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Contract Fraud by Wang Xinming
Resources from:2016 LexisNexis
  
In an amount-based crime, if the accomplished part and the attempted part respectively correspond to different ranges of statutory penalties, whether to mitigate the punishment against the attempted part shall be firstly decided, and the range of statutory penalty corresponding to the attempted part shall be determined and then be compared with that to the accomplished part the range of statutory penalty involving heavier punishment shall be selected for application and a heavier punishment shall be imposed according to the circumstances; if both parts are within the same range of sentencing, a heavier punishment shall be imposed due to accomplished crime according to the circumstances
In an amount-based crime, if the accomplished part and the attempted part respectively correspond to different ranges of statutory penalties, whether to mitigate the punishment against the attempted part shall be firstly decided, and the range of statutory penalty corresponding to the attempted part shall be determined and then be compared with that to the accomplished part; the range of statutory penalty involving heavier punishment shall be selected for application and a heavier punishment shall be imposed according to the circumstances; if both parts are within the same range of sentencing, a heavier punishment shall be imposed due to accomplished crime according to the circumstances.
 
(Adopted upon discussion by the Judicial Committee of the Supreme People's Court and released on June 30, 2016)
 
Relevant Regulations

Article 23 of the Criminal Law of the People's Republic of China
 
Basic Case Facts

On July 29, 2012, the defendant Wang Xinming, by using the forged household register and ID card and the false identity as the house owner (Wang Xinming's father), signed a house purchase and sale contract with the victim Xu X concerning the sale of a house located at No.28, Gucheng Road, Shijingshan District, Beijing at Gucheng Park Branch of Lianjia Real Estate Management Co., Ltd. in Shijingshan District, Beijing; the agreed house purchase price was CNY1 million and Wang Xinming charged CNY10,000 as deposit from Xu X. On August 12 of the same year, Wang Xinming charged CNY290, 000 paid by Xu X as the down payment for house purchase and reached an agreement with Xu X with regard to the payment of the remaining price after the transfer of ownership. When both parties were going through the transfer formalities, the staff of the Commission of Housing and Urban-Rural Development of Shijingshan District, Beijing discovered Wang Xinming's false identity and the remaining price failed to be obtained. On April 23, 2013, Wang Xinming was ferreted out by the public security organ. On the next day (April 24), Wang Xinming's family refunded the illicit money to the victim Xu X, who expressed forgiveness to Wang Xinming.
 
Results of Judgment

On August 23, 2013, the People's Court of Shijingshan District, Beijing made the Criminal Judgment (Shi Xing Chu Zi [2013] No.239) upon trial, holding that the defendant Wang Xinming committed the crime of contract fraud with a huge amount; meanwhile, in consideration of Wang Xinming's truthful confession of corpus delicti, refund of all the illicit money with the help of the family thereof and obtainment of the forgiveness from the victim, a lighter punishment would be imposed on Wang Xinming according to the law. The accusation made by the public prosecution organ, namely, the People's Procuratorate of Shijingshan District, Beijing, was supported, however, its opinions on particularly huge amount and attempted crime were wrong and should be corrected. Then the defendant Wang Xinming was convicted of the crime of contract fraud and sentenced to a fixed-term imprisonment of six years and a fine amounting to CNY6, 000. After the judgment was pronounced, the public prosecution organ lodged a protest holding that the amount of crime should be CNY1 million, which was particularly huge, however, the original judgment did not evaluate the attempted amount of CNY700, 000, but determined that the amount of crime was huge only based on the accomplished amount of CNY300, 000, which was deemed as the error in application of laws. The opinion put forward by the No.1 Branch of the Beijing Municipal People's Procuratorate for supporting the protest was consistent therewith. Wang Xinming instituted an appeal for the reason of too heavy sentencing in the original judgment, but applied to withdraw the appeal during the hearing course of the court. On December 2, 2013, the Beijing No.1 Intermediate People's Court made the Criminal Verdict (Yi Zhong Xing Zhong Zi [2013] No.4134) upon hearing, holding that: the appealer Wang Xinming was allowed to withdraw the appeal and the original judgment was affirmed.
 
