less than 20,000 yuan but the circumstances or consequences are particularly serious, it shall be regarded as an extraordinarily serious case. . Cases of personal fraud and looting of public and private property shall be implemented with reference to the above-mentioned standards for filing cases.
Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft by the Supreme People's Court and the Supreme People's Procuratorate
1. The theft of public and private property worth more than 1,000 yuan to 3,000 yuan is deemed to be a "large amount";
2. The theft of public and private property worth 30,000 to 100,000 yuan or more is deemed to be "a huge amount";
3. The theft of public and private property worth more than 300,000 yuan to 500,000 yuan is deemed to be "extraordinarily huge".
The higher people's courts and people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government may, based on the economic development conditions of their respective regions and taking into account the social security conditions, determine the specific amount standards to be enforced in their respective regions within the amount range specified in the preceding paragraph, and report to the Supreme People's Court, the Supreme People's Court, the Supreme People's Court, and the Supreme People's Court. Prosecutor's Office approved.
The Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security issued the "Regulations on the Standards for Determining the Amount of Theft Crimes" in March 1998.
1. Sentencing standards for the crime of theft where the amount of theft is relatively large and the statutory sentence is less than three years in prison:
If the amount is more than 1,000 yuan but less than 2,500 yuan, he shall be sentenced to public surveillance, criminal detention, fixed-term imprisonment of six months or a fine alone;
2,500 yuan but less than 4,000 yuan, shall be sentenced to fixed-term imprisonment of six months to one year;
4,000 yuan but less than 7,000 yuan, shall be sentenced to fixed-term imprisonment of one to two years;
Those who pay more than 7,000 yuan but less than 10,000 yuan shall be sentenced to fixed-term imprisonment of two to three years.
2. The amount of theft is huge, and the statutory sentence for the crime of theft is three to ten years in prison:
10,000 yuan but less than 17,000 yuan, shall be sentenced to three to four years in prison;
17,000 yuan but less than 24,000 yuan, shall be sentenced to four to five years in prison;
24,000 yuan but less than 31,000 yuan, shall be sentenced to five to six years in prison;
31,000 yuan but less than 38,000 yuan, shall be sentenced to six to seven years in prison;
Those who are more than 38,000 yuan but less than 45,000 yuan shall be sentenced to fixed-term imprisonment of seven to eight years;
45,000 or more but less than 52,000 yuan shall be sentenced to eight to nine years in prison;
Those who pay more than 52,000 yuan but less than 60,000 yuan shall be sentenced to fixed-term imprisonment of nine to ten years.
3. The amount of theft is particularly huge, and the sentencing standards for the crime of theft with a statutory sentence of more than 10 years of fixed-term imprisonment and life imprisonment:
60,000 yuan but less than 78,000 yuan, shall be sentenced to fixed-term imprisonment of ten to eleven years;
78,000 yuan but less than 96,000 yuan, shall be sentenced to 11 to 12 years in prison;
96,000 yuan but less than 114,000 yuan, shall be sentenced to 12 to 13 years in prison;
114,000 yuan or more but less than 132,000 yuan shall be sentenced to 13 to 14 years in prison;
132,000 yuan but less than 150,000 yuan, shall be sentenced to 14 to 15 years in prison;
150,000 yuan or more shall be sentenced to life imprisonment.
Judicial interpretation of the crime of theft
Reply of the Supreme People's Court on whether criminals who seriously disrupt social order such as intentional injury and theft can be deprived of political rights (1998.1.13 Fa Shi [1997] No. 11)
According to Article 56 of the Criminal Law, criminals who seriously disrupt social order, such as intentional homicide, rape, arson, explosion, poisoning, robbery, etc., may be additionally deprived of political rights. For intentional injury, theft, and other crimes that seriously disrupt social order, if the criminals are subjectively vicious, the circumstances of the crime are bad, and the crime is serious, they may also be deprived of political rights in accordance with the law.
The Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security "Regulations on the Standards for Determining the Amount of Theft in the Process of Railway Transportation" (1999.2.4 Public Fa [1999] No. 4)
The higher people's courts, people's procuratorates, public security departments and bureaus of all provinces, autonomous regions and municipalities directly under the Central Government, military courts and military procuratorates of the People's Liberation Army:
According to the provisions of Article 264 of the "Criminal Law", combined with the public security situation of railway transportation and the characteristics of theft cases, the standards for determining the amount of the crime of theft during railway transportation are hereby stipulated as follows:
1. Personal theft of public and private property is "large in amount", starting from one thousand yuan;
2. Personal theft of public and private property is "a huge amount", starting from 10,000 yuan;
3. Personal theft of public and private property is "a particularly huge amount", starting at 60,000 yuan.
The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration for Industry and Commerce "Regulations on Investigating and Punishing Cases of Theft and Robbery of Motor Vehicles" (1998.5.8 Gongtongzi [1998) No. 31)
In order to crack down on the criminal activities of theft and robbery of motor vehicles in accordance with the law, block the channels for theft and robbery of motor vehicle criminals to sell their stolen goods, and protect the legal property of the state, collective property and citizens,
These Provisions are formulated in accordance with the "Criminal Law of the People's Republic of China" (hereinafter referred to as the "Criminal Law"), the "Criminal Procedure Law of the People's Republic of China" (hereinafter referred to as the "Criminal Procedure Law") and other relevant laws and regulations.
1. The judicial organs investigate and deal with cases of theft and robbery of motor vehicles in accordance with the law, and any unit or individual shall provide assistance. Whoever obstructs judicial staff from handling cases in accordance with the law by means of violence or threats shall be punished in accordance with the provisions of Paragraph 1 of Article 277 of the Criminal Law.
2. Whoever conceals, transfers, purchases or sells a motor vehicle obtained by theft or robbery knowingly shall be punished in accordance with the provisions of Article 312 of the Criminal Law. Whoever dismantles, refits, assembles, pawns, or resells a motor vehicle that he knows is obtained from theft or robbery shall be deemed to be harboring, transferred, purchased or sold on his behalf, and shall be punished in accordance with the provisions of Article 312 of the Criminal Law.
3. The state-designated vehicle trading market, motor vehicle operating enterprises (including pawnshops and auction houses), and the executives or other directly responsible personnel of motor vehicle repair and parts sales enterprises, knowingly hide the stolen or robbed motor vehicle , transfer, dismantling, refitting, assembling, purchasing or selling on behalf of others, shall be punished in accordance with the provisions of Article 312 of the Criminal Law. If the unit organizes the implementation of the above-mentioned acts, it shall be punished by the industry and commerce administrative authority.
4. If the perpetrators in Articles 2 and 3 of these regulations conspire in advance with criminals who steal or rob motor vehicles, they shall be punished as accomplices of the crime of theft and robbery respectively.
5. Motor vehicle transactions must be conducted in the trading market or legal business enterprise designated by the state, and the registration or transfer procedures shall be completed after the transaction certificate has been verified and sealed by the industry and commerce administrative authority. deal with. Knowing that it is a stolen car and buying it, he will be convicted and punished for the crime of acquiring stolen goods. The person in charge of the unit or other directly responsible person knowingly purchased the stolen car shall be convicted and punished for the crime of purchasing stolen goods. Whoever introduces the purchase or sale of a stolen car knowingly will be punished as an accomplice in the crime of buying and selling stolen goods.
6. Anyone who illegally sells invoices related to motor vehicles, or forges or manufactures or sells invoices related to motor vehicles that are forged or manufactured without authorization shall be punished in accordance with the provisions of Article 209 of the Criminal Law.
7. Whoever forges, alters, or buys or sells motor vehicle license plates and relevant certification documents for the entry, transfer, and verification of motor vehicles shall be punished in accordance with the provisions of Paragraph 1 of Article 280 of the Criminal Law.
8. Public security and industry and commerce administrative personnel take advantage of their positions to solicit or illegally accept other people's property, which constitutes a crime for the entry, transfer or verification of stolen vehicles, according to Articles 385 and 38 of the Criminal Law Penalties stipulated in Article 16.
9. Public security, industry and commerce administrative personnel or other state organ staff who abuse their powers, neglect their duties, or commit fraud, resulting in the entry, transfer, or verification of stolen vehicles, shall be given administrative sanctions; resulting in heavy losses to public property, the state and the people's interests , shall be punished in accordance with the provisions of Article 397 of the Criminal Law.
10. Public security personnel who illegally provide motor vehicle licenses or provide convenience for obtaining motor vehicle licenses for stolen or robbed motor vehicles to help criminals evade punishment shall be punished in accordance with Article 417 of the Criminal Law.
11. Motor vehicles obtained from theft or robbery by criminals and their sale prices shall be recovered in accordance with the provisions of Article 64 of the Criminal Law.
