Article 264 Theft of public or private property, the amount of larger or repeated theft, shall be sentenced to less than three years of fixed-term imprisonment, detention or control, and or a single fine; the amount of huge or other serious circumstances, shall be sentenced to more than three years of fixed-term imprisonment of less than 10 years, and shall be punished with a fine; the amount of particularly huge or other particularly serious circumstances, shall be sentenced to more than 10 years of fixed-term imprisonment or life imprisonment, and shall be punished with a fine or confiscation of property; the amount of particularly huge or other particularly serious circumstances, shall be sentenced to more than 10 years of fixed-term imprisonment or life imprisonment. and a fine or confiscation of property; in one of the following cases, shall be sentenced to life imprisonment or death penalty, and confiscation of property: (1) theft of financial institutions, the amount of which is particularly large; (2) theft of precious cultural relics, the circumstances are serious.
Judicial practice to determine the crime, should pay attention to the following issues:
1 The perpetrator of the act of secret theft is the premise of the crime of theft, but also the crime and robbery, robbery, fraud and other crimes against property is the key to the difference. The so-called secret theft, refers to the behavior of the perpetrator with the self-considered not for the owner of the property, the custodian or handled the method of discovery, secretly will be taken away from the behavior of other people's property. Here should pay attention to two points:
(1) the secret is not necessary in fact unknown, but mainly the perpetrator thought of the secret. Therefore, in fact unknown, or the owner of the property, the custodian of the property has been found but the perpetrator thought not to be found, or in the case of the owner of the property, the custodian does not know, the perpetrator of the property in front of the other openly take away the property, all belong to the secret stealing; (2) secret stealing in a variety of ways, but summarized in two categories of its first, the general type of common household burglaries, pickpocketing, taking the sheep and so on, the characteristic is that the stolen property is in a variety of ways, but summarized in two categories of its one, general type of common household theft, pickpocketing, taking sheep. Characterized by the stolen property in the space to move; Second, special types, such as the use of computer theft, theft of others telecommunication code number, etc., which is characterized by the stolen property on the inter does not move.
2 The object of this crime is public and private property, including tangible property, including intangible property; can be legal property, can also be prohibited or illegally occupied property. Real estate itself can not be the object of this crime, but from the real estate demolition or separation of items, such as doors and windows on the house, masonry, etc. can be the object of this crime. In addition, the theft of criminal law of the specific object of a separate crime, not a theft, but should be determined by the relevant crime.
3 This crime is the form of guilt is directly intentional, and the perpetrator must have the purpose of illegal possession of other people's public and private property. Mistake other people as their own property to take, because it does not have the purpose of illegal possession of other people's property, does not constitute this crime. Quietly taking away other people's own property in use or custody does not, in principle, constitute this crime. But the relevant departments according to law to suspend, seized my property away, should be convicted of this crime.
4 This crime can only be constituted by natural persons. However, for the unit of the relevant personnel for the benefit of the unit to organize the implementation of the theft, the circumstances are serious, it should be directly responsible for the supervisor and other directly responsible personnel, convicted and punished for theft.
5 constitute the crime of theft in large amounts or multiple theft as a necessary condition. According to the relevant judicial interpretations, the amount is greater, is the theft of public and private property valued at 500 yuan to more than 2,000 yuan; multiple theft, refers to a year of burglary or theft in the public *** place more than 3 times. As long as meet one of them, can constitute this crime. Theft of public and private property in large amounts, is the criminal law and the relevant judicial interpretations of the determination of the crime of theft and non-crime boundaries of the main standard, the judicial practice of the application of the standard, should pay attention to the following issues:
1 According to the relevant judicial interpretations, the theft of large amounts, refers to the theft of public and private property valued at more than RMB 500 yuan to 2,000 yuan. Here should pay attention to three points: First, the amount of theft, is the amount of the value of the property actually stolen by the perpetrator. Theft of credit and use, the amount of theft should be based on the amount of the perpetrator of the theft of credit cards after the use of the amount of determination; Second, if the provinces, autonomous regions and municipalities directly under the Central Higher People's Court in accordance with the economic development and social security conditions, within the range of the above to determine the local implementation of the standard, in the local should be carried out in the local standard; Third, the amount of theft in RMB. In the case of theft of foreign exchange, it shall be calculated on the basis of the selling price of foreign exchange announced by the State Administration of Foreign Exchange on the day of the theft.2 The above amount standard is only a principle threshold, which is not yet reached but is close to the starting point of the larger amount, and a person with one of the following circumstances can also be convicted of theft: (1) theft by destructive means causing loss of public or private property; (2) theft of the property of a disabled person, widow or widower, or of a person who has lost the ability to work; (3) Causing serious consequences or having other serious circumstances.
