How should the crime of fraudulently obtaining the subsistence allowance be convicted, and whether t

Fraudulently obtaining subsistence allowances or helping others to fraudulently obtain subsistence allowances with a relatively large amount constitutes a crime.

However, the legal punitive measures are seriously lacking, and there are legislative flaws in China's law to crack down on "similar fraudulent subsistence allowance behavior".

Due to the fact that the various "quasi-subsistence allowance systems" implemented in China have not been for a long time, most of the research on these systems by scholars and practitioners is limited to how to plug the loopholes of fraudulent claims, that is, to improve the operational level of the system itself, and rarely conduct research and punishment from the perspective of strengthening legislative crackdown and using criminal measures to govern it, resulting in no complete and effective legal system to curb and punish all kinds of fraudulent claims.

Taking the fraudulent receipt of the subsistence allowance as an example, looking through the punishment provisions for "fraudulent and fraudulent claiming" in China's relevant subsistence allowance system, the most severe is the "Regulations on the Minimum Living Security for Urban Residents" issued in 1999, "the county-level people's ** civil affairs department shall give criticism, education or warning, and recover the funds and materials for the minimum living security for urban residents who have fraudulently claimed; if the circumstances are heinous, a fine of not less than 1 time but not more than 3 times the amount of the fraudulent claim shall be imposed." Specific to the final results reflected in the above-mentioned reports, one is that the vast majority of the subsistence allowance qualifications are cancelled, and the other defrauded nearly 40,000 yuan of subsistence allowance funds and materials is only "the return of more than 30,000 yuan of subsistence allowance and more than 5,000 yuan of grain and oil assistance funds", and Shenzhen's fraudulent acquisition of affordable housing qualifications because it was discovered earlier, or even just voluntarily withdrew or cancelled the application qualifications, it seems that there is no punishment for any punitive measures.

A comprehensive analysis of the punitive measures and provisions of China's laws on "quasi-fraudulent subsistence allowance behavior" shows that its legislative shortcomings are obvious.

First of all, the most fundamental reason is that the punishment is too light, the punishment measures and means are single, and the serious fraudulent and fraudulent acts are not included in the scope of the criminal law, and it is impossible to pursue criminal responsibility for all kinds of "similar acts of fraudulent receipt of subsistence allowances" in accordance with the provisions of the criminal law, and the so-called pursuit of responsibility cannot have the desired deterrent and crackdown effect.

Second, the mechanism responsible for dealing with the crackdown is seriously unreasonable. For example, the civil affairs department is responsible for cracking down on and punishing the fraudulent receipt of subsistence allowances, apparently because the simplistic belief that the civil affairs department is the department in charge of issuance, and it is natural that it should also supervise and enforce the law. However, this obviously ignores the cause of the rampant phenomenon of fraudulent receipt of subsistence allowances, for the simple reason that the vast majority of "fraudulent claimers" are able to succeed easily, to a large extent, because civil affairs personnel are derelict in their duties and irresponsible in examining their qualifications for subsistence allowances, or that the personnel in charge of applying for subsistence allowances in civil affairs departments, or even some leaders, work together with the fraudsters.

Therefore, the civil affairs department itself should often be the bearer of responsibility, even if the civil affairs personnel do not act intentionally, but the "dereliction of duty" that caused the deception of the subsistence allowance money and goods will inevitably lead to the performance of the leaders of the "civil affairs bureau" will be affected, how can they be expected to achieve the goal of punishing the "fraudulent and fraudulent claimants" as the accountability pursuers?

According to Article 17 of the "Identity Card Law", anyone who commits any of the following acts shall be fined between 200 and 1,000 RMB, or detained for up to 10 days, and where there are unlawful gains, the unlawful gains shall be confiscated: (1) Fraudulently using another person's resident identity card or using a fraudulently obtained resident identity card; You can report the case to the police and ask for sanctions. The request for revocation of the relevant administrative act can only be resolved by filing an administrative reconsideration and administrative lawsuit.

where the circumstances of defrauding the subsistence allowance are serious, the crime of fraud is suspected, and a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property.