12. If a vehicle is purchased knowingly that it is stolen, the vehicle shall be recovered for free; if a vehicle is purchased in violation of state regulations and is verified to be a stolen vehicle, the public security organ may, in accordance with Article 110 and Article 1 of the Criminal Procedure Law. Article 114 provides for recovery and seizure. If the car is purchased without knowing it is stolen, it will be returned to the buyer after the case is closed.
13. For those who use illegally provided household registration and transfer procedures or use forged or altered household registration and transfer procedures for stolen vehicles after purchasing stolen vehicles, the license shall be revoked and the vehicle shall be recovered for free; Whoever sells the household or transfer vehicle shall recover the sale proceeds and order compensation for economic losses.
14. For motor vehicles that have been stolen or robbed directly recovered from criminals, after inspection and identification, after verification, they can be returned to the owner in accordance with the law, and a list, photos and other evidence are attached when the case is transferred. Before returning it to the owner, it shall be managed in accordance with the provisions on the management of stolen goods, and no unit or individual may misappropriate, destroy or dispose of it by themselves.
15. In the case of theft or robbery of motor vehicles, the public security organ in the place where the case occurred shall file a case for investigation, and the public security organ in the place where the stolen vehicle flows into shall cooperate. A series of cross-regional theft and robbery cases of motor vehicles shall be filed for investigation by the public security organ that initially accepted the case; when necessary, the case may be filed and investigated by the public security organ at the place where the major crime was committed, or a case designated by a higher-level public security organ.
16. The stolen or robbed motor vehicles seized or assisted by the jurisdictional units to be recovered by the local public security organs shall be transferred to the jurisdictional units for handling in accordance with the law, and shall not be detained or charged for any reason. If the payment is delayed, administrative sanctions will be given to the leader of the unit.
17. "Knowingly" as mentioned in these Regulations means knowing or ought to know. Anyone who falls under any of the following circumstances shall be deemed to have known, unless there is evidence to prove that he has been deceived:
(1) Purchased at illegal motor vehicle trading places and sales units;
(2) The motor vehicle certificate procedures are incomplete or the regulations are obviously violated;
(3) The engine number or frame number of the motor vehicle has traces of change, and there is no legal proof;
(4) Buying a motor vehicle at a price significantly lower than the market price.
18. These regulations shall be implemented from the date of promulgation. The investigation and punishment of cases of occupation, robbery and fraud of motor vehicles shall be handled with reference to the principles of these regulations. For cases that have not been settled after the promulgation of these Provisions, these Provisions shall apply.
Interpretation of the Supreme People's Court on Issues Concerning the Specific Application of Law in the Trial of Criminal Cases by Units (1999.6.25 Fa Shi [1999] No. 14)
In order to punish the criminal activities of units in accordance with the law, in accordance with the relevant provisions of the Criminal Law, the relevant issues concerning the specific application of law in the trial of criminal cases by units are hereby interpreted as follows:
Article 1 "Companies, enterprises and institutions" as stipulated in Article 30 of the Criminal Law include both state-owned and collectively-owned companies, enterprises and institutions, as well as legally established joint ventures, cooperative enterprises and sole proprietorships with legal personality. , private companies, enterprises, institutions.
Article 2 Where a company, enterprise, or institution established by an individual for the purpose of carrying out illegal and criminal activities commits a crime, or if a company, enterprise, or institution is established and its main activity is to commit a crime, it shall not be punished as a unit crime.
Article 3 Where a crime is committed by misappropriating the name of a unit, and the illegal gains are privately shared by the individual committing the crime, the crime shall be convicted and punished in accordance with the provisions of the Criminal Law on crimes committed by natural persons.
The Supreme People's Court "Minutes of the National Courts' Symposium on Safeguarding Rural Stability in Criminal Trials" (1999.10.27 Law [1999] No. 217)
(2) About theft cases
The key to combat is: the theft of agricultural production materials and contracted management of mountain forests, fruit forests, fish pond products and other crimes that seriously affect and destroy rural economic development; the theft of farmers' living materials, crimes that seriously affect farmers' lives and social stability; gang theft, Theft group and the crime of stealing, transporting and selling one-stop; the crime of stealing railways, oil fields, and key engineering materials. The ringleaders of the theft group, repeat offenders, repeat offenders, and theft activities that cause particularly serious consequences shall be severely punished in accordance with the law. Those who steal cattle, horses, mules, tractors and other production and business tools or production materials shall be severely punished according to law. For first-time offenders or juvenile offenders of the crime of theft, or committing the crime of theft due to difficulties in life, or actively returning stolen goods or compensating for losses, attention should be paid to the implementation of policies, and lenient punishments should be given as appropriate. Among them, if the conditions for sentenced to control, fine or suspended sentence are met, control, fine or suspended sentence shall be applied as far as possible according to different situations.
