Article 264 Whoever steals public or private property, if the amount is relatively large or repeated, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 3 years 10 years and fined; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 or life imprisonment, and shall also be fined or confiscated; Under any of the following circumstances, he shall be sentenced to life imprisonment or death, and his property shall also be confiscated: (1) stealing financial institutions, with a particularly large amount; (2) stealing precious cultural relics, if the circumstances are serious.
In judicial practice, we should pay attention to the following issues:
The secret stealing behavior of 1 is the premise of the crime of theft, and it is also the key to distinguish this crime from crimes against property such as robbery, robbery and fraud. The so-called secret theft refers to the act that the owner, custodian or handler secretly takes other people's property without considering it as property. There are two points to note here:
(1) The secret is not necessarily unknown in fact, but mainly considered by the actor. Therefore, it is actually unknown, or the owner and custodian of the property found it but the actor thought it was not found, or the actor openly took the property in front of others without the knowledge of the owner and custodian of the property, which belongs to secret theft; (2) There are various ways to steal secrets, but they can be summarized into two types. One is the general type, that is, common burglary, pickpocketing, shoplifting and so on. Characterized by the displacement of stolen property in space; Secondly, special types, such as computer theft, stealing other people's telecom code numbers, etc., are characterized by the fact that stolen property waits for no one.
The object of this crime is public and private property, including both tangible property and intangible property; It can be legal property, prohibited items or illegally occupied property. Real estate itself cannot be the object of this crime, but items that have been demolished or separated from real estate, such as doors, windows and bricks on houses, can be the object of this crime. In addition, the theft of a specific object of a separate crime in criminal law is not theft, but an associated crime.
The form of this crime is direct intention, and the actor must have the purpose of illegally occupying other people's public and private property. Anyone who wrongly takes other people's property for himself does not constitute this crime, because he has no purpose of illegally possessing other people's property. Stealing one's own property that others use or keep quietly does not constitute this crime in principle. However, whoever takes my property temporarily detained or confiscated by the relevant departments according to law will be convicted of this crime.
This crime can only be constituted by natural persons. However, if the circumstances are serious, the directly responsible person in charge and other directly responsible personnel shall be convicted and punished for theft.
The necessary condition of this crime is a large amount of theft or multiple thefts. According to the relevant judicial interpretation, a large amount refers to the theft of public or private property worth more than 500 yuan but less than 2,000 yuan; Multiple thefts refer to more than three burglaries in public places within 1 year. As long as it meets one of them, it can constitute this crime. Theft of public or private property, with a large amount, is the main criterion for determining the boundary between theft and non-crime as stipulated in criminal law and relevant judicial interpretations. When applying this standard in judicial practice, we should pay attention to the following issues:
1 According to the relevant judicial interpretation, a large amount of theft means that individuals steal public or private property with a value of more than 500 yuan but less than 2,000 yuan. Here we should pay attention to three points: first, the amount of theft refers to the value of the property actually stolen by the actor. If the credit card is stolen, the amount of theft shall be determined according to the amount used by the actor after stealing the credit card; Second, if the higher people's courts of provinces, autonomous regions and municipalities directly under the Central Government determine the local implementation standards within the above range according to the economic development and social security, they should implement the local standards; Third, the amount of theft is calculated in RMB. Theft of foreign exchange shall be calculated according to the selling price of foreign exchange announced by the State Administration of Foreign Exchange on the day of theft. The above amount standard is only a principled limit. Although it has not reached the starting point of a large amount, it can also be convicted of theft under any of the following circumstances: (1) stealing by sabotage, causing losses to public and private property; (2) Stealing the property of the disabled, the widowed elderly or the disabled; (3) Causing serious consequences or other serious circumstances.
At the same time, although the theft of public or private property has reached a relatively large starting point, the circumstances are minor. In any of the following circumstances, it may not be treated as theft: (1) A minor who is over 16 years old and under 18 years old commits a crime; (2) All dirty ones will be refunded; (3) voluntarily surrendering; (four) coerced to participate in theft activities, not sharing or taking less stolen goods; (5) He is underage and harmless. 3 For the following theft committed on a specific occasion or for a specific object, the judicial interpretation stipulates that there is a special amount standard:
(1) According to the regulations of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on the determination standard of the amount of railway transportation theft, if the amount of railway transportation theft is large, 1000 yuan shall be taken as the starting point; (2) Whoever steals special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or deduct taxes shall take the number of stolen invoices as the criterion of relatively large amount.
Attempted theft is generally not treated as a crime, but if the circumstances are serious, such as stealing huge amounts of property or precious national cultural relics, it should be convicted and punished.
Interpretation of some problems about the specific application of law in the trial of theft cases
Article 1 According to Article 264 of the Criminal Law, stealing a large amount of public or private property in secret or stealing public or private property for the purpose of illegal possession for many times constitutes theft.
(a) the amount of theft refers to the amount of public and private property stolen by the actor.
(two) attempted theft, if the circumstances are serious, such as a huge amount of property or precious national cultural relics as the object of theft, should be convicted and punished.
(3) Stealing public and private property, including electricity, gas and natural gas.
