Chinese people **** and the State of the Supreme People's Court Announcement
"The Supreme People's Court on the trial of theft cases on the specific application of the law of a number of issues of the Interpretation of the Supreme People's Court on November 4, 1997 by the Supreme People's Court Trial Committee of the 942nd meeting, is hereby promulgated!
The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases
(Adopted by the Trial Committee of the Supreme People's Court at its 942nd meeting on November 4, 1997, Legal Interpretation 〔1998〕 No. 4)
In order to punish the theft of criminal activities in accordance with the law, and according to the relevant provisions of the Criminal Law, the interpretation of the several issues concerning the specific application of the law in the trial of theft cases is as follows.
Article 1 According to the provisions of Article 264 of the Criminal Law, with the purpose of illegal possession, secretly stealing public or private property in large amounts or repeatedly stealing public or private property constitutes the crime of theft.
(a) the amount of theft, refers to the amount of public and private property stolen by the perpetrator.
(ii) attempted theft, the circumstances are serious, such as a huge amount of property or national precious cultural relics for the theft of the target, should be convicted and punished.
(c) Theft of public and private property, including electricity, gas, natural gas, etc..
(d) steal their own property or close relatives of the property, generally can not be dealt with as a crime; the need to pursue criminal responsibility, the punishment should also be differentiated from the community.
Article 2: The term "for the purpose of making 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 make economic profit.
Article 3 Theft of public or private property "in a larger amount", "in a huge amount", "in a particularly huge amount" are as follows:
(a) personal theft Public and private property valued at 500 yuan to more than 2,000 yuan, for the "large amount".
(B) personal theft of public and private property valued at RMB 5,000 yuan to more than 20,000 yuan, for the "amount is huge.
(C) personal theft of public and private property valued at RMB 30,000 yuan to more than 100,000 yuan, for the "amount is particularly large".
Provinces, autonomous regions, municipalities directly under the Central Higher People's Court in accordance with the economic development of the region, and take 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 in accordance with the following methods:
(1) The price of the stolen goods shall be determined by valid proof of the price of the stolen goods. For those that cannot be determined, it shall be differentiated, based on the price of similar items at the time of the crime, the local area, and in accordance with the following methods of verification, calculated in RMB respectively:
1, the circulation of goods, the market retail price of the medium price; belonging to the state pricing, according to the national pricing; belonging to the national guide price, according to the maximum price of the guide price calculation.
2, the production of products in the field, finished products in accordance with the provisions of this item 1 method of calculation; semi-finished products compared to the price of finished products discount.
3, units and citizens of the means of production, 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, according to the farmer's market, the medium price of similar products.
Large livestock, according to the market similar to the same kind of large livestock at the medium price.
5. Imported and exported goods and articles shall be calculated according to the method stipulated in paragraph 1 of this article.
6, gold, silver, jewelry and other crafts produced by the state-owned stores retail prices; state-owned stores do not sell, according to the prices approved by the competent state departments.
Gold and silver are calculated according to the state pricing.
7. Foreign currencies, calculated according to the foreign exchange selling price announced by the State Administration of Foreign Exchange on the day of the theft.
8, does not belong to the collection of general cultural relics above the third level, including antiques, ancient paintings and calligraphy, etc., according to the state-owned cultural relics store's general retail price, or according to the state cultural relics authorities approved the price.
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 according to the local post and telecommunications departments of the initial telephone charges, cell phone access fees; the amount of stolen goods is higher than the initial telephone charges, cell phone access fees, the amount of theft according to the amount of stolen goods. Cell phone stolen amount, calculated by subtracting the cost of bare metal price.
10, knowing that the theft of other communications lines, copying other telecommunications code number of telecommunications 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 were stolen, copy the monthly payment less the average telephone bill for 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 and connects to another person's communication line for his own use, 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 for his own use, the amount of theft shall be calculated cumulatively according to the cumulative amount of theft as stipulated in 9 and 10 of this subparagraph.