The “household” in Article 4 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases refers to the living place where the family and its members are relatively isolated from the outside world, including closed courtyards, Houses rented by families, tents for herdsmen, and fishing boats for fishermen as a place for family life, etc. A place that integrates living and business operations is generally not regarded as a "household" during the business hours.
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases Disrupting the Administrative Order of the Telecommunications Market (2000.5.12 Fa Shi [2000] No. 12)
Article 7 Whoever illegally recharges a telecommunications card and then uses it, resulting in a relatively large amount of loss of telecommunications charges, shall be convicted and punished for the crime of theft in accordance with the provisions of Article 264 of the Criminal Law.
Article 8 Whoever steals other people's public information network Internet access account numbers and passwords to access the Internet and causes other people's telecommunication charges to lose a relatively large amount shall be convicted and punished for the crime of theft in accordance with the provisions of Criminal Law Article 264.
Article 10, Paragraph 2, the term "loss of telecommunications tariffs" as mentioned in this Interpretation refers to the multiplication of the total time (minutes) of the perpetrator's illegal operation of international telecommunications business or telecommunications business involving Hong Kong, Macao and Taiwan by the amount that my country should receive in the legal telecommunications business. The amount derived from the international settlement price per minute.
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Destruction of Forest Resources (2000.11.22 Fa Shi [2000] No. 36)
Article 9 Whoever steals trees owned by the state, collectives, or others that have fallen down on their behalf, as well as stealing and cutting down scattered trees in front of and behind other people's houses, or planted in private plots, if the amount is relatively large, shall be subject to Article 264 of the Criminal Law. The provisions of the crime of theft convicted and punished.
Article 15 Those who illegally carry out such acts as seed harvesting, fat harvesting, bamboo shoot excavation, root excavation, and bark peeling in order to obtain a relatively large amount of economic benefits. According to the provisions of Article 264 of the Criminal Law, the crime of theft shall be convicted and punished. If other crimes are constituted at the same time, they shall be convicted and punished in accordance with the provisions on heavier punishment.
Supreme People's Court and Supreme People's Procuratorate Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft (Fa Shi [2013] No. 8)
In order to punish criminal activities of theft and protect public and private property in accordance with the law, in accordance with the relevant provisions of the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China, several issues concerning the application of law in handling criminal cases of theft are hereby interpreted as follows:
Article 1 Whoever steals public or private property worth more than 1,000 yuan to more than 3,000 yuan, 30,000 yuan to more than 100,000 yuan, or 300,000 yuan to more than 500,000 yuan shall be identified as the provisions of Article 264 of the Criminal Law. "A large amount", "A huge amount", "A particularly huge amount".
The higher people's courts and people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government may, based on the economic development conditions of their respective regions and taking into account the social security conditions, determine the specific amount standards to be enforced in their respective regions within the amount range specified in the preceding paragraph, and report to the Supreme People's Court, the Supreme People's Court, the Supreme People's Court, and the Supreme People's Court. Prosecutor's Office approved.
If the theft is carried out on public transport running across regions, and the location of the theft cannot be verified, whether the amount of the theft reaches a "large amount", "a huge amount" or "a particularly huge amount" shall be determined according to the senior people of the province, autonomous region or municipality directly under the Central Government where the case is accepted. Relevant amount standards determined by courts and people's procuratorates.
Theft of drugs and other contraband shall be handled as the crime of theft, and shall be punished lightly and severely according to the circumstances.
Article 2 Where the theft of public or private property falls under any of the following circumstances, the standard of "larger amount" may be determined by 50% of the standard prescribed in the preceding article:
(1) Those who have received criminal punishment for theft;
(2) Those who have received administrative punishment for theft within one year;
(3) Organizing and controlling the theft of minors;
(4) During the period of natural disasters, accident disasters, social security incidents and other emergencies, stealing from the place where the incident occurred;
(5) Stealing the property of the disabled, the elderly with widowhood, and those who have lost the ability to work;
(6) Stealing property of patients or their relatives and friends in the hospital;
(7) Stealing funds and materials for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, and relief;
(8) Serious consequences caused by theft.