(4) Whoever steals the property of his own family or close relatives is generally not treated as a crime; If criminal responsibility is really to be investigated, the punishment should be different from those who commit crimes in society.
Article 2 "For the purpose of making profits" as stipulated in Article 265 of the Criminal Law refers to the act of seeking economic benefits by selling, leasing, personal use, transferring, etc.
Article 3 The criteria for stealing public or private property are:
(a) personal theft of public or private property value more than 500 yuan to 2000 yuan, as a "large amount".
(two) personal theft of public or private property worth more than five thousand yuan to twenty thousand yuan, as a "huge amount".
(three) personal theft of public or private property worth more than 30 thousand yuan to100 thousand yuan, as a "particularly huge amount."
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government may, according to the local economic development and the situation of social security, determine the standards of "large amount", "huge amount" and "especially huge" implemented in their respective regions within the scope of the amount specified in the preceding paragraph.
Article 4 Whoever commits burglary or pickpocketing in public places for more than three times within one year shall be deemed as "multiple thefts" and shall be convicted and punished for theft.
Article 5 The amount of stolen goods shall be calculated according to the following methods:
(1) The price of stolen goods shall be determined by valid proof of the price of stolen goods. If it cannot be determined, it shall be calculated in RMB according to the price of local similar commodities at the time of committing the crime and the following nuclear pricing methods:
1. Commodities in the circulation field are calculated according to the middle price of the retail price in the market; Belong to the national price, according to the national price calculation; If it belongs to the national guidance price, it shall be calculated according to the maximum price limit of the guidance price.
2. The products on the production site shall be calculated according to the method specified in this item 1; Semi-finished products are converted at the price of finished products.
3, units and citizens of the means of production, means of subsistence and other items, in principle, according to the purchase price, but the crime at that time the market price is higher than the original purchase price, according to the middle price of the market price at that time.
4, agricultural and sideline products, according to the intermediate price of similar products in the farmer's market.
Large livestock, according to the medium price of similar large livestock in the trading market.
5. Import and export goods and articles shall be calculated according to the method specified in this item 1.
6, gold, silver, jewelry and other handicrafts, according to the retail price of state-owned stores; State-owned stores that are not for sale shall be calculated at the price approved by the competent department of the state.
Gold and silver are calculated at national prices.
7. Foreign currency shall be calculated according to the foreign exchange selling price announced by the State Administration of Foreign Exchange on the day of theft.
8, does not belong to the collection of more than three general cultural relics, including antiques, Gu Shuhua, etc. , according to the general retail price of state-owned cultural relics shops, or according to the price approved by the national cultural relics department.
9, for the purpose of profit, stealing other people's communication lines, copying other people's telecom code number, the amount of theft is calculated according to the telephone installation fee and mobile phone access fee stipulated by the local post and telecommunications department; If the amount of stolen goods is higher than the telephone installation fee and mobile phone access fee, the amount of theft shall be calculated according to the amount of stolen goods. The amount of stolen mobile phones is calculated by subtracting the cost of bare metal.
10, knowing that it was used by stealing other people's communication lines and copying other people's telecommunications equipment and facilities, the amount of theft is calculated according to the telephone bill paid by the legitimate user. If it is impossible to directly confirm the stolen amount, it shall be calculated by subtracting the monthly payment amount of the legitimate user's telecom equipment and facilities after being stolen and copied from the average telephone charges for the six months before being copied; If legal users use telecommunication equipment and facilities for less than 6 months, it shall be calculated according to the actual monthly telephone charges.
1 1. If someone steals other people's communication lines for their own use, the amount of theft shall be calculated according to the provisions of this item 10; If someone copies another person's telecom code number for his own use, the theft amount shall be calculated cumulatively according to the theft amount specified in 9 and 10 of this item.
(2) The calculation methods of payment vouchers, marketable securities and negotiable instruments are as follows:
1, bearer, non-loss-reporting negotiable payment vouchers, securities and bills, regardless of whether they can be cashed immediately, are calculated according to the face value and the available income such as fruits, bonuses or prizes due at the time of the crime. The stock is calculated according to the average trading price of the stock announced by the stock exchange on the day of theft.
2. Registered vouchers, valuation forms and negotiable instruments with fixed par value can be cashed immediately, such as current passbook, expired fixed-term passbook, cheque filled with the amount, bill of lading that can be picked up without documents, etc., shall be calculated according to the par value and the interest due at the time of committing the crime or the value of the goods that can be picked up. If the face value is undetermined but cashed, it shall be calculated according to the actual cashed property value; Those that have not been cashed can be used as circumstances for conviction and sentencing.
Registered payment vouchers, securities, bills that cannot be cashed immediately or payment vouchers, bills and bills that can be cashed immediately have been damaged or abandoned, and the owner can avoid the actual loss by reporting the loss, reissue or completing the formalities. The par value is not used as the standard of conviction and sentencing, but it can be used as the plot of conviction and sentencing.
(three) stamps, commemorative coins and other collectibles and souvenirs are calculated according to the price approved by the relevant state departments.
