What should be the penalty for making a fortune from a national crisis during the epidemic?
Time:
2020-02-05
Author:
Chen Kepeng
Source:
Guangxi Tongwang Law Firm
Visits:
34
Currently, people from all walks of life are donating money and materials to assist relevant units and institutions in jointly fighting the menacing novel coronavirus. In particular, Wuhan, as the area most severely affected by this epidemic, is affecting the hearts of people across the country, and most of the anti-epidemic materials are gathered here from all over the country and even the world. In addition, the Ministry of Finance and local financial departments at all levels have also allocated funds to support Wuhan in building emergency treatment facilities and purchasing epidemic prevention and control materials. Various materials donated by all sectors of society and special materials allocated by the state finance become anti-epidemic materials once they enter the management scope of anti-epidemic-related functional departments and social welfare organizations. According to the law, actors (including units) with different identities may commit different criminal charges if they illegally obtain these anti-epidemic materials through different means. Today, we will analyze with you what crimes may be constituted by actors (or units) with different identities illegally obtaining anti-epidemic materials.
1. Crimes that state actors may commit by illegally obtaining anti-epidemic materials
State actors include two categories: one is personnel engaged in public service in state organs, and the other is state personnel who are "regarded as state personnel", who can be called "quasi-state personnel". Quasi-state actors include three types: first, personnel engaged in public service in state-owned companies, enterprises, institutions, and people's organizations; second, personnel dispatched by state organs, state-owned companies, enterprises, and institutions to non-state-owned companies, enterprises, institutions, and social organizations to engage in public service; and third, other personnel engaged in public service in accordance with the law.
(1) Embezzlement crime
《Criminal Law》Article 382: A state actor who takes advantage of his position to embezzle, steal, defraud or illegally possess public property by other means commits the crime of embezzlement.
《Criminal Law》Article 383: A person who commits the crime of embezzlement shall be punished according to the circumstances of the case in accordance with the following provisions: (1) If the amount of embezzlement is relatively large or there are other more serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined; (2) If the amount of embezzlement is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined or have his property confiscated; (3) If the amount of embezzlement is particularly huge or there are other particularly serious circumstances, he 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 the amount is particularly huge and the interests of the state and the people suffer particularly heavy losses, he shall be sentenced to life imprisonment or death, and shall also have his property confiscated.
Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Embezzlement and Bribery: ... If the amount of embezzlement is more than 10,000 yuan but less than 30,000 yuan and one of the following circumstances exists, it shall be recognized as "other more serious circumstances" as stipulated in paragraph 1 of Article 383 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined in accordance with the law: (1) Embezzling specific funds and materials for disaster relief, emergency rescue, flood prevention, preferential treatment, poverty alleviation, immigration, relief, epidemic prevention, social donations, etc.; ...
Lawyer analysis
A state actor who takes advantage of his position to embezzle, steal, defraud or illegally possess special anti-epidemic funds or anti-epidemic materials allocated by the state may constitute this crime.
According to the provisions of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Embezzlement and Bribery, the starting point for ordinary embezzlement is 30,000 yuan, while the starting point for embezzling anti-epidemic materials is 10,000 yuan, and the starting points for "huge amount" and "particularly huge amount" are also lower than those for embezzling ordinary property, which demonstrates the particularity of anti-epidemic materials and the severity of the punishment for embezzling anti-epidemic materials.
(2) Crime of misappropriation of public funds
《Criminal Law》Article 384: A state actor who takes advantage of his position to misappropriate public funds for personal use, engage in illegal activities, or misappropriate a relatively large amount of public funds for profit-making activities, or misappropriate a relatively large amount of public funds and fails to return them for more than three months commits the crime of misappropriation of public funds and shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years. If a huge amount of public funds is misappropriated and not returned, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment. A person who misappropriates funds and materials for disaster relief, emergency rescue, flood prevention, preferential treatment, poverty alleviation, immigration, and relief for personal use shall be given a heavier punishment.
Lawyer analysis
A state actor who commits the following three acts by taking advantage of his position may constitute this crime: (1) Misappropriating special anti-epidemic funds or anti-epidemic materials allocated by the state for personal use to engage in illegal activities; (2) Misappropriating a relatively large amount of special anti-epidemic funds or anti-epidemic materials allocated by the state for profit-making activities; (3) Misappropriating a relatively large amount of special anti-epidemic funds or anti-epidemic materials allocated by the state and failing to return them for more than three months. Among them, the starting amount for misappropriation for illegal activities is 30,000 yuan, and the starting amount for misappropriation for profit-making activities or failure to return within three months is 500,000 yuan. There are two main differences between the crime of misappropriation of public funds and the crime of embezzlement. First, the subjective purpose of the perpetrator of the crime of embezzlement is to take the anti-epidemic funds and materials for himself, while the perpetrator of the crime of misappropriation of public funds has the intention to return the relevant funds. Second, the crime of embezzlement is objectively manifested as using methods such as embezzlement, theft, and fraud to take possession of anti-epidemic materials, and the perpetrator often takes measures such as destroying, altering, and forging receipts, accounts, etc.; while the act of the crime of misappropriation of public funds is manifested as making a decision to use anti-epidemic funds without authorization, although sometimes some deceptive means are also used, but generally methods such as embezzlement, theft, and fraud are not used.
