With regard to the sentencing for the crime of false issuance of special bills, some views hold that "the amount of false tax should be used as the sentencing standard, and the loss of tax should be an aggravating circumstance", and some views hold that the amount of false tax and the amount of tax loss are both sentencing circumstances, and the author agrees with the second view.
Article 205 of the Criminal Law stipulates that there are three sentencing levels for the crime of false issuance of special tickets, the first is the standard for the criminalization of false tax issuance of 50,000 yuan, the second level is the false tax amount of 50-2.5 million yuan or other serious circumstances (causing tax losses of 30-1.5 million yuan and cannot be recovered before the first-instance judgment), and the third level is the tax amount of more than 2.5 million yuan and the loss of more than 1.5 million yuan.
From the perspective of the text, the second tranche is a large amount of false opening or a tax loss of 300,000 yuan, and as long as one of the two is satisfied, it constitutes the second tranche. The relationship between the two is juxtaposed, rather than the relationship between the aggravating plot after satisfying the basic plot.
Therefore, the two criteria of inflated tax amount and loss of state tax revenue should be sentencing standards, rather than one being a sentencing standard and the other being an aggravating circumstance. The distinction between a sentencing rule and an aggravating circumstance should be analysed on the basis of basic principles.
The common superordinate concepts of the sentencing rules and the constituent elements of aggravation are:Statutory conditions for sentence upgrades, i.e., circumstances that can lead to an aggravation of the statutory penalty [1].
According to the doctrine of the type of illegality, only the violation of the law is indicatedType featuresis a constituent element. WhileThe circumstances are serious and the amount is huge, the ringleader, multiple times (or against multiple people), the number (amount) of the breeding of criminal acts is hugeThe amount of illegal gains is huge, and although it is an element indicating the aggravation of the illegality, it does not indicate the characteristics of the type of illegal act.
Accordingly,The provisions of the Criminal Law are based solely on the seriousness of the circumstances (specially), the heinous circumstances (specially) and the amount or quantity (specially) huge, ringleaders, multiple times, the amount of illegal gains is huge, and the number of things that are bred by criminal acts is hugeWhen it is used as a condition for the upgrading of a statutory sentence, it can only be regarded as a sentencing rule.
Conversely, when the provisions of the specific provisions of the Criminal Law change the type of conduct due to the particularity of the constituent elements such as conduct and object, which leads to an increase in illegality and increases the statutory punishment, it is an aggravated constitutive element.
Accordingly, the provisions of the sub-provisions of the Criminal Law relate:Statutory conditions for sentence upgradescan be divided into the following three categories:
1) The conditions for the promotion of statutory sentences as provided for in some sub-provisionsIt is only a sentencing rule
For example, Article 264 of the Criminal Law: Article 264 [Theft] Whoever steals public or private property, and the amount is relatively large, or who commits multiple thefts, burglaries, thefts with a murder weapon, or pickpocketing, shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and/or a fine; The amount is huge or there are other serious circumstances, a sentence of between three and ten years imprisonment and a concurrent fine; The amount is especially huge or there are other especially serious circumstancesand a sentence of 10 or more years imprisonment or life imprisonment and a concurrent fine or confiscation of property.
2) The conditions for the upgrading of statutory sentences as provided for in some sub-provisionsIt is a constituent element of aggravation.
For example, Article 121 of the Criminal Law: Article 121 [Crime of Hijacking Aircraft] Whoever hijacks an aircraft by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment; Causing serious injury, death, or serious damage to the aircraftshall be sentenced to death.
3) The conditions for upgrading a statutory sentence as provided for in some sub-provisions include both aggravating elements and sentencing rules.
For example, Article 263 of the Criminal Law: Article 263 [Robbery] Whoever robs public or private property by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; In any of the following circumstances, a sentence of 10 or more years imprisonment, life imprisonment or death is to be given, and a concurrent fine or confiscation of property is to be given: (1) Burglary; (2) Robbery on public transportation; (3) Robbery of banks or other financial institutions; (4) Multiple robberies or robberies where the amount of money involved is huge; (5) Robbery causing serious injury or death; (6) Pretending to be military or police personnel to rob; (7) Robbery with a gun; (8) Looting military supplies or emergency rescue, disaster relief, or relief materials.
According to the above classification and interpretation, the amount of false tax and other serious circumstances (resulting in the amount of state taxes) in the crime of false issuance of special bills as provided for in Article 205 of the Criminal Law should be sentencing rules, not aggravating constitutive elements.
Accordingly, in a false opening case, if the defendant pays back the tax before the first-instance judgment, so that the "amount of the loss of state tax that cannot be recovered before the first-instance judgment" is small, it is possible to apply the sentencing standard of "causing the loss of state tax", thereby reducing the base sentence to less than three years.
Notes:[1] Capital Public Security Legal System. Sentencing rules and the constitutive elements of aggravation. [2021-11-18]