(four) the same kind of bulk stolen goods, the owner to buy at multiple prices, can be different, respectively; If it is difficult to distinguish, it shall be calculated according to the medium price of such goods.
(5) If the stolen goods have been stolen, squandered, discarded or damaged, and cannot be recovered after changing hands for many times, and the original form has been destroyed, the value of the original stolen goods shall be determined according to the statements and testimonies of the owner and witnesses, the valid vouchers provided and the confession of the defendant, and according to the price checking method specified in Item (1) of this article.
(6) Goods purchased by the owner at a price significantly lower than the retail price in the local market at the time of theft shall be calculated according to the nuclear price method specified in Item (1) of this Article.
(seven) if the amount of stolen goods is higher than the amount of theft calculated according to this interpretation, the amount of theft shall be calculated according to the amount of stolen goods.
(eight) theft of contraband, as theft, regardless of the size of the amount, are sentenced according to the seriousness of the case.
(9) If the price of stolen goods is unknown or difficult to determine, it shall be appraised by a designated appraisal institution in accordance with the provisions of the Administrative Measures for Appraisal of Seizure, Recovery and Confiscation of Goods issued by the State Planning Commission, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security.
(10) Obsolete, damaged or used stolen goods shall be dealt with in accordance with the provisions of Item (9) of this Article in combination with the price of similar goods at the time of committing the crime and the obsolescence at the time of theft.
(eleven) defective products, according to the price approved by the competent department; The waste products are calculated according to the purchase price of the material recovery department; Fake and shoddy goods with high value shall be handled in accordance with the provisions of Item (9) of this article and calculated according to the actual value.
(12) If multiple thefts constitute a crime, criminal responsibility shall be investigated according to law, or if the last theft constitutes a crime and the previous theft is within one year, the total amount of theft shall be accumulated.
(13) If the loss caused by theft to the owner is greater than the amount of theft, the amount of loss can be used as a sentencing circumstance.
Article 6 When trying a theft case, the circumstances of the theft shall be determined according to the specific circumstances of the case:
(a) theft of public or private property is close to the starting point of "a large amount", and criminal responsibility can be investigated under any of the following circumstances:
1. Stealing by sabotage, resulting in losses to public or private property;
2. Stealing the property of the disabled, the widowed elderly or the disabled;
3. Causing serious consequences or other bad circumstances.
(two) although the theft of public or private property has reached the starting point of "a large amount", but the circumstances are minor, and one of the following circumstances, it can not be treated as a crime:
1, minors over 16 but under 18 commit crimes;
2. All stolen goods shall be returned and refunded;
3. Take the initiative to surrender;
4, coerced to participate in theft activities, not stolen or less stolen;
5. Other circumstances are minor and not serious.
(3) If the amount of theft reaches the starting point of "a large amount" or "a huge amount" and has one of the following circumstances, it can be identified as "other serious circumstances" or "other particularly serious circumstances" respectively:
1, the ringleader of a criminal group or the principal in a major crime;
2. Theft of financial institutions;
3. The crime of escape is seriously harmful;
4. recidivism;
5. Causing death, mental disorder or other serious consequences to the victim;
6, theft of disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief, medical funds and materials, resulting in serious consequences;
7, theft of means of production, seriously affecting production;
8. Causing other heavy losses.
Article 7 When trying a theft case, the defendant shall be treated separately according to the specific circumstances of the case:
(1) The ringleaders of criminal groups shall be punished according to the total amount of group theft.
(2) Other principal offenders in a joint crime shall be punished according to the amount of joint theft they participated in or organized or directed.
(3) Determine the range of sentencing according to the amount of theft of * * * accomplices, and give a lighter, mitigated or exempted punishment in accordance with the provisions of the second paragraph of Article 27 of the Criminal Law.
Article 8 The "crime of stealing financial institutions" as stipulated in Article 264 of the Criminal Law refers to the theft of financial institutions' operating funds, securities, depositors' deposits, bonds and other money and materials, as well as enterprises' settlement funds, stocks and other customer funds, excluding the theft of financial institutions' office supplies, vehicles and other property.
Article 9 Whoever steals third-class national cultural relics shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined; Whoever steals national second-class cultural relics shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined; Whoever steals national first-class cultural relics shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated.
Whoever steals cultural relics of different grades above Grade III in a case shall be punished according to the sentencing range of the stolen high-grade cultural relics; Whoever steals more than three cultural relics at the same level in a case shall be punished according to the sentencing range of the cultural relics stolen by the superior.
Article 264 of the Criminal Law stipulates that "the circumstances of stealing precious cultural relics are serious" mainly refers to the damage or loss caused by stealing national first-class cultural relics, which cannot be recovered; Stealing more than three national second-class cultural relics or stealing more than one national first-class cultural relics has one of the circumstances specified in Item 1, 3, 4 and 8 of Item (3) of Article 6 of this Interpretation.
Article 10 According to the third paragraph of Article 196 of the Criminal Law, anyone who steals a credit card shall be convicted and punished for theft. The amount of theft shall be determined according to the amount used by the perpetrator to steal the credit card.