Article 3 Whoever steals more than three times within two years shall be deemed as "multiple theft".
Anyone who illegally enters and steals a residence that is relatively isolated from the outside world for other people's family life shall be deemed as "household theft".
Carrying guns, explosives, controlled knives and other equipment that is prohibited by the state from being carried by individuals, or carrying other equipment that is sufficient to endanger the personal safety of others for the purpose of committing a crime, shall be deemed to be "theft with a murder weapon".
Stealing other people's belongings in public places or public transport shall be deemed as "pickpocketing".
Article 4 The amount of theft shall be determined according to the following methods:
(1) If the stolen property has a valid price certificate, it shall be determined according to the valid price certificate; if there is no valid price certificate, or it is determined that the amount of the stolen property is obviously unreasonable according to the price certificate, an evaluation agency shall be entrusted to evaluate it in accordance with relevant regulations;
(2) If a foreign currency is stolen, the calculation shall be converted into RMB according to the central parity rate of RMB announced by the China Foreign Exchange Trade System or an institution authorized by the People's Bank of China at the time of the theft; For foreign currency, convert it into RMB according to the central parity of the domestic bank RMB against the currency at the time of theft, or the exchange rate of the currency against the U.S. dollar in the domestic bank and the international foreign exchange market shall be calculated with the central parity of the RMB against the U.S. dollar;
(3) Stealing properties such as electricity, gas, tap water, etc., if the amount of theft can be verified, the amount of theft shall be calculated according to the verified amount; if the amount of theft cannot be verified, the average monthly consumption for the six months prior to the theft minus the amount displayed on the meter after theft The amount of theft is calculated by the average monthly consumption; if the normal use is less than six months before the theft, the amount of theft is calculated by subtracting the average monthly consumption during the normal use period minus the monthly average consumption displayed by the meter after the theft;
(4) If it is known that it is used by stealing other people's communication lines or copying other people's telecommunications equipment or facilities, the amount of theft shall be determined according to the fees paid by the legitimate user; The amount of theft is calculated by subtracting the monthly average telephone bill for the six months before the stolen connection and copying from the monthly payment amount after the stolen connection and copying; if the legitimate user uses the telecommunication equipment and facilities for less than six months, the actual monthly average telephone number will be calculated according to the Fee to calculate the amount of theft;
(5) In case of stealing another person's communication line or copying another person's telecommunication code number for sale, the amount of theft shall be determined according to the amount of stolen goods sold.
If the loss caused by the theft to the owner is greater than the amount of theft, the amount of loss may be considered as the circumstances of sentencing.
Article 5 In case of theft of valuable payment vouchers, marketable securities or negotiable instruments, the amount of theft shall be determined according to the following methods:
(1) For the theft of unregistered and non-reported loss-of-value vouchers, securities, and negotiable instruments, the amount of theft shall be calculated based on the face value and the profits, bonuses or prizes that should be obtained at the time of the theft;
(2) Stealing registered valuable payment vouchers, negotiable securities, and negotiable papers, which have been cashed, the amount of the theft shall be calculated according to the value of the cashed part; if it is not cashed, but the owner cannot avoid it by reporting the loss, reclaiming it, or going through the procedures for refilling it. In case of loss, the amount of theft shall be calculated according to the actual loss caused to the owner.
Article 6 Theft of public or private property falls under any of the circumstances specified in Items 3 to 8 of Article 2 of this Interpretation, or theft from a home or carrying a murder weapon, and the amount reaches the "huge amount" or "amount of money" stipulated in Article 1 of this Interpretation. "Extraordinarily huge" 50% can be identified as "other serious circumstances" or "other particularly serious circumstances" as stipulated in Article 264 of the Criminal Law.
Article 7 If the amount of the theft of public or private property is relatively large, the perpetrator pleads guilty, repents, returns the stolen goods or compensates, and falls under any of the following circumstances, if the circumstances are minor, the prosecution may not be prosecuted or criminal punishment may be waived; if necessary, administrative punishments shall be imposed by the relevant departments :
(1) There are statutory circumstances for lenient punishment;
(2) Those who did not participate in the distribution of stolen goods or received less stolen goods and were not the principal offender;
(3) The victim understands;
(4) Other circumstances where the circumstances are minor and the harm is not serious.