Legal basis. Article 266 of the Criminal Law.

where public or private property is defrauded, and the amount is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

It is a crime to defraud the subsistence allowance. Depends on the countryLaws and RegulationsIt can be seen from the content of the provisions that the perpetrator's act of defrauding the subsistence allowance is actually a fraud. Fraud itself refers to an act of defrauding a relatively large amount of public or private property by using fictitious facts or concealing the proper truth as a method for the purpose of illegal possession.

Legal analysisThe act of a party fraudulently obtaining the subsistence allowance is a process of using various deceptive means to obtain qualifications, and it is a direct intentional act of the party with the purpose of illegally occupying public property in a subjective aspect, and its behavior is fully compliantLaws and RegulationsThe crime of fraud provided for is a constitutive element of a subjective crime. If the person concerned wants to apply for the rural subsistence allowance, he or she should meet the following conditions at the same time: 1. He or she needs to hold an agricultural resident household registration in the county.

2. Rural residents who need to live in rural villages and have family contracted land. 3. The per capita annual net income and actual living standard of the family members living together are lower than the local rural subsistence allowance standard. The materials required to apply for the rural subsistence allowance are as follows:

1. A written application is required. 2. You need to have the household registration book of your family members. 3. A group photo of family members who need to live together.

4. It is necessary to have a contract or certificate for land, mountains, forests, water surface, etc. 5. Present the income certificate of the migrant worker. 6. If it is a family of non-agricultural households, the relevant income certificates of non-agricultural household registration personnel shall be provided.

7. Other relevant materials required by the approval management authority.

Legal basis. Article 266 of the Criminal Law of the People's Republic of China: Where public or private property is defrauded, and the amount is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

The Standing Committee of the National People's Congress on.

Interpretation of Article 266 of the Criminal Law of the People's Republic of China.

The 12th National People's Congress on April 24, 2014.

Adopted at the eighth meeting of the Standing Committee).

The Standing Committee of the National People's Congress discussed the meaning of Article 266 of the Criminal Law and the issue of how to apply the relevant provisions of the Criminal Law to acts of fraudulently obtaining social insurance benefits such as pension, medical care, work-related injury, unemployment, and maternity, or other social security benefits, and explained as follows:

Fraud, falsification of supporting materials, or other means to fraudulently obtain social insurance benefits or other social security benefits such as for pensions, medical care, work-related injuries, unemployment, or maternity, is an act of defrauding public or private property as provided for in article 266 of the Criminal Law.

It is hereby announced. Attached: Article 266 of the Criminal Law.

Article 266:Where public or private property is defrauded and the amount is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

Authoritative interpretation: Fraudulent acquisition of social insurance funds or other social security benefits shall be investigated for criminal responsibility in accordance with the law for the crime of fraud.

In order to ensure the safety of social security funds and the well-being of society, the Standing Committee has made a legal interpretation, that is, it is clear that fraudulently obtaining social insurance funds and other social security benefits such as pension, medical care, work-related injury, unemployment, and maternity is an act of defrauding public and private property as stipulated in the Criminal Law. According to article 266 of the Criminal Law, if the amount of public or private property defrauded is relatively large, the crime of fraud constitutes the crime of fraud. This involves the relationship between legislative interpretations, laws and relevant judicial interpretations.

According to the provisions of the Legislation Law, the task of legislative interpretation is to further clarify the meaning of the provisions of the law, or to clarify the basis for the application of the law after the circumstances change. In a sense, legal interpretation addresses qualitative issues. The characterization is that the deception of social security is an act of defrauding public or private property, and the specific way to pursue criminal responsibility in accordance with the law should be applied in accordance with the specific standards of the Criminal Law and judicial interpretations for conviction and sentencing.

In practice, due to the complexity of the situation of fraudulent social insurance, as for how to apply the law in various situations, this is still a specific application issue, and if necessary, the specific issue will be resolved through judicial interpretation and case guidance.