(2) valuable payment certificates, securities, valuable tickets, calculated as follows:
1, bearer, not lost valuable payment certificates, securities, valuable tickets, regardless of whether they can be cashed instantly, according to the amount of the face of the case and the fruits, bonuses or prizes, such as the available earnings should be calculated together. Stocks according to the day of the theft of the stock exchange announced the average price of the stock transactions.
2, bearer of valuable payment vouchers, securities, valuable instruments, if the face value has been determined and can be cashed instantly, such as demand passbook, the maturity of the regular passbook and has filled in the amount of the check, as well as do not need to prove that the formalities can be withdrawn from the goods of the 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 calculation. If the face value of the ticket is undetermined, but has been cashed, calculated according to the actual value of the property cashed; not yet cashed, can be used as a conviction and sentence of the circumstances.
Can not be instantly cashed named valuable payment certificates, securities, valuable instruments or can be instantly cashed valuable payment certificates, securities, valuable instruments have been destroyed, discarded, and the owner can be lost, reclaimed, replacement procedures to avoid the actual loss of the ticket amount is not as a conviction and sentencing standards, but can be used as a conviction and sentencing of the circumstances.
(C) stamps, coins and other collectibles and souvenirs, according to the price approved by the relevant state departments.
(d) The same type of bulk stolen goods, the owner of the loss of a variety of prices to buy, can be distinguished, respectively, calculated; difficult to distinguish, should be calculated according to the medium price of such items.
(E) the stolen goods have been stolen, squandered, discarded, destroyed, can not be recovered or changed hands several times, the initial form of the destruction, should be based on the owner, witness statements, testimony and provide valid vouchers and the defendant's confession, according to the valuation method stipulated in subparagraph (a) of this article, to determine the value of the original stolen goods.
(F) the owner to be significantly lower than the stolen at the time, the local market retail price of the goods purchased, shall be calculated in accordance with the provisions of paragraph (a) of this article, the method of price verification.
(VII) the amount of stolen goods is higher than the amount of theft calculated in accordance with this explanation, the amount of theft is calculated according to the amount of stolen goods.
(H) theft of contraband, according to the crime of theft, without regard to the amount, according to the circumstances of the sentence.
(I) the stolen goods price is unknown or difficult to determine the price, should be in accordance with the State Planning Commission, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, "seized, recovered, confiscated goods valuation of the Management Measures," the provisions of the valuation of the designated appraisal agency.
(J) of the stolen goods have been old, damaged or used, should be combined with the crime at the time, the local price of similar items and the degree of dilapidation at the time of theft, in accordance with the provisions of subparagraph (IX) of this article.
(xi) salvage goods, according to the price approved by the competent authorities; scrap, according to the material recycling and utilization of the purchase price of the department; fake, inferior goods, valuable, according to the provisions of paragraph (ix) of this article, to the actual value of the calculation.
(XII) multiple theft constitutes a crime, should be prosecuted according to law, or the last theft constitutes a crime, the previous theft within one year, the amount of theft should be accumulated.
(xiii) theft to the owner of the loss is greater than the amount of theft, the amount of loss can be used as the circumstances of sentencing.
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:
(a) the theft of public and private property is 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, the theft of public and private property damage caused by destructive means. Property loss;
2, theft of persons with disabilities, widows and orphans, or the loss of working capacity of people's property;
3, causing serious consequences or other bad circumstances.
(B) the theft of public and private property has reached the starting point of the "larger amount", but the circumstances are minor, and has one of the following circumstances, may not be treated as a crime:
1, has reached the age of 16 years old less than 18 years of age of minors commit the crime;
2, all the return of stolen goods, compensation;
3, the initiative of the minor to return the money;
4, the theft of property is not a crime;
5, the theft of property is not a crime. p>
3, the initiative to surrender;
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 reach the "amount of large" or "huge amount" of the starting point, and one of the following circumstances, respectively, can be recognized as "other aggravating circumstances "or" other particularly serious circumstances "
1, the criminal group's 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 *** 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 primary elements of the criminal group shall be punished in accordance with the total amount of the group's theft.
