I, the determination of the cost of crime
1. The concept of the cost of crime
The cost of crime is not a clear concept in the criminal law, and therefore there is no authoritative legal source for its definition. In theory, the cost of crime has the direct cost of crime, the opportunity cost of crime, the spiritual cost of crime and the cost of punishment. The so-called criminal opportunity cost, refers to the use of a certain period of time to commit a certain criminal act, and therefore can not use the time period, the resources to engage in legitimate profit-making activities, can not legally obtain the corresponding benefits; criminal spiritual cost refers to the perpetrator in the implementation of criminal behavior in the whole process, the inner may bear the uneasiness, and the cost of punishment. criminal spiritual cost refers to the perpetrator in the whole process of the implementation of criminal behavior, the inner may bear the uneasiness or mental pressure; criminal punishment cost, as the name suggests, refers to the perpetrator because of the implementation of criminal behavior by the judicial organs, sentenced to imprisonment, and thus suffered the loss of personal and property penalties. These three types of costs, on the one hand, vary from person to person, for example, some actors will not exist mental burden, some actors will be terrified; on the other hand, these costs are also the perpetrator for the implementation of criminal behavior, for their own reasons to give up the benefits or inevitably need to take responsibility, for example, because of the implementation of criminal behavior and give up the opportunity to make legitimate profits, because of the crime need to bear legal responsibility. Therefore, for these three types of costs, there is generally no question of whether or not to deduct. We commonly analyze the cost of crime deduction problem only refers to the "direct cost of crime"[2]. The direct cost of crime, refers to the perpetrator in the implementation of the crime in the whole process, from the intention to produce, the preparation stage, and then to the implementation of the act stage, the direct input of material resources, financial resources, human resources, energy and so on. Different kinds of crimes, different actors to commit the same kind of crime, the actor's choice of the implementation of the way may be different, the direct costs also differ, but no matter what kind of crime, there are bound to be such direct costs.2. common types of crime costs
crime cost is the perpetrator to complete the criminal behavior must bear the expenditure, that is: not all the cost of the perpetrator's expenses belong to the cost of the crime, for example, in the case of wang mou job invasion and appropriation case - (2016) shanghai 0106 criminal 653, the court held that "The defendant's payment of taxes to the tax department in order to provide invoices to the shopping mall, as well as the defendant's use of part of the proceeds of the stolen money for team building, are the cost of the crime and the disposal of illegal gains", in which a clear line is drawn between the two parts of the perpetrator's expenditures:The payment of the tax part belongs to the cost of the crime, and the expenditure on team building is the disposal of the illegal gains. The expenditures are the disposition of the illegal gains. For the former, in many cases, the perpetrator or his defender will propose to deduct from the amount of the crime (the current judicial practice, the court generally will not be deducted); for the latter, because it is not the cost of the crime, so there is no deduction. In the crime of duty, the common types of crime costs are as follows: 1. The crime of duty in the process of the existence of tax expenditures and in accordance with national regulations, legal provisions, etc., must bear the financial expenditure; 2. The crime of duty in the process of the existence of the meals and travel, public relations costs; 3. The crime of duty in the process of a third party (other units or persons) subject to deductions of the rebate, Benefit fees and other handling costs; 4. the process of job crime procurement of substandard products or other product expenditures; 5. the process of job crime operating costs; 6. the process of job crime brainpower, labor expenditures; 7. the job crime of eating the empty salary category of social security, provident fund expenditures.The cost of crime deduction
In the judicial practice of crime, on the above common cost of crime, the judiciary generally will not be deducted in the amount of crime.1. The cost of crime should not be deducted
First of all, the spirit of the legislation of the Criminal Law itself does not hold a positive attitude towards the cost of crime. Article 64 of the Criminal Law stipulates that contraband and one's own property used in the commission of a crime shall be confiscated. The "personal belongings for use in the commission of the crime" may include a certain range of criminal costs, such as the equipment prepared by the perpetrator. In other words, the cost of crime corresponding to the preparation of tools and the creation of conditions for the commission of a crime should be confiscated, and this is the most straightforward negative assessment of the cost of crime in the legislation. But if the judicial practice of the cost of crime from the total amount of crime deducted, show is undoubtedly a positive evaluation, which leads to the direct consequences of judicial practice and the spirit of the legislation is contradictory.
Secondly, the judicial interpretation of the cost of crime deduction is not clear. issued by the supreme people's court, "the national court to hear financial crime cases work symposium summary" (law [2001] No. 8) there is a reference to the relevant provisions of the cost of the crime: "in the specific determination of the amount of the crime of financial fraud, should be calculated by the amount of the perpetrator of the actual amount of fraud. For the perpetrator for the implementation of financial fraud activities and the payment of intermediary fees, fees, kickbacks, etc., or for bribery, gifts and other costs, shall be included in the amount of the crime of financial fraud. However, the amount that has been returned before the crime is committed shall be deducted." This refers to the "intermediary fees, handling fees, kickbacks, etc." will not be deducted from the amount of the crime, and the "amount returned before the crime" has nothing to do with the cost of the crime.
