Article 266 of the Criminal Law [Crime of Fraud]
Crime of Fraud
Those who defraud public or private property, with a relatively large amount, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or only fined; If the amount involved is huge or there are other serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is particularly huge or there are other particularly serious circumstances, the offender shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined or have his property confiscated. If there are other provisions in this law, they shall prevail.
Legislative Interpretation
Interpretation of the Standing Committee of the National People's Congress on Article 266 of the Criminal Law of the People's Republic of China (Interpretation 20140424)
Those who fraudulently obtain social insurance benefits or other social security benefits such as pension, medical care, work-related injury, unemployment, and childbirth through fraud, forgery of proof materials, or other means, belong to the acts of defrauding public and private property as stipulated in Article 266 of the Criminal Law.
Judicial Interpretation I
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 (Fa Shi [2011] No. 7, 20110408)
Article 1: Fraudulent public and private property with a value ranging from 3000 yuan to over 10000 yuan, from 30000 yuan to over 100000 yuan, and from over 500000 yuan shall be respectively recognized as "relatively large", "huge", and "particularly huge" as stipulated in Article 266 of the Criminal Law.
The higher people's courts and people's procuratorates of various provinces, autonomous regions, and municipalities directly under the central government may, in conjunction with the economic and social development situation of their respective regions, jointly study and determine the specific amount standards for local execution within the range specified in the preceding paragraph, and report them to the Supreme People's Court and the Supreme People's Procuratorate for filing.
Article 2: If the fraud of public or private property reaches the amount standard stipulated in Article 1 of this Interpretation and falls under any of the following circumstances, it may be punished severely according to the provisions of Article 266 of the Criminal Law:
（1） Those who commit fraud against unspecified individuals by sending text messages, making phone calls, or using the internet, radio and television, newspapers and magazines, etc. to publish false information;
（2） Fraudulent disaster relief, rescue, flood prevention, preferential treatment, poverty alleviation, immigration, relief, medical supplies and supplies;
（3） Those who commit fraud in the name of disaster relief fundraising;
（4） Fraudulent individuals with disabilities, the elderly, or those who have lost their ability to work;
（5） Causing suicide, mental disorder, or other serious consequences to the victim.
If the amount of fraud is close to the standards of "huge amount" or "particularly huge amount" stipulated in Article 1 of this Interpretation, and falls under one of the circumstances specified in the preceding paragraph or belongs to the primary members of a fraud group, it shall be recognized as "other serious circumstances" or "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law.
Article 3: Although the amount of public or private property defrauded has reached the standard of "relatively large" as stipulated in Article 1 of this Interpretation, if the perpetrator confesses or repents in any of the following circumstances, they may not be prosecuted or exempted from criminal punishment in accordance with Article 37 of the Criminal Law and Article 142 of the Criminal Procedure Law:
（1） Those with statutory lenient punishment circumstances;
（2） Refund all stolen goods or compensation before the first instance judgment;
（3） Those who did not participate in the distribution of spoils or received less spoils and were not the main culprits;
（4） The victim's forgiveness;
（5） Other minor circumstances with minimal harm.
Article 4: Fraudulent property of close relatives, if understood by close relatives, may generally not be treated as a crime.
If it is necessary to pursue criminal responsibility for defrauding the property of close relatives, the specific handling should also be lenient as appropriate.
Article 5: Those who attempt to commit fraud and use a huge amount of property as the target of fraud, or have other serious circumstances, shall be convicted and punished.
If using telecommunications technologies such as sending text messages, making phone calls, and the internet to commit fraud against an unspecified majority of people, and the amount of fraud is difficult to verify, but under any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for the crime of fraud (attempted fraud):
（1） Sending more than 5000 fraudulent messages;
（2） Those who make fraudulent phone calls more than 500 times;
（3） Fraudulent methods are heinous and pose serious harm.
If the act specified in the preceding paragraph is carried out in quantities exceeding ten times the standards specified in items (1) and (2) of the preceding paragraph, or if the means of fraud are particularly malicious and the harm is particularly serious, it shall be recognized as "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for the crime of fraud (attempted fraud).
Article 6: If there are both completed and attempted fraud, and the sentencing ranges are different, the punishment shall be in accordance with the provisions of the heavier punishment; Those who reach the same sentencing range shall be punished with completed fraud.
Article 7: Those who knowingly provide credit cards, mobile cards, communication tools, communication transmission channels, network technology support, fee settlement and other assistance to others who commit fraud shall be punished as joint offenders.
Article 8: If anyone impersonates a staff member of a state organ to commit fraud and simultaneously constitutes the crimes of fraud and fraud, they shall be convicted and punished in accordance with the provisions of the heavier punishment.
Article 9: If the fraudulent property and its fruits that have been seized, detained, or frozen after the incident are clearly owned, they shall be returned to the victim; If the ownership is unclear, the victim may be returned according to the proportion of the seized, confiscated, or frozen property and its total fruits, but those that have been refunded should be deducted.