At the same time, although the theft of public and private property has reached the starting point of a larger amount, but the circumstances are minor, and has one of the following circumstances, can also not be treated as a crime of theft: (1) has reached the age of 16 years old less than 18 years of age of minors committed the crime; (2) all the return of dirty, compensation; (3) the initiative to surrender; (4) coerced to participate in the theft activities, did not share the spoils of the stolen goods or the stolen goods is less; (5) Other minor circumstances, less harmful.3 For the following thefts occurring on specific occasions or committed against specific objects, the judicial interpretation provides for special amount standards:
(1) According to the "Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security on the issue of the determination of the amount of the crime of theft in the course of railroad transportation," the greater amount of the crime of theft in the course of railroad transportation, to 1,000 Yuan as the starting point; (2) the theft of special invoices for incremental tax or other invoices that can be used to fraudulently obtain export tax refunds, tax credits, the theft of invoices in the number of 25 or more for the larger amount of the standard.
4 Attempted theft is generally not criminalized, but the circumstances are serious, such as the theft of a huge amount of property or precious national cultural relics, etc., should be convicted and punished.
Interpretation of Several Issues Concerning the Trial of Theft Cases on the Specific Application of the Law
Article 1 According to the provisions of Article 264 of the Criminal Law, the act of secretly stealing public or private property in a large amount or repeatedly stealing public or private property for the purpose of illegal possession constitutes the crime of theft.
(1) the amount of theft, refers to the amount of public and private property stolen by the perpetrator.
(b) attempted theft, the circumstances are serious, such as the theft of a huge amount of property or national precious cultural relics, etc. as the target, shall be convicted and punished.
(c) Theft of public or private property, including electricity, gas, natural gas, etc.
(d) the theft of their own property or the property of close relatives, generally may not be dealt with as a crime; the necessity of criminal responsibility, the punishment should also be differentiated from the community in the crime.
Article 2: The term "for profit" as stipulated in Article 265 of the Criminal Law refers to the act of selling, renting, using for personal use, transferring, etc., in order to gain economic benefits.
Article 3 Theft of public or private property "in a larger amount", "in a huge amount", "in a particularly huge amount" are as follows:
(1) Personal theft Public and private property valued at 500 yuan to more than 2,000 yuan, for the "amount of large".
(B) personal theft of public and private property valued at RMB 5,000 yuan to more than 20,000 yuan, the "amount is huge".
(C) personal theft of public and private property valued at RMB 30,000 yuan to more than 100,000 yuan, the "amount is particularly large".
Provinces, autonomous regions, municipalities directly under the Central Higher People's Court may, according to the state of economic development of the region, and taking into account the state of social security, in the amount of the preceding paragraph within the range, respectively, to determine the implementation of the region's "large amount", "huge amount", "particularly large amounts", respectively.
Article 4 for a year for burglary or pickpocketing in public **** place more than three times, shall be recognized as "multiple theft", to the crime of theft conviction and punishment.
Article 5 The amount of the stolen goods shall be calculated as follows:
(1) The price of the stolen goods shall be determined by a valid certificate of the price of the stolen goods. For those that cannot be determined, they shall be differentiated and calculated separately in RMB according to the prices of similar articles at the time of the crime and in the locality, and in accordance with the following methods of verification:
1. For commodities in circulation, they shall be calculated according to the medium price of the market retail price; for those that belong to the state pricing, they shall be calculated according to the state pricing; and for those that belong to the state guiding price, they shall be calculated according to the maximum limit of the guiding price.
2. For products in the field of production, finished products shall be calculated in accordance with the method stipulated in paragraph 1 of this subparagraph; semi-finished products shall be converted into finished products in accordance with the price of finished products.
3. The means of production of units and citizens, means of living and other items, in principle, according to the purchase price, but the market price at the time of the crime is higher than the original purchase price, according to the market price at the time of the medium price calculation.
4. Agricultural and sideline products shall be calculated according to the medium price of similar products in the farmers' market.
Large livestock, according to the medium price of the same kind of equivalent livestock in the market.
5. Imported and exported goods and articles shall be calculated according to the method stipulated in paragraph 1 of this article.
6. Artifacts made of gold, silver and jewelry are calculated according to the retail prices in state-owned stores; if they are not sold in state-owned stores, they are calculated according to the prices approved by the competent state authorities.
Gold and silver are calculated according to the state pricing.
