Lawyer

Chapter 1050 Key Points

After hearing this, Meng Guangda frowned, raised his hand to smooth his hair out of habit, cleared his throat and said: "I remember that Amendment ([-]) of the Criminal Law amended the applicable conditions for probation and changed the original substantive elements. According to the circumstances of the crime and the performance of repentance, it is further divided into "the circumstances of the crime are relatively minor", "the crime is relatively minor", "there is no risk of re-offending" and "the crime will not have a significant negative impact on the community where he lives".

It can be seen that it is feasible for Lawyer Ji to use 'the crime is relatively minor' as the criterion to determine whether probation is applicable..."

When Yun Qiao saw Brother Da open his mouth, he knew that he was going to make an academic speech again. She waited quietly for his next words, knowing that he would not end his speech by agreeing with Lawyer Ji's opinion.

"But..." Meng Guangda continued.

Yun Qiao smiled when he heard this, and then glanced at Zhou Ying and Yu Wendong. The two smiled. Obviously they also knew Da Ge's habits.

"But how to define the 'criminal circumstances' in 'less serious criminal circumstances' is a problem. I think the 'criminal circumstances' focus on reflecting the overall social harm of the crime, and are important to the subject of the crime, the subjective aspects of the crime, the object of the crime and the object of the crime as well as Comprehensive investigation and comprehensive evaluation of objective aspects of crime.

The criminal circumstances of specific crimes in the "Criminal Law" are generally expressed as three levels: ordinary circumstances, serious circumstances, and particularly serious circumstances.They are the criminal factors that determine the level of punishment. In criminal law theory, they are also called basic composition and aggravated composition.

Judging from the text of the "Criminal Law" and the provisions of judicial interpretations, the various circumstances in the specific crimes of the "Criminal Law" are mainly reflected in the evaluation of the objective aspects of the crime, and generally do not involve other criminal elements such as the criminal subject and the criminal object, especially It's a crime of amount.

It can be seen that the 'criminal circumstances' in the applicable requirements for probation are not the same thing as the 'criminal circumstances' in the specific charges, have different meanings, and are not logically identical or naturally corresponding.

So, I don't think the two should be confused.

In other words, it cannot be considered that any situation with "serious circumstances" stipulated in the sub-provisions of the "Criminal Law" does not fall into the "minor circumstances" stipulated in Article No. 70 of the "Criminal Law".

Otherwise, it is easy to conclude that any defendant with serious circumstances who should be sentenced to three years in prison according to law cannot be subject to probation. "Meng Guangda explained.

Ji Hongying is also a senior lawyer, so she can naturally understand Meng Guangda's explanation. She said nothing, thinking about Da Ge's explanation.

"I remember that Article 176 of the Criminal Law stipulates that whoever illegally absorbs public deposits or absorbs public deposits in disguised form and disrupts financial order shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined; if the amount is huge or there are other serious circumstances, Those who commit crimes 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, they shall be sentenced to fixed-term imprisonment of not less than ten years and not less than ten years and shall also be fined.

This case involves more than 176 million, which should be a particularly huge amount. Therefore, I think the defendant may be sentenced to more than ten years in prison. If so, how to apply probation? "After Cao Yongzheng finished speaking, he looked at Du Yong and Song Hui. "This is how I understand it. Article [-] of the "Criminal Law" on the crime of illegally absorbing public deposits only mentions that those with huge amounts or other serious circumstances will be sentenced to three years. The offender shall be sentenced to fixed-term imprisonment of not less than ten years but not more than ten years; 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.However, the current judicial interpretation does not clearly stipulate particularly large amounts.

而所谓的‘数额巨大或者有其他严重情节’，依照《最高人民法院关于审理非法集资刑事案件具体应用法律若干问题的解释》第三条第二款的规定，是指非法吸收或变相吸收公众存款具有下列情形之一的：（1）个人犯罪数额100万元（单位500万元）以上；（2）个人所涉存款对象100人以上（单位500人以上）；（3）个人给存款人造成直接经济损失数额50万元（单位250万元）以上；（4）造成特别恶劣的社会影响或者其他特别严重后果。

Judging from the above provisions, the first three situations corresponding to the determination of "huge amount" focus on the amount of the crime and the number of criminal objects; the fourth situation corresponds to "other serious circumstances" and focus on the harmful consequences of the crime.

The so-called 'particularly bad social impact' or 'other particularly serious consequences', from the perspective of judicial practice, mainly refer to crimes that lead to the suicide of the victim, resulting in mass SF, seriously affecting social stability, and causing great public outrage. Strong demands are made for stricter Disposal and other situations.

As far as this case is concerned, although the amount involved is more than 2 million, there are no other particularly serious circumstances in this case.Judging from the amount, the amount in this case is huge.

Therefore, I think the sentencing range in this case should be between three years and ten years in prison.

According to typical cases issued by the Supreme Court, for those who are punished purely because of the "huge amount", in judicial practice, the criminal harm can be repaired to a considerable extent through economic means such as returning stolen goods, and suspended sentences can be applied.

For those with "other serious circumstances", out of consideration of the social acceptability of judicial decisions and other social effects, suspended sentences will generally not be applied even if they are sentenced at the starting point of three years' imprisonment. "Song Hui explained.

"In this case, the defendant illegally absorbed more than 2 million in funds. Although the crime of illegally absorbing public deposits does not stipulate an 'extremely huge amount', the crime amount in this case should be considered an 'extremely huge amount' compared to ordinary cases. If We suggest that the court sentence the defendant to three years in prison and apply a suspended sentence. Does this violate the principle of proportionality of crime and punishment?" Sui Xia suddenly asked.

“Well, the issue you mentioned may become a key point in the sentencing of this case, but I think the crime of illegally absorbing public deposits has its special characteristics.

For general amount offenders, the amount of the crime itself is the main factor that determines the seriousness of the crime. When the total amount of the crime is far greater than the statutory starting penalty amount and there are no statutory mitigating circumstances, it is indeed against the law to still impose the starting point penalty. The principle of proportionality of crime and punishment.

However, regarding the crime of illegally absorbing public deposits, Article [-], Paragraph [-] of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising" clearly stipulates that illegally absorbing public deposits or absorbing them in disguised form is mainly used for production and operation. If the funds absorbed can be withdrawn in a timely manner, criminal punishment will be exempted; if the circumstances are obviously minor, they will not be treated as crimes.

This is also a clear difference between the crime of illegally absorbing public deposits and general crimes.Don’t just look at the amount of crime. " Du Yong replied.

(End of this chapter)