Once again, the deduction of the cost of the crime will not be conducive to the maintenance of the legitimate rights and interests of victims. in the case of crime, if the cost of crime from the total amount of crime, it means that the part of the cost of crime is legalized evaluation, reduce the amount of the perpetrator's crime, the amount of loss of the victim to recover is also reduced, the part of the cost of the crime is actually transferred to the victim.
Finally, the deduction of the cost of crime is not conducive to crime prevention. On the one hand, any crime need to spend a certain amount of criminal cost, the perpetrator in order to implement the crime, the crime is successfully completed, will inevitably invest a certain amount of time, energy and cost. Deduction of the cost of crime, means that the criminal law that the cost of crime need to pay the corresponding price, which is in disguise to grant criminal behavior to the legitimacy of the status. On the other hand, if the cost of crime can be deducted, it means that in the function of crime, the greater the cost of the perpetrator's crime, in the process of judicial determination of the amount of deduction will be higher, different actors to commit the same criminal act, may be due to the size of the cost of the crime and bear completely different criminal responsibility.
2. The cost of crime should not be deducted from the judicial application
(1) in the case of crimes of duty, in the false intermediate links to carry out business activities, the provision of invoices to conceal profits and other behaviors, there is bound to be the payment of taxes, this part of the payment of taxes in order to complete the criminal acts of the actors must bear the cost, and therefore, in order to complete the criminal act, the cost of tax payment, the cost of tax payment. This part of the tax paid is the cost that the perpetrator must bear in order to complete the criminal act, and therefore should not be deducted. Similarly, other legal provisions must bear the expenses should not be deducted. Qin Mou occupation case - (2016) Lu 02 criminal final 649, on this issue, the court of first instance, the court of second instance, the prosecution's views are inconsistent. The case, the perpetrator exists in 500,000 yuan invoices flat account behavior, involving tax 31,950 yuan, the court of first instance judgment did not count this part of the tax into the amount of crime, the prosecutor filed a protest "the original judgment will be the tax 31,950 yuan from the amount of crime of occupation of office deducted from the amount of crime of occupying an incorrect, the tax should be recognized as the amount of crime of occupying an office. ", the court of second instance held that "the original tax of 31,950 yuan is for the false invoice of 500,000 yuan, illegal use of community funds incurred expenses, should be regarded as the trial defendant to pay the cost of the crime, and the amount signed by the trial defendant, and reimbursed by the community funds, should be counted as the amount of the crime of misappropriation of functions, so the protest opinion is established ", on this basis, the court of second instance to the court of first instance to change the judgment, the tax was not deducted from the amount of the crime. (2) job crime cases, behavior often with the help of a third party subject to go to the account or other assistance in the flow of funds, the third party subject will often be charged to the "benefit", "brokerage fee", "rebate" in the name of the handling costs , this part of the cost is also the perpetrator to achieve the crime of the voluntary, must bear the expenses, should not be deducted from the amount of crime. In September 2017, the original Wang Baoqiang's broker Song _ on suspicion of occupational misappropriation of criminal detention, after the case in 2018 in Beijing Chaoyang District People's Court public hearing. From the case of the public referee ((2018) Beijing 0105 criminal early 781), Song _ in the post, to the internal lying endorsement fee of 2 million yuan, the external lying endorsement fee of 10,000 yuan, its and Xiu Mou from which to earn the above difference, the difference of 10,000 yuan by other companies after the flow, and ultimately Song _ and Xiu Mou each profit 720,000 yuan, another 10,000 yuan in the flow of the link to be consumed. Ultimately, the court of first instance that "the transfer process in all aspects of the precipitation of the million dollars are the cost of crime, in the amount of crime should not be deducted." (3) in the course of the crime, especially related to the purchase of products, sales cases, the perpetrator will often be implemented by substandard, fake and so on, the cost of its cost of poor quality products on the completion of the criminal act of its indispensable part , should not be deducted from the amount of money involved in the case. In the case of Shi Mou, Chao Moumou job misappropriation - (2012) Jia criminal initial word No. 1251, Shi Mou as a unit of the warehouse manager, in charge of the custody of the product during the custody of the goods, in conjunction with others will be the custody of the goods transported out of the company and sell stolen goods at a low price. Later, in order to cope with the warehouse inventory, they purchased miscellaneous or low-priced products of the same type, and refurbished, packaged and labeled with bar code repackaging techniques, mixed into the warehouse of a certain company to offset the inventory. In the case, Shi's defense put forward "the defendant ShiMou self-buy for substitution of electrical appliances should be deducted from the amount of its misappropriation or as the amount of refund", the court of first instance that "the defendant ShiMou self-buy electrical appliances in order to cover up the crime of misappropriation of his position, is the defendant ShiMou's criminal cost, can not offset the amount of its crime, can not offset the amount of its crime, and the defendant ShiMou's criminal cost. Can not offset the amount of his crime, nor as the amount of