7. Foreign currencies shall be calculated according to the selling price of foreign currencies announced by the State Administration of Foreign Exchange (SAFE) on the day of the theft.
8. General cultural relics not belonging to the collection of the third level or above, including antiques, ancient paintings and calligraphy, etc., shall be calculated according to the general retail price of the state-owned cultural relics stores, or according to the price approved by the competent state cultural relics department.
9, for the purpose of profit-making, stealing and connecting other people's communication lines, copying other people's telecommunication code numbers, the amount of theft is calculated according to the local post and telecommunications departments of the initial telephone installation fee, cell phone access fees; the amount of stolen goods is higher than the initial telephone installation fee, cell phone access fees, the amount of theft is calculated on the basis of the amount of stolen goods. The amount of stolen cell phones, calculated by subtracting the cost price of bare metal.
10, knowingly stealing other people's communication lines, copying other people's telecommunication code number of telecommunication equipment, facilities and use, the amount of theft according to the legitimate user to pay for their telephone bills. The amount of theft can not be directly recognized, should be the legitimate user of telecommunications equipment, facilities are stolen, copy the monthly payment minus the average telephone bill for the six months before being copied projected; legitimate users of telecommunications equipment, facilities for less than six months, according to the actual use of the average monthly cost of the telephone bill projected.
11. If a person steals another person's communication line and then uses it himself, the amount of theft shall be calculated according to the provisions of 10 of this subparagraph; if a person copies another person's telecommunication code number and then uses it himself, the amount of theft shall be calculated according to the cumulative amount of theft as stipulated in 9 and 10 of this subparagraph.
(2) Valuable payment certificates, securities, marketable bills, calculated in accordance with the following methods:
1, bearer, not lost valuable payment certificates, securities, marketable bills, regardless of whether they can be cashed instantly, according to the amount of the face of the bill and the fruits, bonuses or prizes, and other available earnings at the time of the crime are due to be calculated together. Stocks are calculated on the basis of the average price of the stock traded on the stock exchange on the day of the theft.
2, bearer's valuable payment vouchers, valuable judgment, valuable bills, if the face value has been determined and can be cashed instantly, such as demand passbook, the maturity of the regular passbook and the amount of checks have been filled in, as well as without proof of formalities can be withdrawn from the goods bill of lading, etc., according to the face value of the amount and the case of the interest due to the value of the goods or withdrawable calculated. If the face value of the ticket is undetermined but it has been cashed, it shall be calculated on the basis of the value of the property actually cashed; if it has not yet been cashed, it may be used as a circumstance for conviction and punishment.
If the registered valuable payment certificates, securities, or valuable instruments that cannot be cashed instantly or can be cashed instantly have been destroyed or discarded, and the owner of the lost property can avoid the actual loss by means of loss, reclaiming, or replacement procedures, the face value of the ticket shall not be used as a criterion for conviction and sentencing, but it may be used as a circumstance for conviction and sentencing.
(3) Stamps, coins and other collectibles and souvenirs shall be calculated according to the prices approved by the relevant state departments.
(d) Bulk stolen articles of the same kind, purchased by the owner at a variety of prices, shall be calculated separately if they can be distinguished; if they are difficult to distinguish, they shall be calculated according to the medium price of such articles.
(5) Where the stolen articles have been sold, squandered, discarded or destroyed, and cannot be recovered or have changed hands several times, and their initial form has been destroyed, the value of the original stolen articles shall be determined on the basis of the statements and testimonies of the owner, witnesses, and valid vouchers provided, as well as the statements of the defendant, and in accordance with the method of verification of the price stipulated in subparagraph (1) of this Article.
(6) The owner of the stolen goods purchased at a price significantly lower than the stolen at the time, the local market retail price, shall be calculated in accordance with the method of verification provided for in subparagraph (a) of this Article.
(VII) the amount of stolen goods sold is higher than the amount of theft calculated in accordance with this explanation, the amount of theft shall be calculated on the basis of the amount of stolen goods sold.
(viii) If the theft of contraband is treated as theft, the amount shall not be counted and the sentence shall be imposed according to the severity of the circumstances.
(ix) If the price of the stolen goods is unknown or the price is difficult to determine, the valuation shall be entrusted to a designated valuation agency in accordance with the provisions of the "Measures for the Administration of Valuation of Seized, Recovered and Confiscated Goods" of the State Planning Commission, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security.
(10) Stolen articles that have been aged, mutilated or used shall be processed in accordance with the provisions of paragraph (9) of this Article in conjunction with the prices of similar articles at the time of the crime, in the locality and the degree of dilapidation at the time of the theft.