Reasons for Judgment

In the effective judgment, the court held: the conclusion of a contract in the name of another person by Wang Xinming for the purpose of illegal possession constituted the crime of contract fraud. The judgment of first instance was clear in facts, true and sufficient in evidence, accurate in determination of nature and legitimate in trial procedures, but it failed to evaluate the corpus delicti on the attempted amount of CNY700, 000, which was inappropriate, so it should be corrected. In accordance with the relevant provisions of the Criminal Law and judicial interpretations, and in consideration of the accomplished amount of CNY300,000 and the attempted amount of CNY700,000, for which a mitigated punishment may be imposed, involved in the contract fraud by Wang Xinming, truthful confession of corpus delicti, refund of all the illicit money for the victim's forgiveness and other factors, the sentence of the original judgment was within the range of statutory penalty and the protesting authority has no objection to such sentence as well, therefore it should be maintained. The protest opinions from the People's Procuratorate of Shijingshan District, Beijing and the opinions from the No.1 Branch of the Beijing Municipal People's Procuratorate for supporting the protest were adopted accordingly. Considering that Wang Xinming applied to withdraw the appeal during the second instance and such application met the legal provisions, the court of second instance ruled to allow Wang Xinming to withdraw the appeal and uphold the original judgment according to the law.

In this case, the focus of dispute was how to sentence when the accomplished and attempted parts exist together in an amount-based crime. It is specified in 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 the Law in Handling Criminal Cases of Fraud that "Frauds may be attempted and successful or attempted but failed, where different degrees of sentencing are reached, penalty shall be imposed in accordance with the provisions on heavier penalty; where the same degree of sentencing is reached, penalty shall be imposed on the offense of fraud". Therefore, under the condition that both accomplished and attempted parts exist in one amount-based crime and each constitutes a crime, the evaluation on whether to mitigate the punishment against the attempted part shall be firstly conducted to determine the range of statutory penalty corresponding to the attempted part when the range of statutory penalty applicable to the whole case is determined; then the range aforesaid shall be compared with that corresponding to the accomplished part to determine the range of statutory penalty applicable to the whole case. If the range of statutory penalty corresponding to the accomplished part is heavier or the same as that corresponding to the attempted part, the range corresponding to the accomplished part shall prevail in determining the range of statutory penalty applicable to the whole case and other circumstances, including the attempted part, shall be deemed as the adjustment factors to determine the starting point for sentencing for further determination of benchmark penalty. If the range of statutory penalty corresponding to the attempted part is heavier, such range shall prevail in determining the range of statutory penalty applicable to the whole case and other circumstances, including the accomplished part and the attempted circumstances in the attempted part, shall be deemed as the adjustment factors of the starting point for sentencing for further determination of benchmark penalty.

In this case, the range of statutory penalty corresponding to the accomplished part of CNY300,000 in the crime of contract fraud by Wang Xinming is a fixed-term imprisonment of not less than three years but not more than ten years in accordance with the judicial interpretations and the specific criteria of execution in Beijing; the attempted part of CNY700,000, in combination with the specific condition of this case, shall be punished at a decreased grade and the range of statutory penalty corresponding thereto shall be a fixed-term imprisonment of not less than three years but not more than ten years, same as that for the accomplished part of CNY300,000. Therefore, the range of statutory penalty applicable to Wang Xinming was a fixed-term imprisonment of not less than three years but not more than ten years determined at the basic corpus delicti of the accomplished amount of CNY300,000 in the crime of contract fraud; the corpus delicti of the attempted amount of CNY700,000, along with the truthful confession of corpus delicti, refund of all the illicit money, obtainment of forgiveness from the victim and other conditions were deemed as circumstances for sentencing; thus, a lighter punishment would be imposed on Wang Xinming, that is, he was sentenced to a fixed-term imprisonment of six years and a fine amounting to CNY60,000.

(Resources from 2016 LexisNexis)