In June 2007, defendants Lin Huaren, Han Yang and co-defendant Yang Ou tricked Hou Gang of Henan Luohe Yinfeng Paper Co., Ltd. into going to Haikou City, Hainan Province to discuss the purchase and sale of waste paper in the name of Hainan Hongfa Trading Co., Ltd. During the negotiation, Lin Huaren, Han Yang and Yang Ou asked Hou Gang to provide a bank card with RMB 620,000 to prove the strength of the other company.
On June 1 1 of the same year, Hou Gang applied for a savings card of China Industrial and Commercial Bank as required, and informed his company to remit money. RMB 620,000 was remitted to the account on that day, and the balance of the account was RMB 620,065,438+00. Subsequently, in the name of checking the authenticity of bank cards, Lin Huaren, Yang Ou used card reading equipment to steal relevant information of bank cards and copied and forged three fake bank cards with the same information as bank cards.
On June 13 of the same year, Lin Huaren and Han Yang returned to their hometown of Dianbai County, Guangdong Province, and together with the defendant Cai Shuiqian, who was temporarily executed outside prison, they took the above three fake bank cards and the stolen bank card passwords to Guangzhou for spending. After arriving in Guangzhou, the above three people illegally took RMB 6 14436+0 yuan from the bank card provided by Hou Gang in a gold shop on Beijing Road, Xindaxin Shopping Mall, Tianhe Department Store and Baiguang Zhong Yi Store. On the same day, the defendants Lin Huaren, Han Yang and Cai Shuiqian were arrested by security guards when they absconded with stolen goods in Guangzhou Tianhe City. After the incident, the public security organs seized the above-mentioned 3 forged credit cards, 36 stolen gold products (deputy), seized 20,000 yuan of illicit money, seized the defendant Lin Huaren's bank card 16, and seized 25 Cai Shuiqian's bank cards.
The court held that the actions of the defendants Lin Huaren, Han Yang and Cai Shuishallow all constituted the crime of credit card fraud, and the amount of fraud was particularly huge. The actions of the defendants Lin Huaren and Cai Shuiqian constitute the crime of obstructing credit card management. The defendants Lin Huaren and Cai Shuiqian committed several crimes and should be punished for several crimes according to law. Defendants Lin Huaren and Han Yang played a major role in the joint crime of credit card fraud. As the principal offenders, they should be punished according to all the crimes they participated in. Defendant Cai Shuiqian played a secondary and auxiliary role in the joint crime of credit card fraud, and was an accessory, so the punishment should be mitigated. According to the provisions of article 196, paragraph 1 (1), article 177-1, paragraph 1 (2), article 64, article 52, article 53, article 69, article 25, paragraph 1, article 26, paragraph 4 and article 27 of the Criminal Law of People's Republic of China (PRC), the verdict is as follows: 1. Defendant Lin Huaren committed the crime of credit card fraud. He was convicted of obstructing credit card management, sentenced to one year in prison and fined RMB 6,543,800+0,000. Combined punishment for several crimes, he decided to execute fixed-term imprisonment of eleven years and six months and fined RMB 1 10000 yuan. 2. Defendant Han Yang was convicted of credit card fraud, sentenced to 11 years' imprisonment and fined RMB 654.38 million. 3. Defendant Cai Shui was convicted of credit card fraud, sentenced to six years' imprisonment and fined RMB 20,000; He was convicted of obstructing credit card management, sentenced to one year in prison and fined RMB 6,543,800+0,000. Combined punishment for several crimes, he decided to execute a fixed-term imprisonment of six years and six months and fined RMB 30,000. 4. Seize 36 pieces of the defendant's gold products and 20,000 yuan of stolen money, and return them to the injured unit Luohe Yinfeng Paper Co., Ltd. 5. Seize and confiscate 43 defendant's bank cards.
Lin Huaren and his defenders believe that Lin Huaren's only two behaviors, copying credit cards and spending by swiping them, are secondary to others and should be accomplices. Defendant Lin Huaren does not constitute the crime of obstructing credit card management. The sentence in the original trial was too heavy, so we request a lighter sentence.
Han Yang appealed that he was an accessory to the crime because of Lin Huaren's inducement, and requested a lighter sentence.
Cai Shuishallow appealed that he did not participate in the forgery of credit cards, but was temporarily pulled by the co-defendant to help keep things. The original sentence was too heavy, so he asked for a revision.
The facts and evidence ascertained in the trial of second instance are basically the same as those ascertained in the trial of first instance. The court of second instance held that the facts ascertained in the original judgment were clear and the evidence was indeed sufficient, which confirmed each other and confirmed them.