2. Crimes that employees of non-state actors may commit by illegally obtaining anti-epidemic materials
The 《Criminal Law》 stipulates that some employees of special units or personnel of non-state organs may also commit crimes by obtaining specific anti-epidemic materials.
(1) Crime of misappropriation of specific funds and materials
《Criminal Law》Article 273: Whoever misappropriates funds and materials for disaster relief, emergency rescue, flood prevention, preferential treatment, poverty alleviation, immigration, and relief, if the circumstances are serious, causing significant damage to the interests of the state and the people, the directly responsible person shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
Lawyer analysis
The subject of this crime is the unit, but the criminal law also stipulates that personnel in public institutions or social organizations who are directly responsible for the management and distribution of anti-epidemic materials should be punished for constituting this crime, such as the main leaders of the unit, accounting personnel, and personnel who distribute funds and materials.
(2) Crime of embezzlement
《Criminal Law》Article 271: A person of a company, enterprise or other unit who takes advantage of his position to illegally possess the property of his unit, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also be sentenced to confiscation of property.
Lawyer analysis
This crime mainly targets personnel in public institutions and social organizations who, although not directly managing anti-epidemic materials, can illegally obtain relevant anti-epidemic materials by taking advantage of their positions, such as inventory personnel, security personnel, and even temporary workers may also constitute a crime.
(III) Crime of Embezzlement of Funds
Article 272 of the "Criminal Law": If an employee of a company, enterprise, or other unit, by taking advantage of their position, embezzles the funds of their unit for personal use or lends them to others, and the amount is relatively large and not repaid after more than three months, or although not exceeding three months, the amount is relatively large and used for profit-making activities, or for illegal activities, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the amount of funds embezzled from their unit is huge, or the amount is relatively large and not returned, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
Lawyer analysis
This crime mainly targets personnel in public institutions and social organizations who, although not directly managing anti-epidemic materials, can illegally obtain relevant anti-epidemic materials by taking advantage of their positions. There are two main differences from the aforementioned crime of embezzlement. First, the perpetrator of the crime of embezzlement of funds has the intention to return the funds, while the subjective purpose of the perpetrator of the crime of embezzlement is to take possession of the anti-epidemic funds and materials. Second, the method of the crime of embezzlement of funds is embezzlement, that is, embezzling materials for personal use or lending them to others without legal approval or permission; the method of the crime of embezzlement is appropriation, that is, the perpetrator uses the convenience of their position to embezzle, steal, defraud, or illegally possess anti-epidemic materials by other means.
Three, Crimes That Other Personnel May Commit by Illegally Obtaining Anti-epidemic Materials
Currently, due to the shortage of materials, everyone is eager for anti-epidemic materials. Some ordinary people may commit the following crimes by illegally obtaining anti-epidemic materials.
(I) Crime of Fraud
Article 266 of the "Criminal Law": Whoever defrauds public or private property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and may also be sentenced to a fine; if the amount is huge or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be sentenced to a fine; if the amount is particularly huge or there are other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be sentenced to a fine or confiscation of property. If there are other provisions in this law, those provisions shall prevail.
Article 2 of the "Interpretations 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": If the amount of public or private property defrauded reaches the amount standard stipulated in Article 1 of these Interpretations, and one of the following circumstances exists, it may be punished more severely at the discretion of the court in accordance with the provisions of Article 266 of the Criminal Law: ... (II) Defrauding disaster relief, emergency rescue, flood prevention, preferential treatment, poverty alleviation, immigration, relief, or medical funds and materials; ...
Lawyer analysis
The starting amount for the crime of fraud shall be jointly researched and determined by the Higher People's Courts and People's Procuratorates of each province, autonomous region, and municipality directly under the Central Government, in light of the economic and social development of the region, within the amount range of 3,000 yuan to 10,000 yuan, and fraud of anti-epidemic materials may be punished more severely at the discretion of the court in accordance with the aforementioned standards.
(II) Crime of Robbery
Article 263 of the "Criminal Law": Whoever robs public or private property by violence, coercion, or other methods shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be sentenced to a fine; if one of the following circumstances exists, shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment, or death, and shall also be sentenced to a fine or confiscation of property: ... (VIII) Robbing military supplies or emergency rescue, disaster relief, or relief supplies. ...
Lawyer analysis
Ordinary robbery does not require a specific amount; as long as the perpetrator uses violence, coercion, or other equivalent means to illegally obtain anti-epidemic materials, they may be guilty of this crime.