Article 10: If the perpetrator has used the fraudulent property to repay debts or transferred it to others and falls under any of the following circumstances, it shall be recovered in accordance with the law:
（1） The other party knowingly collected it as fraudulent property;
（2） The other party obtains fraudulent property without compensation;
（3） The other party obtains fraudulent property at a significantly lower price than the market;
（4） The other party's acquisition of fraudulent property is due to illegal debt or criminal activities.
If someone obtains fraudulent property in good faith, it shall not be recovered.
Article 11: In case of any inconsistency between the previously published judicial interpretations and this interpretation, this interpretation shall prevail.
Judicial Interpretation II
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases Involving the Crime of Abducting Women and Children (Fa Shi [2016] No. 28, 20170101)
Article 3, Paragraph 2: Those who collude with the introduced woman to defraud others of money under the pretext of introducing marriage, and the amount involved is relatively large, shall be held criminally responsible for the crime of fraud.
Judicial Interpretation III
"Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law and Law in the Trial of Cases Involving Disturbance of Telecommunications Market Management Order" (Fa Shi [2000] No. 12, 20000524)
Article 9: If a person uses false or fraudulent identity documents to complete network access procedures and uses mobile phones, resulting in significant losses in telecommunications fees, they shall be convicted and punished for fraud in accordance with the provisions of Article 266 of the Criminal Law.
Judicial Interpretation IV
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 Involving Obstruction, Prevention, and Control of Sudden Infectious Disease Epidemic and Other Disasters (Fa Shi [2003] No. 8, 20030515)
Article 7: During the prevention and control of sudden infectious disease epidemics and other disasters, those who falsely use the name of developing, producing or selling disaster supplies for the prevention and control of sudden infectious disease epidemics to defraud a large amount of public or private property shall be convicted in accordance with the provisions of the Criminal Law on the crime of fraud and punished severely in accordance with the law.
Judicial Interpretation V
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Counterfeiting Currency and Other Matters (II) (Fa Shi [2010] No. 14, 20101103)
Article 5: Whoever forges a currency that has ceased circulation for the purpose of use, or uses a counterfeit currency that has ceased circulation, shall be convicted and punished for the crime of fraud in accordance with the provisions of Article 266 of the Criminal Law.
Judicial Interpretation VI
Interpretation of the Supreme People's Court on the Time Validity of the Amendment to the Criminal Law of the People's Republic of China (IX) (Fa Shi [2015] No. 19, 20151101)
Article 7: If a civil lawsuit is filed before October 31, 2015 with fabricated facts that disrupt judicial order or seriously infringe upon the legitimate rights and interests of others, and according to the pre amended Criminal Law, criminal responsibility should be pursued for the crime of forging seals of companies, enterprises, institutions, people's organizations, or obstructing testimony, the relevant provisions of the pre amended Criminal Law shall apply. However, if the punishment is lighter according to Article 307-1 of the revised Criminal Law, the relevant provisions of the revised Criminal Law shall apply.
If the act mentioned in the first paragraph is committed, illegally occupying the property of others or evading legal debts, and criminal responsibility should be pursued for crimes such as fraud, embezzlement, or corruption according to the pre amended Criminal Law, the relevant provisions of the pre amended Criminal Law shall apply.
Judicial Interpretation VI. Annotation
According to the response of the Legal Policy Research Office of the Supreme People's Procuratorate on October 24, 2002, on how to apply the law to the act of fraudulently obtaining court civil judgments to occupy the property of others by forging evidence, it is not appropriate to hold the perpetrator criminally responsible for false litigation acts before October 31, 2015, even if they illegally occupy the property of others or evade legal debts, for fraud and other crimes, Because the people's courts and their judgments should not be used as tools by criminals. But if the perpetrator commits acts of obstructing testimony or forging seals, which constitute a crime, criminal responsibility shall be pursued for the crime of obstructing testimony or forging seals of companies, enterprises, institutions, or people's organizations. Therefore, it is recommended to delete the provision of Article 7, Paragraph 2 of this interpretation.
The Supreme People's Court believes that, given the diverse means of fraud, embezzlement, and corruption, cases of illegally occupying someone else's property or evading legal debts through false litigation often occur, causing significant losses to victims and having a negative social impact. If not punished in accordance with the law and the illegal gains are recovered, the crime will inevitably be indulged. Moreover, after the response from the High Prosecutors Research Office was issued, many effective precedents in various regions have been convicted and punished for fraud, and the judgment results comply with the principle of legality and proportionality of crime and punishment. The social response is good, and the theoretical community generally agrees. Therefore, this opinion was not adopted.
Judicial Guidance Document I
"Guiding Opinions of the Supreme People's Court on the Sentencing of Common Crimes" (Fa Fa [2017] No. 7, 20170401)
（7） Crime of fraud
For those who constitute the crime of fraud, the starting point of sentencing can be determined within the corresponding range according to the following different situations:
(1) If the amount reaches a relatively large starting point, the sentencing starting point can be determined within the range of fixed-term imprisonment or detention of not more than one year.