Legal analysis: Malicious fraud to obtain subsistence allowance will not go to jail, but it will require a fine of between 1 and 3 times. In the process of obtaining qualifications by various deceptive means, the perpetrator of the subsistence allowance directly reflects his direct intention to illegally occupy public property in the subjective aspect, which fully meets the subjective elements of the crime of fraud.

Legal basis: "Regulations on the Minimum Livelihood Security for Urban Residents" Article 14: Where urban residents enjoying the minimum livelihood security benefits for urban residents commit any of the following acts, the county-level people's ** civil affairs department shall give criticism, education or warning, and recover the funds and materials for the minimum livelihood security for urban residents that they have fraudulently received; if the circumstances are heinous, a fine of not less than 1 time but not more than 3 times the amount of the fraudulent claim shall be imposed."

1) Employing methods such as false reporting, concealment, or forgery to fraudulently obtain the benefits of minimum subsistence guarantees for urban residents.

2) During the period of enjoying the minimum subsistence security benefits for urban residents, the family income situation has improved, and the management and approval organs are not notified in accordance with regulations, and continue to enjoy the minimum subsistence security benefits for urban residents. Empty spine.

Legal analysis: There is no law that clearly defines how to punish those who cheat on the subsistence allowance, and although the subsistence allowance measures issued in some places say that they will be fined, it is very difficult to enforce them. This is because the subsistence allowance measures were issued by the civil affairs department, but the civil affairs department does not have the power to impose fines.

But the staff who helped him cheat the insurance will be held accountable.

Legal basis: Article 266 of the Criminal Law of the People's Republic of China: Where public or private property is defrauded, and the amount is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

Legal Analysis: Fraud is serious and is a fraud and is punished as a crime of fraud.

Legal basis: Article 266 of the Criminal Law of the People's Republic of China: Where public or private property is defrauded, and the amount is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; Where the amount is huge or there are other especially serious circumstances, the sentence is to be 10 or more years imprisonment or indefinite imprisonment and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

In the process of obtaining qualifications by various deceptive means, the perpetrator of the subsistence allowance directly reflects his direct intent to illegally occupy public property in the subjective aspect, which fully meets the subjective elements of the crime of fraud. On the basis of article 266 of the Criminal Law, where public or private property is defrauded, and the amount is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

Legal basis: Article 266 of the Criminal Law of the People's Republic of China [Crime of Fraud] Where the amount of fraud against public or private property is relatively large, a sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine; where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment or indefinite imprisonment is to be given, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

1. What is the situation of defrauding the subsistence allowance?

Subsistence allowance households refer to households that have lost their labor force due to severe disability or illness, and whose housing or income is lower than the municipal subsistence allowance standard, and who are entitled to the national minimum subsistence security subsidy. Families enjoying the subsistence allowance are mainly in the following four categories, and if they do not belong to the following circumstances, they can be regarded as deception of the subsistence allowance:

1. Residents (villages) who have no economic income, no ability to work, and cannot clear the verification of supporters or dependents.

2. Residents (villages) who have not been re-employed during the period of receiving unemployment benefits or after the expiration of unemployment benefits, and whose per capita monthly household income is lower than the municipal subsistence allowance standard.

3. After the incumbents receive wages or minimum wages and retirees receive pensions, the per capita monthly income of their families is still lower than the municipal subsistence allowance standard.

4. Other households whose per capita monthly income is lower than the municipal subsistence allowance standard (excluding those subject to the five guarantees).

II. Criteria for filing a case for fraudulently obtaining subsistence allowances.

Criteria for filing a case of fraudulent subsistence allowance: Where the perpetrator defrauds the subsistence allowance of more than 3,000 yuan, a case may be filed and punished for the crime of fraud. Where the value of defrauding public or private property is between 3,000 and 10,000 RMB, it may be found that the amount in the crime of fraud is relatively large, and the perpetrator may be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine.

According to article 1 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud", where the value of defrauded public or private property is between 3,000 and 10,000 RMB, 30,000 to 100,000 RMB, or 500,000 RMB, it shall be respectively found to be a relatively large amount, a huge amount of money, or a particularly huge amount as provided for in article 266 of the Criminal Law.