We comprehensively evaluate the reasons for appeal and defense opinions put forward by the three appellants and defenders as follows:
1. The appellant's role and position in the crime of credit card fraud. Lin Huaren, the appellant, put forward the criminal fact of using a card reader to read credit card information, defrauding the credit card password, and then copying the credit card and spending with the copied credit card. In the process of committing a crime, Lin Huaren was responsible for buying a credit card reader, went to Haikou with Han Yang and Yang Ou to defraud the victim, mastered the use of the credit card reader, copied the victim's credit card information, forged the credit card, and spent money with the copied credit card, which played an active role and was the principal offender. At the suggestion of Lin Huaren, the appellant Han Yang participated in the business talks between Lin Huaren and Yang Ou and the victims in Haikou, defrauding the victim's bank card information and bank card password, and participated in the consumption of copied credit cards, which played a positive role and was also the principal offender, but the role was slightly less than that of Lin Huaren. Cai Shuiqian, the appellant, did not participate in conspiracy, in defrauding the victim's credit card information and password in Haikou, or in copying the credit card. Under the correction of Lin Huaren and Han Yang, he only helped to keep the purchased gold ornaments when swiping cards in Guangzhou, and did not share the stolen money, playing an auxiliary and secondary role. He is an accomplice. In view of the fact that all the stolen money and goods in this case have been returned and no losses have been caused to the victims, the role of appellant Cai Shuiqian is far less than that of other co-defendants. Han Yang and Cai Shuiqian were severely sentenced in the original judgment, and our court corrected them according to law.
2. When the appellant was arrested, dozens of other people's credit cards were found on the spot from the appellants Lin Huaren and Cai Shuiqian. According to the provisions of the first paragraph of Article 177-1 of the Criminal Law of People's Republic of China (PRC), illegally holding other people's credit cards was large, which constituted a crime of obstructing credit card management. Second, the appellant's behavior conforms to the crime constitution of the crime, and it is not improper for the original judgment to find that the appellant constitutes the crime of obstructing credit card management.
The court of second instance held that the appellants Lin Huaren, Han Yang and Cai Shuiqian used forged credit cards for the purpose of illegal possession, and the amount was extremely huge, which constituted the crime of credit card fraud. Appellants Lin Huaren and Cai Shuiqian illegally held a large number of other people's credit cards, and their actions have constituted the crime of obstructing credit card management. Appellants Lin Huaren and Cai Shuiqian committed several crimes and should be punished for several crimes according to law. Appellants Lin Huaren and Han Yang played a major role in the crime of credit card fraud and were the principal offenders. According to the law, they should be punished according to all the crimes they participated in, but the role of appellant Han Yang is not as important as that of Lin Huaren. Cai Shuiqian, the appellant, played a secondary and auxiliary role in the joint crime of credit card fraud. He is an accessory and should be given a mitigated punishment according to law. In view of the fact that Appellants Lin Huaren, Han Yang and Cai Shuiqian can truthfully confess the basic criminal facts, and the stolen money and goods purchased with the stolen money in this case have been seized, which has saved the losses of the injured unit, they can be given a lighter punishment as appropriate. The criminal facts identified in the original judgment were clear, the evidence was sufficient, the conviction was accurate, and the trial procedure was legal. However, the sentencing of Appellants Han Yang and Cai Shuiqian was biased, and our court corrected it.
According to the provisions of Article 189 (2) of the Criminal Procedure Law of People's Republic of China (PRC), Article 196 (1), Article 177-1 (2), Article 64, Article 52, Article 53, Article 69, Article 25 (1), Article 26 (4) and Article 27 of the Criminal Law of People's Republic of China (PRC),
1. Defend the conviction of Appellant Han Yang in Items 1, 4 and 5 of Tianhe District People's Court (2008) No.542, and the conviction and sentencing of Appellant Cai Shui for credit card fraud and obstruction of credit card management in Item 3.
2. The second and third items of criminal judgment, Tianhe Law No.542 (2008) of Tianhe District People's Court, were revoked, and the appellant Han Yang and Cai Shui were sentenced for committing the crime of credit card fraud.
3. Appellant Han Yang was convicted of credit card fraud, sentenced to 10 years' imprisonment and fined 80,000 yuan.
(The term of imprisonment shall be counted from the execution date of the judgment. If the person is taken into custody before the execution of the judgment, one day of detention shall be reduced to one day of fixed-term imprisonment, that is, from June 3, 2007 to June 2, 2007. The fine shall be paid to the Tianhe District People's Court of Guangzhou in one lump sum within one month from the effective date of this judgment. )
4. Appellant Cai Shui was convicted of credit card fraud, sentenced to four years' imprisonment and fined RMB 20,000; He was convicted of obstructing credit card management, sentenced to one year in prison and fined RMB 6,543,800+0,000. Decided to execute fixed-term imprisonment of four years and six months, and fined RMB 30,000.
(The term of imprisonment shall be counted from the execution date of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment, that is, from June 2007 13 to June 20654381February 12, and the fine shall be paid to Guangzhou in one lump sum within one month from the second day when the judgment takes effect. )