年10月5日，赵某与张某达成汽车租赁协议，由赵某将自己的吉利牌小轿车租赁给张某，租期一个月，租金两千元，车辆交付后的10月25日，赵某用备用的车钥匙伙同李某将出租给张某的吉利牌轿车开走，当张某发现车子不见时，便打电话向赵某询问情况，赵某称其不清楚并向张某索赔40000元，张某支付40000元赔偿金后报警， 11月20日，民警在李某家发现该车，经讯问，李某承认是其伙同赵某窃回该吉利轿车,经鉴定该轿车价值38000元。 On October 5 , 2018 , Zhao and Zhang reached a car lease agreement. Zhao leased his Geely car to Zhang for a month, with a rent of 2,000 yuan. On October 25 , the vehicle was delivered. Zhao used a spare car key to go with Lee to rent a Geely car rented to Zhang. When Zhang found that the car was missing, he called Zhao to ask about the situation. Zhao said that he was not clear and asked Zhang After claiming 40,000 yuan, Zhang paid a compensation of 40,000 yuan to the police. On November 20 , the police found the car at Li's house. After interrogation, Li confessed that his partner Zhao had stolen the Geely car , and the value of the car was identified. 38,000 yuan.
After the case was transferred for review and prosecution, there were three different opinions on the characterization of Zhao's behavior and the amount of crime:
The first opinion is that the nature of the crime is a violation of legal interests, and the object of the crime of property invasion is the ownership of public and private property, excluding possession. 元，构成诈骗罪，诈骗数额为40000元。 Zhao's theft of his own car did not infringe legal interests. Therefore, Zhao's stolen car did not constitute a crime. Later, he claimed that Zhang had fictional vehicle theft, which caused Zhang to fall into the wrong understanding and pay 40,000. Yuan, which constitutes the crime of fraud, and the amount of fraud is 40,000 yuan.
元的汽车，构成盗窃罪，后又虚构车辆被盗的事实，致使张某陷入错误认识赔偿其40000元，构成诈骗罪。 The second opinion is that the object of the crime of property invasion is not limited to the ownership of property, but also the right of possession, that is, the property owned by others legally can also be the target of theft. Therefore, Zhao took the secret means to steal Zhang from him. Leasing a car worth 38,000 yuan constitutes the crime of theft, and then the fiction of the car being stolen, causing Zhang to fall into the wrong understanding to compensate him for 40,000 yuan, which constitutes the crime of fraud. 元认定其犯罪数额。 The two previous and subsequent acts are based on a generalized intention. They are criminal implicated offenders who commit two crimes for one act, and should be punished severely. The actual amount of the vehicle is 38,000 yuan to determine the amount of crime.
元认定为赵某的犯罪数额。 The third opinion is qualitatively consistent with Zhao's behavior, the difference is that the third opinion believes that Zhang's actual loss of 40,000 yuan should be regarded as Zhao's crime amount.