(2) If the amount reaches a huge starting point or there are other serious circumstances, the sentencing starting point can be determined within the range of three to four years of fixed-term imprisonment.
(3) If the amount reaches a particularly large starting point or there are other particularly serious circumstances, the sentencing starting point may be determined within the range of ten to twelve years of fixed-term imprisonment. Except for those who should be sentenced to life imprisonment according to law.
On the basis of the starting point of sentencing, the amount of punishment can be increased based on the amount of fraud and other criminal facts that affect the composition of the crime, and the benchmark penalty can be determined.
Judicial Guidance Document II
"Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Telecommunications and Network Fraud" (Fa Fa [2016] No. 32, 20161219)
2、 Punish telecommunications network fraud crimes strictly in accordance with the law
（1） According to Article 1 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, those who use telecommunications and network technology to commit fraud and defraud public and private property with a value of more than 3000 yuan, more than 30000 yuan, and more than 500000 yuan, It should be recognized as "relatively large amount", "huge amount", and "particularly huge amount" as stipulated in Article 266 of the Criminal Law.
If a telecommunications network fraud is committed multiple times within two years without being dealt with, and the accumulated amount of fraud is calculated to constitute a crime, it shall be convicted and punished in accordance with the law.
（2） Those who commit telecommunications network fraud crimes and meet the corresponding amount standards, and fall under one of the following circumstances, shall be punished severely at their discretion:
Causing serious consequences such as suicide, death, or mental disorder to the victim or their close relatives;
Those who impersonate judicial or other state officials to commit fraud;
Organizing and directing telecommunications network fraud criminal gangs;
4. Engaging in telecommunications network fraud overseas;
5. Those who have received criminal punishment for telecommunications network fraud or administrative punishment for telecommunications network fraud within two years;
Fraudulent individuals with disabilities, the elderly, minors, school students, or those who have lost their ability to work, or defrauding seriously ill patients and their relatives of property;
Fraudulent disaster relief, rescue, flood prevention, preferential treatment, poverty alleviation, immigration, relief, medical and other funds and materials;
8. Those who commit fraud in the name of social welfare or charity, such as disaster relief and fundraising;
9. Serious interference with the work of public security organs and other departments through technical means such as telephone follow-up systems;
10. Using covert techniques such as phishing website links, Trojan program links, and network penetration to commit fraud.
（3） If a telecommunications network fraud crime is committed, and the amount of fraud is close to the standards of "huge amount" and "particularly huge amount", and falls under one of the circumstances specified in Article (2) above, it shall be respectively recognized as "other serious circumstances" and "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law.
The "proximity" of the above regulations should generally be controlled at 80% or more of the corresponding amount standard.
（4） If the suspect or defendant actually obtains property in the crime of telecommunication network fraud, he shall be convicted and punished for the crime of fraud (completed). If the amount of fraud is difficult to verify but falls under any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for the crime of fraud (attempted fraud):
Sending more than 5000 fraudulent messages or making more than 500 fraudulent phone calls;
Posting fraudulent information on the internet with a cumulative page view count of more than 5000 times.
If the above-mentioned circumstances occur and the quantity reaches ten times or more of the corresponding standard, it shall be deemed as "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for the crime of fraud (attempted fraud).
The above "making fraudulent phone calls" includes making fraudulent phone calls and answering victim's callback calls. For those who repeatedly make and answer the same phone number, as well as repeatedly send fraudulent messages to the same victim, the cumulative number of calls made and answered, and the number of messages sent, shall be calculated.
If it is difficult to collect the evidence of the number of calls and messages sent due to the intentional concealment and destruction of evidence by suspect and defendants, it can be determined comprehensively according to the verified daily number of calls and messages sent, combined with the time when suspect and defendants committed crimes, the confession of suspect and defendants and other relevant evidence.
（5） If there are both completed and attempted telecommunications network fraud, and they reach different sentencing ranges, they shall be punished according to the provisions of the heavier punishment; Those who reach the same sentencing range shall be punished with completed fraud.
（6） When determining the starting point and benchmark punishment for the defendant who commits telecommunications network fraud crimes, a higher choice should generally be made. When determining the sentencing, it is necessary to comprehensively consider the facts and circumstances of the entire case, accurately grasp the adjustment range of the severity and lightness of the sentencing circumstances, and ensure that the criminal responsibility and punishment are appropriate.
（7） For defendants who commit telecommunications fraud crimes, the scope of probation application should be strictly controlled, and the conditions for applying probation should be strictly grasped.
（8） For defendants who commit telecommunications network fraud crimes, greater attention should be paid to the application of property penalties in accordance with the law, increased economic penalties, and maximum deprivation of the defendant's ability to repeat the crime.
3、 Fully punish related crimes
（1） In the implementation of telecommunications network fraud activities, the illegal use of "fake base stations" and "black broadcasts" to interfere with the order of wireless communication complies with the second clause of the Criminal Law