Article 8 Those who steal the property of family members or close relatives and obtain forgiveness may generally not be considered a crime; those who are investigated for criminal responsibility shall be lenient as appropriate.
Article 9 Whoever steals general cultural relics, third-level cultural relics, and second-level or higher cultural relics from state-owned museums shall be identified as "a relatively large amount", "a huge amount" and "a particularly huge amount" as stipulated in Article 264 of the Criminal Law.
If multiple pieces of cultural relics held by state-owned museums of different levels are stolen, three pieces of cultural relics of the same level can be regarded as one cultural relic of a higher level.
If the cultural relics collected by the people are stolen, the amount of the theft shall be determined according to the provisions of Article 4, Paragraph 1, Item 1 of this Interpretation.
Article 10 Anyone who steals another person's motor vehicle shall be dealt with in accordance with the following provisions:
(1) Those who steal a motor vehicle and cause the loss of the vehicle shall be convicted and punished for the crime of theft;
(2) In order to steal other property, the value of the stolen vehicle shall be included in the amount of theft if the vehicle is stolen after being used as a criminal tool and then the vehicle is illegally possessed, or the vehicle is abandoned and lost;
(3) For the purpose of committing other crimes, those who steal a motor vehicle as a tool of crime and then illegally possess the vehicle, or abandon the vehicle and cause loss, shall be punished for the crime of theft and other crimes; if the vehicle is returned without causing loss, it shall be punished according to its Other crimes committed are subject to severe penalties.
Article 11 Whoever steals public or private property and causes property damage shall be dealt with in accordance with the following provisions:
(1) Whoever steals public or private property by destructive means, causing damage to other property, shall be given a heavier punishment for the crime of theft; if the crime of theft and other crimes are constituted at the same time, one serious crime shall be given a heavier punishment;
(2) After committing the crime of theft, for the purpose of covering up the crime or retaliation, etc., intentionally destroying other property constitutes a crime, the crime of theft and other crimes constituted shall be punished together for several crimes;
(3) Where the theft does not constitute a crime, but the damage to property constitutes other crimes, it shall be convicted and punished for other crimes.
Article 12 Where an attempted theft falls under any of the following circumstances, criminal responsibility shall be investigated according to law:
(1) Targeting the theft of a huge amount of property;
(2) Targeting the theft of precious cultural relics;
(3) Other circumstances where the circumstances are serious.
Theft is both accomplished and attempted, and if they reach different sentencing ranges, they shall be punished in accordance with the provisions on the heavier punishment; those who reach the same sentencing range shall be punished as accomplished theft.
Article 13 Where a unit organizes or instigates theft and complies with Article 264 of the Criminal Law and the relevant provisions of this Interpretation, the organizer, instigator, and direct perpetrator shall be held criminally responsible for the crime of theft.
Article 14 If a person is sentenced to a fine according to law for committing the crime of theft, the fine shall be not less than 1,000 yuan but not more than twice the amount of the theft; fined.
Article 15 After this Interpretation is promulgated and implemented, the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases (Fa Shi [1998] No. 4) shall be repealed at the same time; the judicial interpretations and normative documents previously issued are the same as this Interpretation. In case of inconsistency, this interpretation shall prevail.
"Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues concerning the Application of Law in Handling Criminal Cases such as theft of Oil and Gas and Destruction of Oil and Gas Equipment" (Fa Fa [2018] No. 18)
In order to punish crimes such as theft of oil and gas and destruction of oil and gas equipment in accordance with the law, and to maintain public security, energy security and ecological security, in accordance with the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China and the Supreme People's Court and the Supreme People's Procuratorate The Interpretation of Several Issues Concerning the Specific Application of the Law in Criminal Cases such as Destruction of Oil and Gas Equipment" and other legal and judicial interpretations, this opinion is formulated in light of the actual work.
I. Identification of endangering public safety
In the course of carrying out acts such as stealing oil and gas, destroying the oil and gas equipment in use under any of the following circumstances shall be deemed as "endangering public security" as stipulated in Article 118 of the Criminal Law:
(1) Cutting, punching, prying, or dismantling means are used, except those that obviously do not endanger public safety;
(2) The use of means such as opening and closing is sufficient to cause dangers such as fire and explosion.