(ii) to *** with the other principal offenders in the crime, shall be punished in accordance with the amount of their participation or organization, direction *** with the theft.
(C) for *** with the crime of accessory, shall be in accordance with the amount of their participation in the *** with the theft to determine the range of sentencing, and in accordance with the provisions of Article 27, paragraph 2 of the Criminal Law, lighter, less severe punishment or exemption from punishment.
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 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.
In a case of theft of cultural relics of different grades above the third level, in accordance with the stolen cultural relics of the higher level of sentencing range of punishment; in a case of theft of more than three pieces of cultural relics of the same level, in accordance with the theft of cultural relics of the higher level of sentencing range of punishment.
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, can not be recovered; theft of more than three cultural relics of the second level of the State or theft of more than one cultural relics of the first level of the State, with the explanation of the sixth paragraph (c) of the first 1, 3, 4, 8 items of 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.
Article 11 In accordance with the provisions of the first paragraph of Article 210 of the Criminal Law, the theft of special value-added tax invoices or other invoices that can be used to fraudulently obtain export tax refunds or tax deductions shall be punished by conviction for the crime of theft. If the number of such invoices stolen is more than twenty-five, the amount shall be "larger"; if the number of such invoices is more than two hundred and fifty, the amount shall be "huge"; if the number of such invoices is more than two thousand and five hundred, the amount shall be "especially huge". ".
Article XII of the trial of theft cases, shall pay attention to distinguish the boundaries between theft and other crimes:
(a) the theft of broadcasting and television facilities, public telecommunication facilities, the value of the amount is not large, but constitutes an endangerment of the crime of public **** security, convicted and punished in accordance with Article 124 of the Penal Code; the theft of broadcasting and television facilities, public telecommunication facilities, and at the same time constitute a theft and the crime of being damaged. Theft of radio and television facilities, public telecommunications facilities constitute both the crime of theft and the crime of being damaged, choose one of the felonies to be punished.
(B) the theft of electric equipment in use, constitute both theft and the crime of destruction of electric equipment, the choice of a felony punishment.
(C) for the theft of other property, the theft of motor vehicles as a tool for crime, the value of the stolen motor vehicle is included in the amount of theft; theft of motor vehicles for the implementation of other crimes, theft and the implementation of other crimes to implement a combination of penalties. In order to commit other crimes, stealing a motor vehicle as a tool of crime after the use of the stolen motor vehicle back to the original place or parked near the original place, the vehicle is not lost, in accordance with the crime committed by the heavier punishment.
(d) for the purpose of practicing driving, amusement, etc., repeatedly stealing a motor vehicle, and the loss of the motor vehicle, convicted and punished for theft; in the process of stealing a motor vehicle in a traffic collision constitutes a crime, but also constitutes a crime, shall be the crime of a traffic collision and other crimes to implement a number of crimes and penalties; stealing a motor vehicle to cause damage to the vehicle, convicted and punished in accordance with the provisions of Article 275 of the Criminal Law
(E) the implementation of the crime of theft, resulting in the destruction of public and private property, the crime of theft shall be punished severely; and constitute other crimes, choose a felony shall be punished severely; the theft of public and private property does not constitute the crime of theft, but due to the use of destructive means of public and private property damage caused by the amount of damage to the crime of destruction of property shall be punished by the crime of intentional destruction of property. After the theft, in order to cover up the theft or retaliation, etc., intentionally destroying public and private property constitutes a crime, should be the crime of theft and other crimes constitute the implementation of the crime.
(F) the theft of technical achievements and other commercial secrets, in accordance with the provisions of Article 219 of the Criminal Law shall be punished.
Article 13 For criminals who should be sentenced to a fine for theft according to law, shall be sentenced to a fine of not more than one thousand yuan or less than two times the amount of theft; for criminals who should be sentenced to a fine according to law, but do not have the amount of theft or are unable to calculate the amount of theft, shall be sentenced to a fine of not more than one thousand yuan or less than one hundred thousand yuan.