Case concerning Wang Xinming's Contract Fraud
(Issued on June 30, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court)
Guiding Case No. 62
????Keywords 
criminal; contract fraud; amount-related crime; accomplished offense; attempted offense
Key Points of Judgment
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.
Relevant Legal Provisions
Article 23 of the Criminal Law of the People's Republic of China
Basic Facts
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.
Judgment
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.
Judgment's Reasoning
In the effective judgment, the court held that: For the purpose of illegal possession, Wang Xinming concluded a contract by falsely using other's name and his acts constituted a crime of contract fraud. The judgment of first instance was clear in fact-finding, accurate and sufficient in evidence, accurate in nature-determination, and legitimate in trial procedures; however, it did not evaluate the criminal fact of the amount of 700,000 yuan involved in attempted offense, which was inappropriate and should be corrected. In the contract fraud committed by Wang Xinming, the amount involved in accomplished offense was 300,000 yuan and that involved in attempted offense was 700,000 yuan, but he may be given a mitigated punishment for attempted offense. Wang Xinming truthfully confessed to his crime, refunded all illicit money, and was forgiven by the victim. By considering the aforesaid factors, in accordance with the relevant provisions of the Criminal Law and the judicial interpretation thereof, the sentencing in the original judgment was within the statutory sentencing range and the appealing organ raised no objection to such sentencing. Therefore, the original judgment should be affirmed. Both the appeal opinions of the People's Procuratorate of Shijingshan District, Beijing Municipality and the opinions of the No. 1 Branch of the People's Procuratorate of Beijing Municipality on supporting such appeal opinions may be admitted depending on the actual circumstances. Considering that during the second instance review, Wang Xinming filed an application for withdrawing the appeal and such application complied with the legal provisions, the court of second instance approved the withdrawal of the appeal and affirmed the original judgment according to the law.
The issue of this case was how to sentence Wang Xinming in the co-existence of accomplished offense and attempted offense in an amount-related crime. 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 Law in the Trial of Criminal Cases on Frauds provides that “If there are an accomplished offense and an attempted offense in a crime of fraud and both offenses fall within different sentencing ranges, the provisions on giving a heavier punishment shall apply; and if they fall within the same sentencing range, the criminal offender shall be punished for the crime of accomplished fraud.” Therefore, under circumstances where an accomplished offense and an attempted offense co-existed in an amount-related crime and both the accomplished offense and the attempted offense constituted crimes, the court first determined the statutory sentencing range of the attempted offense, then compared such statutory sentencing range with that of the accomplished offense, and finally determined the statutory sentencing range applicable for the whole case. If the statutory sentencing range of the accomplished offense was heavier than or the same as that of the attempted offense, the statutory sentencing range applicable for the whole case should be determined based on the statutory sentencing range of the accomplished offense, other circumstances including attempted offense should be served as the starting points for sentencing, and the benchmark sentencing should be determined based thereon. If the statutory sentencing range of the attempted offense was heavier than that of the accomplished offense, the statutory sentencing range applicable for the whole case should be determined based on the statutory sentencing range of the attempted offense, other circumstances including the accomplished offense jointly with circumstances of the attempted offense should serve as the starting points for sentencing, and the benchmark sentencing should be determined based thereon.
In this case, in Wang Xinming's criminal act of contract fraud, the amount involved in the accomplished offense was 300,000 yuan, the statutory sentencing range of which was a fixed-term imprisonment of not less than three years but not more than ten years in accordance with the judicial interpretation of the Criminal Law and the specific enforcement standards of Beijing Municipality; the amount involved in the attempted offense was 700,000 yuan, the statutory sentencing range of which should, in light of the actual circumstances of this case, be decreased by one grade to a fixed-term imprisonment of not less than three years but not more than ten years, the same as that of the amount of 300,000 yuan involved in the accomplished offense. Therefore, on the basis of the basic criminal facts of the accomplished offense with the amount of 300,000 yuan in the contract fraud, the statutory sentencing range applicable for Wang Xinming's crime was a fixed-term imprisonment of not less than three years but not more than ten years, and the criminal facts of the attempted offense with the amount of 700,000 yuan jointly with the truthful confession of criminal facts, refunding of all illicit money, and being forgiven by the victim served as circumstances for sentencing. Therefore, Wang Xinming was given a lighter punishment, sentenced to a fixed-term imprisonment of six years, and imposed a fine of 60,000 yuan.
(Judges of the effective judgment: Gao Song, Lv Jing, and Wang Yan)