(k) The salvaged goods shall be calculated according to the price approved by the competent authorities; the scrap goods shall be calculated according to the purchase price of the material recycling and utilization department; and the fake or inferior goods, if they have value, shall be processed in accordance with the provisions of item (ix) of this Article and be calculated by their actual value.
(xii) multiple theft constitutes a crime and should be prosecuted according to law, or the last theft constitutes a crime, the previous theft within one year, the amount of its theft shall be accumulated.
(xiii) theft behavior to the owner of the loss is greater than the amount of theft, the amount of loss can be used as a sentencing circumstances.
Article VI of the trial of theft cases, shall be based on the specific circumstances of the case to determine the circumstances of the crime of theft:
(1) the theft of public and private property close to the starting point of the "larger amount", with one of the following circumstances, can be held criminally liable:
1, the theft of public and private property damage caused by destructive means;
1. Property loss;
2, theft of disabled persons, widows and orphans, or the loss of working capacity of people's property;
3, causing serious consequences or other bad circumstances.
(2) the theft of public and private property has reached the starting point of the "larger amount", but the circumstances are minor, and one of the following circumstances, may not be treated as a crime:
1, sixteen years of age less than eighteen years of age of minors;
2, all the return of stolen goods, compensation;
3, the initiative of the minor to do;
2, the theft of property;
3, the theft of property;
3, the theft of property;
3, the theft of property. p>
3, voluntarily surrendered;
4, coerced to participate in the theft activities, did not share the stolen goods or less stolen;
5, other minor circumstances, less harmful.
(C) the amount of theft to "large" or "huge amount" of the starting point, and one of the following circumstances, respectively, can be recognized as "other serious circumstances "or" other particularly serious circumstances "
1, the criminal group of the primary elements or *** the same crime in the main culprits of the seriousness of the circumstances;
2, theft of financial institutions;
3, the seriousness of the harm caused by roving crimes;
4, Recidivism;
5, resulting in the death of the victim, mental disorders or other serious consequences;
6, theft of disaster relief, rescue, flood control, preferential treatment, poverty alleviation, immigration, relief, medical funds, resulting in serious consequences;
7, theft of means of production, which seriously affects the production of;
8, resulting in other major losses.
Article 7 The trial of cases of *** with the crime of theft, shall be based on the specific circumstances of the case of each defendant shall be dealt with separately:
(1) The prime mover of the criminal group shall be punished in accordance with the total amount of the group's theft.
(ii) for *** with the other principal offenders in the crime, shall be punished in accordance with the amount of their participation in or organization and direction of *** with the theft.
(3) The accessory in the ****same crime shall be punished in accordance with the amount of the ****same theft in which he or she participated in determining the range of the sentence, and shall be given a lighter or mitigated punishment or be exempted from punishment in accordance with the provisions of paragraph 2 of Article 27 of the Criminal Law.
Article 8 of the Criminal Law, Article 264 of the "theft of financial institutions", refers to the theft of financial institutions, securities and customer funds, such as depositors' deposits, bonds, other money, enterprise settlement funds, stocks, excluding the theft of financial institutions, office supplies, transportation and other property. Behavior.
Article 9 Theft of national cultural relics of the third level shall be sentenced to less than three years of fixed-term imprisonment, detention or control, and a fine or a unit of punishment; theft of national cultural relics of the second level shall be sentenced to more than three years than ten years of fixed-term imprisonment and a fine; theft of national cultural relics of the first level shall be sentenced to more than ten years of fixed-term imprisonment or life imprisonment and a fine or confiscation of property.
Theft of cultural relics of different grades above the third grade in one case shall be punished in accordance with the sentencing range of the stolen cultural relics of the higher grade; theft of three or more cultural relics of the same grade in one case shall be punished in accordance with the sentencing range of the theft of cultural relics of the higher grade.
Article 264 of the Criminal Law, "theft of precious cultural relics, the circumstances are serious", mainly refers to the theft of cultural relics of the first level of damage, loss, irrecoverable; the theft of more than three cultural relics of the second level of the State or the theft of more than one cultural relics of the first level of the State, and with the interpretation of Article 6 (3), paragraphs 1, 3, 4, 8, one of the circumstances stipulated in the behavior. Article 6 (3), paragraph 1, 3, 4, 8 of this explanation, one of the circumstances stipulated in the act.
Article 10 According to the provisions of Article 196 (3) of the Criminal Law, the theft of credit cards used to convicted and punished for theft. The amount of theft shall be determined according to the amount of theft of credit card use by the perpetrator.