refund." (4) the process of job crime, especially the false intermediate link type case, the perpetrator himself or with friends and relatives to open a separate company, the company as a tool to complete the job crime, but in the operation of the company, will inevitably produce rent, employee wages, utilities, water and other expenditures, this part of the expenditure should not be deducted from the amount of the crime. The amount of the crime should not be deducted. In the case of embezzlement, bribery and misappropriation of duties by Huang Mou et al. (2014) Huai criminal initial No. 00005, the perpetrators conspired with others to set up an advertising company, and seized and retained the advertising costs that should not have been spent by the perpetrator's organization. The court of first instance held that "the taxes and daily expenses paid to earn illegal benefits are the cost of the crime and cannot be deducted from the amount of the crime". (5) There is a category of criminal behavior in the job crime - "empty pay", mainly refers to the unit personnel illegal receipt of wages, allowances, pensions and other unlawful acts. The main types of "ghost employees", "power pay", "sick pay", "vacation pay" and so on (see "The Ghost Employee", "power pay", "sick pay", "vacation pay", etc.). See "Employees fraudulently claiming wages, 'eat empty payroll' phenomenon prevention points" an article). In this type of case, the perpetrator often direct appropriation of the main unit of wages, but because the employer unit for each employee to pay the social security and provident fund, so the perpetrator of the direct appropriation of the amount and the amount of loss of the unit is not consistent, in the judicial practice, social security, provident fund will be recognized as the perpetrator of the amount of the crime . In Zhang and others embezzlement case - (2016) Anhui 0802 criminal 53, the perpetrator in the period of service, knowing that the unit no new job requirements, still using the convenience of their positions to arrange their friends and relatives with the unit signed labor contracts, their friends and relatives in the case of never to work in the unit, to receive wages. In the trial of the case, the defense proposed to deduct social security costs, the case does not meet the standard of prosecution (similar cases, the defense often also have the following defense: payment of social security and provident fund is a necessary procedure, the perpetrator of the intentional misappropriation; the perpetrator's purpose is to wages, have not used the social security card, the provident fund part of the money; unit of social security, health insurance and other costs did not enter the perpetrator's (The court finally held that: the payment of social security card and medical insurance fees did not enter the perpetrator's pocket, and were not directly possessed by the perpetrator). The court finally held that: the purpose of paying social insurance premiums is not for the equal return of social insurance premiums, but in order to enjoy the benefits of social insurance, social insurance premiums, although part of the social insurance fund, but the benefits of social insurance is still attributable to the individual, but only to be presented in a different form. Secondly, from another level of analysis, according to the "Chinese people's *** and the state social insurance law" provisions, no employees of individual business, not in the employer to participate in the basic pension insurance, basic medical insurance, part-time workers and other flexible employment can participate in the basic old-age pension insurance, basic medical insurance, basic old-age pension insurance premiums and medical insurance premiums paid by the individual. It is because the employer unit for the perpetrator's relatives to pay the basic old-age insurance and basic medical insurance two fees, undoubtedly reduced the perpetrator's relatives personal property expenses, in essence, increased their property income.3. Exceptions to the deduction of the cost of the crime
Of course, not in all criminal cases, the cost of the crime can not be deducted, the Shanghai Higher People's Court Jin Jun judge on the "Wang ___ and other fraud" written "with a gift of low-quality, low-priced products telephone promotions The behavioral characterization of false goods and penalty discretion" article also has a similar point of view: determine the actual amount of loss of the victim should be used subjective and objective combination of methods, can not be objectively obtained because the victim of a certain value of property from the amount of fraud in all to be deducted, in the attached gifts type fraud more careful treatment. First of all, as a commercial gift of goods itself should have economic value, can enter the market circulation and exchange, with independent value. Secondly, the gift can satisfy part of the victim's target value. in short, for the victim of the gift is useful, it is willing to pay the corresponding price to obtain. Then, the part of the gift of the market exchange value can play a role in making up for the loss of the victim's property, can also be deducted from the amount of fraud. In the crime of duty is also the case, if the cost of the perpetrator's expenditure directly for the victim unit directly enjoy, and the unit is actively pursuing the interests of the cost of market economic value, which can be carried out "cost of crime deduction" problem analysis. [1]This prosecution standard is the legal interpretation [2016] No. 9, "the Supreme People's Court, the Supreme People's Procuratorate on the handling of criminal cases of corruption and bribery of the application of the law on a number of issues of the Interpretation" made by the latest implementation of the "Eleventh Amendment to the Criminal Law," although the relevant crimes of the sentencing configuration has been adjusted, but for the prosecution of the standard is adjusted, and there is no latest regulations. [2] If not specified, this article refers to the "cost of crime" refers to the "direct cost of crime".