2. Criminal liability for attempted theft of oil and gas
If the act of stealing oil and gas fails to succeed due to reasons other than will, and one of the following circumstances occurs, criminal responsibility shall be investigated for the crime of theft (attempted):
(1) Targeting the theft of a huge amount of oil and gas;
(2) The oil and gas have been packed into packages or means of transport, reaching more than three times the standard of "large amount";
(3) Carrying cutting, punching, prying, or dismantling tools such as oil-stealing clips, hand drills, electric drills, and electric welding torches;
(4) Other circumstances where the circumstances are serious.
3. Identification of accomplices
In the crime of jointly stealing oil and gas, destroying oil and gas equipment, etc., who actually controls, contributes as the main capital, or organizes, plans, gathers, employs, or instigates others to participate in the crime, it shall be identified as the principal offender according to law; for other persons, they shall play a major role in the joint crime. should also be identified as the principal offender in accordance with the law.
If the valve is installed without authorization before the oil and gas pipeline is put into use, and the valve is provided to others to steal oil and gas after the pipeline is put into use, it will be punished as a common crime of theft, the crime of destroying inflammable and explosive equipment and other related crimes.
4. Handling of acts of internal and external collusion to steal oil and gas
If the perpetrator colluded with the personnel of the oil and gas enterprise to jointly steal oil and gas, and did not take advantage of the position of the personnel of the oil and gas enterprise, but only took advantage of the convenient conditions such as easy access to oil and gas equipment and familiarity with the environment, it shall be punished as a joint crime of theft.
Whoever commits the above acts and at the same time constitutes the crime of destroying inflammable and explosive equipment shall be convicted and punished in accordance with the provisions on heavier punishment.
V. Handling of acts of harbouring, transferring, acquiring, processing and selling stolen oil and gas on behalf of others
Whoever conceals, transfers, purchases, processes, sells on behalf of, or otherwise conceals or conceals the oil and gas obtained from crime knowingly is in compliance with the provisions of Article 312 of the Criminal Law, shall be investigated for criminal responsibility for the crime of concealing or concealing the proceeds of crime.
The determination of "knowingly" shall be comprehensively considered in consideration of the perpetrator's cognitive ability, remuneration, means of transportation, transportation route, purchase price, purchase form, processing method, sales location, storage conditions, and other factors.
Whoever commits the criminal acts stipulated in the first paragraph and conspires beforehand shall be punished as the joint crime of related crimes such as the crime of theft, the crime of destroying inflammable and explosive equipment, etc.
6. Determination of Direct Economic Loss
"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 of Oil and Gas Theft and Destruction of Oil and Gas Equipment" Article 2, Item 3, "direct economic loss" includes the direct economic losses caused by the theft of oil and gas and other acts. The cost of oil and gas loss and measures such as emergency repair and plugging.
The amount of direct economic loss shall be determined based on the evidence materials provided by the oil and gas enterprise, the defenses and defense opinions put forward by the criminal suspect, the defendant and their defenders; if it is difficult to determine, it shall be determined based on the report issued by the price certification agency in combination with other evidence.
The evidence materials provided by the oil and gas enterprise shall have the signature of the staff member and the official seal of the enterprise.
7. Determination of Special Issues
For specialized issues such as the quality and standards of oil and gas, the evidence materials provided by the oil and gas enterprises, the defenses and defense opinions put forward by the criminal suspects, defendants and their defenders shall be identified; if it is difficult to determine, the identification shall be based on the identification opinions issued by forensic identification institutions or The report issued by the agency designated by the public security department of the State Council shall be determined in combination with other evidence.
The evidence materials provided by the oil and gas enterprise shall have the signature of the staff member and the official seal of the enterprise.
"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 Related to Theft, Robbery, Fraud and Seizure of Motor Vehicles" Law Interpretation [2007] No. 11
In order to punish criminal activities related to theft, robbery, fraud, and seizure of motor vehicles in accordance with the law, in accordance with the provisions of the Criminal Law, the Criminal Procedure Law and other relevant laws, several issues concerning the specific application of law in handling such cases are hereby explained as follows:
Article 1 Whoever knowingly commits any of the following acts of a motor vehicle that is stolen, robbed, defrauded or robbed shall be convicted of the crime of disguising or concealing the proceeds of crime and the proceeds of crime in accordance with the provisions of Article 312 of the Criminal Law, and shall be sentenced to three fixed-term imprisonment, criminal detention or public surveillance, and concurrently or only fined:
(1) buying, selling, introducing buying and selling, pawning, auctioning, mortgaging or using it to offset debts;
(2) disassembled, assembled or assembled;
(3) Modifying the engine number and vehicle identification number;
(4) Changing the color of the body or the shape of the vehicle;
(5) Providing or selling motor vehicle source certificates, vehicle qualification certificates, license plates and other certificates and vouchers related to motor vehicles;
(6) Providing or selling forged or altered motor vehicle source certificates, vehicle qualification certificates, license plates and other certificates and vouchers related to motor vehicles.