元认定为赵某的犯罪数额。 The author agrees with the third opinion that Zhao's behavior is an implicated offender who commits two crimes in one act. He should choose a heavy punishment and determine Zhang's actual loss of 40,000 yuan as Zhao's crime. analyse as below:
Zhao's theft of the car leased to Zhang was a crime of theft. The subject matter of the crime of theft is not limited to the ownership of public and private property. This has reached consensus in both the theoretical and practical circles. 期第339号叶文言、叶文语等人盗窃案、第84期第751号孙伟勇盗窃案均认为：“我国《刑法》第九十一条第二款规定，在国家机关、国有公司、企业、集体企业和人民团体管理、使用或者运输中的私人财产，以公共财产论，其中的管理、使用、运输都有占有的含义，既然由国家、集体占有的私人财产以公共财产论，那么由他 From the perspective of criminal law theory, the criminal law theory that believes that the object of property crime infringement only includes public and private property ownership has been criticized by the academic community. For example, Professor Zhang Mingkai believes: "The legal benefit of property offenders is first of all property ownership and other rights. Other rights include legal possession. Rights (other property rights) and creditor's rights ", the theory is based on the consideration of socio-economic development. With the development of the economy, the property relationship becomes increasingly complex and diverse. The phenomenon of separation of ownership and management rights is common. An inevitable choice for the development of the times; from the perspective of judicial practice, the theft of the case of Ye Wenyan, Ye Wenyu, etc., No. 339 , No. 339 of the Criminal Trial Reference of the Supreme People's Court, and the case of Sun Weiyong, No. 751 of No. 84 : According to Article 91, paragraph 2, of the Criminal Law, private property in the management, use, or transportation of state agencies, state-owned companies, enterprises, collective enterprises, and people's organizations is based on public property. The meaning of possession, since private property owned by the state and collective is public property, It is also reasonable to say that the property legally possessed by others is the property of others. " This is also because once such property is lost, the owner of the property is liable for compensation, and the actual damaged person is still the owner of the property. 元，构成诈骗罪，其前后两个行为基于一个概括的故意，属于一行为触犯两罪名，应择一重处罚。 It can be seen that the subject of the crime of theft includes both ownership and legal possession. In this case, Zhao used the secret method to steal the car that he leased to Zhang for the purpose of illegal possession, which constituted a crime of theft. The stolen facts claimed Zhang, which caused Zhang to fall into the wrong understanding and pay 40,000 yuan, which constitutes the crime of fraud. The two actions before and after are based on a general intention, and belong to two crimes in one act, and should be punished severely. 元，诈骗罪数额巨大的标准为50000元，且两罪的数额巨大的量刑幅度都在三年到十年，因此，相较于同一量刑档下盗窃罪的处罚重于诈骗罪，应以盗窃罪追究赵某的刑事责任。 According to the relevant provisions of the Implementation Rules of the Guiding Opinions on Sentencing of Common Crimes of the Higher People's Court of Shaanxi Province, the standard for the huge amount of theft is 40,000 yuan, and the standard for the large amount of fraud is 50,000 yuan. From three to ten years, therefore, compared with the crime of theft under the same penalty file, the punishment for theft is more serious than the crime of fraud. Zhao should be held criminally responsible for theft.
元。 The amount of crime was determined to be 40,000 yuan. Judicial practice on the determination of the amount of crime in the crime of aggravating wealth. 元，赔偿数额40000元两种针对被盗车辆的数额，赔偿数额能在客观上体现行为人因犯罪行为给他人造成的财产损失数额，将其认定为犯罪数额更有利于保护被害人的财产所有权。 On the one hand, it should adhere to the principle of protecting the property rights of victims, such as the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Theft of Theft Cases", which states that "the amount of stolen goods is higher than in accordance with this interpretation The calculated amount of theft is calculated based on the amount of stolen goods. "There are vehicle identification prices of 38,000 yuan and compensation of 40,000 yuan for the stolen vehicle. The compensation amount can objectively reflect the behavior caused by the perpetrator to the criminal. The amount of property loss, which is considered as the amount of crime, is more conducive to protecting the property ownership of the victim. On the other hand, the determination of the claim amount as a crime amount can also reflect the subjective crime amount for the purpose of illegal possession, so that the determination of the crime amount in this case is subjective and objective.
元汽车构成盗窃罪，后又虚构汽车被盗的事实向张某索赔40000元构成诈骗罪，前后两行为基于一个概括的故意且之间存在手段与目的的关系，符合牵连犯应择一重处罚，基于同一量刑档，盗窃罪的处罚重于诈骗罪，应以盗窃罪追究赵某的刑事责任，盗窃数额40000元。 To sum up, for the purpose of illegal possession, Zhao stole a car worth 38,000 yuan rented to Zhang, which constitutes theft, and then the fiction of the car was stolen. Claiming Zhang 40,000 yuan constitutes a crime of fraud. Based on a general intentional relationship between the means and the purpose, the implicated offender should choose a heavy punishment. Based on the same sentence, the penalty for theft is greater than the crime of fraud. Zhao should be investigated for the crime of theft and the amount of theft. 40,000 yuan.
(Author: Chencang District of Baoji City People's Procuratorate Zheng Shuhan Wang Editor: Wang Jin)
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