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Guiding Case No. 62 of the Supreme People's Court: Case concerning Wang Xinming's Contract Fraud (case concerning contract fraud)
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指导案例62号：王新明合同诈骗案
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【法宝引证码】
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| ??Guiding Case No. 62 of the Supreme People's Court: Case concerning Wang Xinming's Contract Fraud | | 指导案例62号：王新明合同诈骗案 |
| (Issued on June 30, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) | | （最高人民法院审判委员会讨论通过 2016年6月30日发布） |
| Guiding Case No. 62 | | 指导案例62号 |
| ????Keywords | | 关键词 |
| criminal; contract fraud; amount-related crime; accomplished offense; attempted offense | | 刑事/合同诈骗/数额犯/既遂/未遂 |
| Key Points of Judgment | | 裁判要点 |
| Where in an amount-related crime, there are different sentencing ranges for accomplished offense and attempted offense, the court shall first decide whether to give the criminal offender a mitigated punishment under attempted offense and determine the statutory sentencing range of attempted offense, and then compare such statutory sentencing range with that of accomplished offense, and select the statutory sentencing range with a heavier punishment and give the criminal offender a heavier punishment depending on the actual circumstances; if accomplished offense and attempted offense are of the same sentencing range, the criminal offender shall be given a heavier punishment under accomplished offense. | | 在数额犯中，犯罪既遂部分与未遂部分分别对应不同法定刑幅度的，应当先决定对未遂部分是否减轻处罚，确定未遂部分对应的法定刑幅度，再与既遂部分对应的法定刑幅度进行比较，选择适用处罚较重的法定刑幅度，并酌情从重处罚；二者在同一量刑幅度的，以犯罪既遂酌情从重处罚。 |
| Relevant Legal Provisions | | 相关法条 |
| Article 23 of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第23条 |
| Basic Facts | | 基本案情 |
| On July 29, 2012, by using forged household register and identity card and pretending himself as his father, the house owner, defendant Wang Xinming concluded a housing sales contract with a victim surnamed Xu at Gucheng Park Store of Beijing Lianjia Real Estate Agency Co., Ltd. in Shijingshan District on the ground of selling a house of No. 28 Building located in Gucheng Road of Shijingshan District. Both parties stipulated that the purchase price of the house was 1 million yuan and Wang Xinming received the earnest money of 10,000 yuan from Xu on the spot. On August 12 of the same year, Wang Xinming received the down payment of 290,000 yuan for purchasing the house from Xu and they agreed that the residual payment would be paid after the transfer of the house ownership. Afterwards, when both parties handled formalities for the transfer of the house ownership, the false identity of Wang Xinming was identified by personnel of the Housing and Urban-Rural Development Commission of Shijingshan District and Wang Xinming failed to obtain the residual payment. On April 23, 2013, Wang Xinming was captured by the public security organ. On the next day, relatives of Wang Xinming refunded Xu the illicit money and the victim Xu forgave Wang Xinming. | | 2012年7月29日，被告人王新明使用伪造的户口本、身份证，冒充房主即王新明之父的身份，在北京市石景山区链家房地产经纪有限公司古城公园店，以出售该区古城路28号楼一处房屋为由，与被害人徐某签订房屋买卖合同，约定购房款为100万元，并当场收取徐某定金1万元。同年8月12日，王新明又收取徐某支付的购房首付款29万元，并约定余款过户后给付。后双方在办理房产过户手续时，王新明虚假身份被石景山区住建委工作人员发现，余款未取得。2013年4月23日，王新明被公安机关查获。次日，王新明的亲属将赃款退还被害人徐某，被害人徐某对王新明表示谅解。 |
| Judgment | | 裁判结果 |
| After the trial, on August 23, 2013, the People's Court of Shijingshan District, Beijing Municipality rendered a criminal judgment (No. 239 [2013], First, Criminal Division, People's Court, Shijingshan). The people's Court of Shijingshan District held that: The acts of defendant Wang Xinming constituted a crime of contract fraud involving a huge amount and Wang Xinming should be given a lighter punishment according to the law since he truthfully confessed to his crime, refunded all illicit money under the assistance of his relatives, and was forgiven by the victim. The charge of the public prosecution organ, People's Procuratorate of Shijingshan District, Beijing Municipality, was tenable; however, the determination of extremely huge amount and attempted offense was erroneous and should be corrected. Therefore, the People's Court of Shijingshan District determined that defendant Wang Xinming should be sentenced to a fixed-term imprisonment of six years under the crime of contract fraud and a fine of 6,000 yuan should be imposed on him. After the judgment was pronounced, the public prosecution organ filed an appeal. It held that the amount involved in the crime should be 1 million yuan, which was an extremely huge amount. However, the original judgment did not evaluate the amount of 700,000 yuan involved in attempted offense and determined a huge amount only based on the amount of 300,000 yuan involved in accomplished offense, which was erroneous application of law. The appeal opinions of the No. 1 Branch of the People's Procuratorate of Beijing Municipality were consistent with those of the public prosecution organ. Wang Xinming appealed on the ground that the sentencing in the original judgment was over-heavy, but he applied for withdrawing the appeal during trial of the court. After the trial, on December 2, 2013, the No. 1 Intermediate People's Court of Beijing Municipality rendered a criminal ruling (No. 4134 [2013], Final, Criminal Division, No. 1 IPC, Beijing) that Wang Xinming was approved to withdraw the appeal and the original judgment should be affirmed. | | 北京市石景山区人民法院经审理于2013年8月23日作出（2013）石刑初字第239号刑事判决，认为被告人王新明的行为已构成合同诈骗罪，数额巨大，同时鉴于其如实供述犯罪事实，在亲属帮助下退赔全部赃款，取得了被害人的谅解，依法对其从轻处罚。公诉机关北京市石景山区人民检察院指控罪名成立，但认为数额特别巨大且系犯罪未遂有误，予以更正。遂认定被告人王新明犯合同诈骗罪，判处有期徒刑六年，并处罚金人民币六千元。宣判后，公诉机关提出抗诉，认为犯罪数额应为100万元，数额特别巨大，而原判未评价70万元未遂，仅依据既遂30万元认定犯罪数额巨大，系适用法律错误。北京市人民检察院第一分院的支持抗诉意见与此一致。王新明以原判量刑过重为由提出上诉，在法院审理过程中又申请撤回上诉。北京市第一中级人民法院经审理于2013年12月2日作出（2013）一中刑终字第4134号刑事裁定：准许上诉人王新明撤回上诉，维持原判。 |
| ．．．．．． | | ．．．．．． |
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