(III) Crime of Snatching
Article 267 of the "Criminal Law": Whoever snatches public or private property, if the amount is relatively large, or snatches multiple times, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and may also be sentenced to a fine; if the amount is huge or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be sentenced to a fine; if the amount is particularly huge or there are other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be sentenced to a fine or confiscation of property.
Article 2 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Snatching" stipulates that if one of the following circumstances exists when snatching public or private property, the standard for "relatively large amount" shall be determined according to 50% of the standard stipulated in the preceding article: ... (VIII) Snatching disaster relief, emergency rescue, flood prevention, preferential treatment, poverty alleviation, immigration, or relief funds and materials; (IX) Snatching at the scene of a natural disaster, accident disaster, social security incident, or other sudden event; ...
Lawyer analysis
The starting amount for the crime of snatching shall be determined by the Higher People's Courts and People's Procuratorates of each province, autonomous region, and municipality directly under the Central Government based on the economic development of the region and considering the social security situation, within the amount range of 1,000 yuan to 3,000 yuan, and snatching anti-epidemic materials shall be determined according to 50% of the aforementioned standards.
(IV) Crime of Theft
Article 264 of the "Criminal Law": Whoever steals public or private property, if the amount is relatively large, or steals multiple times, steals by entering a house, steals with a weapon, or picks pockets, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and may also be sentenced to a fine; if the amount is huge or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be sentenced to a fine; if the amount is particularly huge or there are other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be sentenced to a fine or confiscation of property.
Article 2 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft" stipulates that if one of the following circumstances exists when stealing public or private property, the standard for "relatively large amount" may be determined according to 50% of the standard stipulated in the preceding article: ... (IV) Stealing at the scene of a natural disaster, accident disaster, social security incident, or other sudden event; ... (VII) Stealing disaster relief, emergency rescue, flood prevention, preferential treatment, poverty alleviation, immigration, or relief funds and materials; ...
Lawyer analysis
The starting amount for the crime of theft shall be determined by the Higher People's Courts and People's Procuratorates of each province, autonomous region, and municipality directly under the Central Government based on the economic development of the region and considering the social security situation, within the amount range of 1,000 yuan to 3,000 yuan, and theft of anti-epidemic materials shall be determined according to 50% of the aforementioned standards.
(V) Crime of Picking Quarrels and Provoking Troubles
Article 293 of the "Criminal Law": Whoever picks quarrels and provokes troubles by any of the following acts, thus disrupting public order, shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance: (1) arbitrarily beating up another person with heinous circumstances; (2) chasing, intercepting, insulting or intimidating another person with heinous circumstances; (3) forcibly taking or arbitrarily destroying or occupying public or private property with serious circumstances; (4) creating disturbances in public places, thus causing serious confusion in the order of public places. Whoever assembles others to commit the acts mentioned in the preceding paragraph for many times, thus seriously disrupting public order, shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and may also be sentenced to a fine.
Lawyer analysis
Rushing to loot anti-epidemic supplies or making unreasonable demands and forcibly demanding anti-epidemic supplies may constitute this crime.
(VI) The crime of concealing or covering up criminal proceeds and proceeds from crime
Article 312 of the "Criminal Law": Whoever, knowing that it is criminal proceeds and the proceeds arising therefrom, provides shelter, transfers, purchases, sells on his behalf, or conceals or covers it up by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be sentenced to a fine; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be sentenced to a fine.
Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Criminal Cases of Concealing or Covering up Criminal Proceeds and Proceeds Thereof: Whoever, knowing that it is criminal proceeds and the proceeds arising therefrom, provides shelter, transfers, purchases, sells on his behalf, or conceals or covers it up by other means, and commits any of the following circumstances, shall be convicted and punished as the crime of concealing or covering up criminal proceeds and proceeds thereof in accordance with the provisions of Article 312, Paragraph 1 of the Criminal Law: ... (III) concealing or covering up the criminal proceeds are power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or disaster relief, emergency rescue, flood control, preferential treatment, poverty alleviation, immigration, and relief funds and materials; ...
Lawyer analysis
Knowing that others have obtained anti-epidemic supplies through illegal means, and still providing shelter, transferring, purchasing, selling on their behalf, or concealing or covering them up by other means, may constitute this crime.
Friendly reminder
Finally, the lawyer would like to remind everyone that, as mentioned above, the approval, management, distribution, use, and supervision of anti-epidemic materials must follow strict procedures and systems. Due to the urgency and importance of the use or objects of anti-epidemic materials, crimes involving illegally obtaining anti-epidemic materials reflect typical normative violations and serious practical harm, which the criminal law focuses on suppressing. Of course, due to the current severe epidemic and emergency situation, there may be special circumstances, but even so, after the emergency distribution, distribution, and use of anti-epidemic materials, registration and inventory measures should be taken in a timely manner so that there are accounts to check and accounts to compare in the future. In addition, the receipt and consumption of anti-epidemic materials should be announced in a timely manner, so that the Party and the government, the people of the whole country, and enthusiastic donors can have an explanation, so that every citizen can feel the warmth in this cold winter of fighting the virus.