People's Procuratorate of Xuanzhou District, Xuancheng City, Anhui Province

Criminal protest

Xuan Zhou Jian Xing Yi Shen Xing Kang [2019] No. 1

The People's Court of Xuanzhou District sentenced Zhu Moumou, the defendant, to four years and ten months' imprisonment and a fine of 100000 yuan in the criminal judgment (2019) Wan 1802 Chu No. 527.

After examination in accordance with the law, the Court believed that the judgment was wrong in the application of the law. The reasons are as follows.

The facts and charges identified in the judgment are consistent with those charged in the indictment of the Court, but the applicable law is inconsistent, and the sentencing recommendation of the Court's pleading guilty, pleading guilty and signing a written statement of punishment is not adopted.

1. Control and review differences

The indictment of our court accuses the defendant Zhu Moumou of defrauding others' property of 250000 yuan, which is a huge amount. The attempt to defraud 250000 yuan is a sentencing circumstance. The judgment found that the defendant Zhu Moumou defrauded others of property of 500000 yuan, which was particularly huge, including 250000 yuan in an attempt. Since the defendant Zhu Moumou voluntarily pleaded guilty and pleaded guilty to punishment, the indictment of our court proposed that the defendant Zhu Moumou be sentenced to fixed-term imprisonment of not less than three years but not more than four years and be fined; The verdict of the first instance found that the defendant Zhu Moumou committed the crime of fraud, and the amount was especially huge. He was sentenced to four years and ten months of fixed-term imprisonment and a fine of 100000 yuan.

2. Error in the application of law in the first instance judgment

(1) Judicial Interpretation of Fraud

The Provisions on the Standards for Determining the Amount of Fraud Crime issued by the Anhui Higher People's Court and the Anhui People's Procuratorate "The starting point for a large amount of public and private property fraud is 5000 yuan. The starting point for a large amount of public and private property fraud is 50000 yuan. The starting point for a particularly large amount of public and private property fraud is 500000 yuan." Article 6 of 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 Fraud, "Where fraud is accomplished or attempted, and reaches different sentencing ranges, punishment shall be given in accordance with the provisions for heavier punishment; where the same sentencing range is reached, punishment shall be given as a completed crime of fraud."

(2) Sentencing Standards for Fraud

According to the provisions on fraud sentencing in the Notice of Anhui Higher People's Court and Anhui People's Procuratorate on Printing and Distributing the Implementation Rules of the Two Sentencing Standards (WGFF [2019] No. 6), if there are both accomplished and attempted fraud crimes, the benchmark punishment shall be determined based on the corresponding heavier sentencing, and the sentencing range corresponding to both the attempted and the attempted parts shall be the same, The completed part shall be used to determine the benchmark punishment, and other circumstances may be used to adjust the sentencing of the benchmark punishment. Therefore, in this case, the completed fraud of 250000 yuan and the attempted fraud of 250000 yuan have the same range of sentencing. The completed fraud of 250000 yuan is used to determine the benchmark punishment, and the attempted part is considered as the sentencing circumstances to adjust the benchmark punishment. The total amount of 500000 yuan should not be used as the benchmark punishment and the attempted part should not be given a lighter punishment.

According to the judicial interpretation of the above-mentioned standard for the determination of the amount of fraud, the completed fraud of 250000 yuan should be a huge amount, while the judgment found that the fraud of 500000 yuan was a huge amount, which was a mistake in the application of law, resulting in the incompatibility of criminal responsibility and punishment.

To sum up, the judgment of the court of first instance was wrong in the application of law. In order to maintain judicial fairness and accurately punish crimes, in accordance with the provisions of Article 228 of the Criminal Procedure Law of the People's Republic of China, we hereby lodge a protest and apply for a sentence according to law.

Sincerely

Anhui Xuancheng Intermediate People's Court

December 19, 2019