WANG Xinming, A Contract Fraud Case CHINA GUIDING CASES PROJECT

Transcription

1 WANG Xinming, A Contract Fraud Case Guiding Case No. 62 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on June 30, 2016) CHINA GUIDING CASES PROJECT English Guiding Case (EGC62) September 10, 2018 Edition The citation of this translation of this Guiding Case is: 王新明合同诈骗案 (WANG Xinming, A Contract Fraud Case), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC62), Sept. 10, 2018 Edition, The original, Chinese version of this case is available at 中国法院网 ( See also 最高人民法院关于发布第 13 批指导性案例的通知 (Notice of the Supreme People s Court on the Release of the 13th Batch of Guiding Cases), issued on and effective as of June 30, 2016, This document was primarily prepared by Nathan Harpainter, Sean Webb, and Dr. Mei Gechlik; it was finalized by Dimitri Phillips and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People s Court.

2 Keywords Criminal Contract Fraud Amount-Based Crime Completed Attempted Main Points of the Adjudication Where, in an amount-based crime, the completed part and the attempted part correspond to different ranges of statutory sentences, [a people s court] should first decide whether to mitigate punishment for the attempted part and determine the attempted part s corresponding range of statutory sentences. [The court should] then compare it with the completed part s corresponding range of statutory sentences, select the heavier applicable range of statutory sentences, and impose a heavier punishment on a discretionary basis. Where [the completed part and the attempted part of the crime] have the same sentencing range, [the court] shall, in accordance with the completed part s [corresponding range of statutory sentences], impose a heavier punishment on a discretionary basis. Related Legal Rule(s) Article 23 of the Criminal Law of the People s Republic of China 1 Basic Facts of the Case On July 29, 2012, defendant WANG Xinming used a forged household booklet and identity card to pass himself off as [a certain] homeowner, i.e., WANG Xinming s father, and signed a housing sale and purchase contract with a certain XU, the victim, at the Gucheng Park Store of Lianjia Real Estate Brokerage Co., Ltd. 2 in the Shijingshan District of Beijing Municipality, in order to sell a housing [unit] in Building No. 28 on Gucheng Road in the same district. The agreed purchase price of the housing [unit] was RMB 1 million and [WANG Xinming] collected a deposit of RMB 10,000 from XU on the spot. On August 12 of the same year, WANG Xinming further collected from XU a down payment of RMB 290,000 for the purchase of the housing [unit] and [the two parties] agreed that the remaining balance would be paid after ownership was transferred. Afterwards, while the two parties were going through the procedures for transferring ownership of the housing [unit], 1 中华人民共和国刑法 (Criminal Law of the People s Republic of China), passed on July 1, 1979, issued on July 6, 1979, effective as of Jan. 1, 1980, revised on Mar. 14, 1997, effective as of Oct. 1, 1997, amended ten times, most recently on Nov. 4, 2017, effective as of Nov. 4, 2017, 2 The name 链家房地产经纪有限公司 is translated here literally as Lianjia Real Estate Brokerage Co., Ltd.

3 WANG Xinming s fake identity was discovered by the staff of the Housing and Construction Commission of Shijingshan District and WANG Xinming did not obtain the remaining balance. On April 23, 2013, WANG Xinming was tracked down and caught by the public security organs. The following day, WANG Xinming s relative(s) returned the illicit money to victim XU, who then expressed forgiveness and understanding towards WANG Xinming. Results of the Adjudication After handling [the case], on August 23, 2013, the Shijingshan District People s Court of Beijing Municipality rendered the (2013) Shi Xing Chu Zi No. 239 Criminal Judgment, opining that defendant WANG Xinming s acts constituted the crime of contract fraud [involving] an enormous amount. Given that he had given true accounts of the facts of [his] crimes, returned, with his relative(s) assistance, all illicit money as compensation, and obtained the victim s forgiveness and understanding, [the court] imposed, in accordance with law, a lesser punishment on him. The crime charged by the Shijingshan District People s Procuratorate of Beijing Municipality, the public prosecution organ, was established. However, the [organ s] opinion that [the crime at issue] was an attempted crime [involving] a particularly enormous amount was mistaken. [The court] corrected [this mistake]. Therefore, defendant WANG Xinming was held to have committed the crime of contract fraud and was sentenced to a limited-term imprisonment of six years and fined RMB 6,000. After the judgment was pronounced, the public prosecution organ lodged a protest, arguing that the amount [involved in] the commission of crime should be RMB 1 million, which was a particularly enormous amount, and that the original judgment s determination that [only] an enormous amount was involved was an erroneous application of law [because] the court merely based [the determination] on the RMB 300,000 completed [part], without commenting on the RMB 700,000 attempted [part]. The opinions of the No. 1 Branch of the People s Procuratorate of Beijing Municipality in support of the protest were consistent with the views [described above]. WANG Xinming appealed on the ground of excessive sentencing in the original judgment, [but then] applied to withdraw the appeal during the court proceedings. After handling [the case], on December 2, 2013, the No. 1 Intermediate People s Court of Beijing Municipality rendered the (2013) Yi Zhong Xing Zhong Zi No Criminal Ruling: [the court] allows appellant WANG Xinming to withdraw his appeal and upholds the original judgment. Reasons for the Adjudication In the effective ruling, the court opined: 3 WANG Xinming, for the purpose of illegal possession, signed the contract in the name of another person, and his acts constituted the crime of contract fraud. The court [rendering] the first-instance judgment clearly [ascertained] the facts, 3 The Chinese text does not specify which court opined. Given the context, this should be the No. 1 Intermediate People s Court of Beijing Municipality.