Whoever commits the acts prescribed in the first paragraph involving theft, robbery, fraud, or seizure of five or more motor vehicles or whose total value is more than 500,000 yuan shall fall into the category of "serious circumstances" as prescribed in Article 312 of the Criminal Law, and shall be sentenced to three imprisonment for not less than seven years and a fine.
Article 2 Whoever forges, alters, or buys or sells motor vehicle driving licenses and registration certificates, accumulatively three or more copies, shall be convicted of the crime of forging, altering, or buying or selling state agency certificates in accordance with the provisions of Paragraph 1 of Article 280 of the Criminal Law. shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.
Whoever forges, alters, or buys or sells motor vehicle driving licenses or registration certificates, and accumulatively reaches five times or more of the quantity standard specified in the first paragraph, falls under the "serious circumstances" as stipulated in the first paragraph of Article 280 of the Criminal Law, and shall be sentenced to not less than three years. imprisonment for not more than ten years.
Article 3 If the staff of state organs abuses their powers and has any of the following circumstances, causing the motor vehicles to be stolen, robbed, defrauded, or robbed to be registered, and the number of motor vehicles reaches three or more or the total value reaches more than 300,000 yuan, the criminal law shall According to the first paragraph of Article 397, a person convicted of the crime of abuse of power shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention:
(1) Going through the registration formalities knowingly that it is a motor vehicle whose registration formalities are incomplete or does not meet the requirements;
(2) Instructing others to go through the registration formalities for a motor vehicle that clearly knows that the registration formalities are incomplete or that it does not meet the requirements;
(3) Violating or instigating others to change or exchange vehicle files in violation of regulations;
(4) Other acts of abuse of power.
If the staff of state organs neglect or lax the examination, resulting in the registration of stolen, robbery, defrauded or robbed motor vehicles, the number of which reaches five or more or the total value of which reaches more than 500,000 yuan, the criminal law shall be subject to Article 39 of the Criminal Law. Article 17, paragraph 1, convicted of dereliction of duty shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
If the staff of state organs carry out the acts prescribed in the preceding two paragraphs, resulting in the registration of motor vehicles stolen, robbed, defrauded, or robbed, the number and the amount standard respectively reached five times or more as prescribed in the preceding two paragraphs, or they know that they are theft, robbery, or robbery. Whoever goes through the registration formalities for a motor vehicle that has been defrauded or robbed falls under the "particularly serious circumstances" stipulated in the first paragraph of Article 397 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
If the staff of state organs practice favoritism and fraud and commit the above-mentioned acts, which constitutes a crime, they shall be convicted and punished in accordance with the provisions of the second paragraph of Article 397 of the Criminal Law.
Article 4 Whoever commits the acts prescribed in Article 1, Article 2, Paragraph 1 or 3 of Article 3 of this Interpretation and conspiring with criminals who steal, rob, defraud, or snatch motor vehicles in advance shall be charged with the crime of theft, Accomplices of robbery, fraud, and robbery shall be punished.
Article 5 For acts of theft, robbery, fraud, robbery, covering up or concealing criminal proceeds and proceeds of crime involving the same motor vehicle committed across regions, the relevant public security organs may jointly file a case for investigation in accordance with laws and relevant regulations, and need to submit a request for approval to arrest. , transfer for review and prosecution, or initiate a public prosecution, it shall be accepted by the people's procuratorate or people's court at the same level where the public security organ is located.
Article 6 If the perpetrator commits the acts specified in Article 1 and Paragraph 3 of Article 3 of this Interpretation, and the motor vehicle involved has any of the following circumstances, it shall be determined that the perpetrator subjectively belongs to the "knowing" mentioned in the above-mentioned clauses:
(1) There is no legal and valid source certificate;
(2) The engine number and vehicle identification number have obvious signs of change, and there is no legal proof.
盗窃罪辩护词