4 the evidence was credible and sufficient, the determination of the nature [of the crime] was accurate, and the adjudication procedures were lawful. However, it was improper [for that court] not to comment on the criminal fact that an attempted RMB 70,000 [part was involved]. [This mistake] was corrected. In accordance with relevant provisions of the Criminal Law and a judicial interpretation, [the second-instance court] considered various factors, including WANG Xinming s contract fraud with a completed [part] of RMB 300,000 and an attempted [part] of RMB 700,000 (but punishment for this part could be reduced), WANG Xinming s having given true accounts of the facts of [his] crime, his return of all illicit money as compensation, and his obtaining the victim s forgiveness and understanding, and [decided that it] should uphold the sentencing in the original judgment [because it] was within the range of statutory sentences and the protesting organ did not raise any objection to the sentence. [Both] the protest opinions of the Shijingshan District People s Procuratorate of Beijing Municipality and the opinions of the No. 1 Branch of the People s Procuratorate of Beijing Municipality in support of the protest were accepted [by the court] after consideration. Given that WANG Xinming had applied to withdraw his appeal during the second-instance [adjudication] and the application for withdrawal of appeal was in compliance with legal provisions, the secondinstance court ruled to allow, in accordance with law, the withdrawal of the appeal and to uphold the original judgment. The focal point of the dispute in this case was how to carry out sentencing for an amountbased crime when both completed and attempted [parts] of the crime exist. 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 Laws in Handling Criminal Cases of Fraud provides: 4 Where a fraud [case] involves both completed and attempted [parts], with each corresponding to different sentencing ranges, [a people s court] shall impose a punishment in accordance with the provision [giving] a heavier punishment; where [the two parts] have the same sentencing range, [the court] shall impose a punishment in accordance with the completed crime of fraud. Therefore, with respect to an amount-based crime in which both the completed and attempted criminal acts coexist and constitute the commission of a crime, when [a people s court] determines the range of statutory sentences applicable to the whole case, it [should] first decide whether to mitigate punishment for the attempted part and determine the attempted part s corresponding range of statutory sentences. [The court should] then compare it with the completed part s 4 最高人民法院 最高人民检察院关于办理诈骗刑事案件具体应用法律若干问题的解释 (Interpretation of the Supreme People s Court and the Supreme People s Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud), passed by the Adjudication Committee of the Supreme People s Court on Feb. 21, 2011, and by the Procuratorial Committee of the Supreme People s Procuratorate on Nov. 24, 2010, issued on Mar. 1, 2011, effective as of Apr. 8, 2011,

5 corresponding range of statutory sentences and determine the range of statutory sentences applicable to the whole case. Where the completed part s corresponding range of statutory sentences is heavier or [the completed part and the attempted part of the crime] have the same [range of statutory sentences], [the court] should, in accordance with the completed part s corresponding range of statutory sentences, determine the range of statutory sentences applicable to the whole case. [The court should] use other circumstances, including the attempted part [of the crime], as the adjustment factors for determining the starting point of sentencing and then determine the benchmark sentence. Where the attempted part s corresponding range of statutory sentences is heavier, [the court] should, in accordance with the attempted part s corresponding range of statutory sentences, determine the range of statutory sentences applicable to the whole case. [The court should] use other circumstances, including the completed part [of the crime], together with the circumstances [showing] the incompleteness of the attempted part [of the crime], as the adjustment factors for [determining] the starting point of sentencing and then determine the benchmark sentence. In this case, the completed part of WANG Xinming s criminal act of contract fraud was RMB 300,000. According to the judicial interpretation and the specific enforcement standards of Beijing Municipality, the corresponding range of statutory sentences was a limited-term imprisonment of three to ten years. 5 The attempted part [of his criminal act] was RMB 700,000, for which, [in consideration of] the specific circumstances of this case, a sentence that was reduced by one-grade should be imposed and[, therefore,] the attempted part s range of statutory sentences should be a limited-term imprisonment of three to ten years. This was the same as the RMB 300,000 completed part s corresponding range of statutory sentences. Thus, based on the basic criminal fact of [committing] fraud with a completed [part] of RMB 300,000, [the court] determined that the range of statutory sentences applicable to WANG Xinming was a limited-term imprisonment of three to ten years. [The court] used as sentencing circumstances the criminal fact [of committing fraud] with an attempted part of RMB 700,000, along with [WANG Xinming s] having given true accounts of the facts of [his] crime, his return of all illicit money as compensation, and his obtaining the victim s forgiveness and understanding, and [decided to] give WANG Xinming a lesser punishment by sentencing him to a limited-term imprisonment of six years and fining him RMB 6,000. (Adjudication personnel of the effective ruling: GAO Song, LÜ Jing, and WANG Yan) 5 The text reads 三年以上十年以下, which is translated herein as three to ten years because Article 99 of the Criminal Law provides that any reference relating a number with 以上 ( above ), 以下 ( below ), or 以内 ( within ) includes the number itself. See 中华人民共和国刑法 (Criminal Law of the People s Republic of China), supra note 1, Article 99.