After hearing this, Meng Guangda frowned, habitually raised his hand to brush his hair, cleared his throat and said: "I remember that Amendment (8) to the Criminal Law has amended the conditions for the application of probation, refining the original substantive elements of 'according to the circumstances of the crime and the expression of remorse' to 'the circumstances of the crime and the expression of remorse' to 'the circumstances of the crime are relatively minor', 'there is a sign of remorse', 'there is no danger of recidivism', and 'it will not have a major adverse impact on the community where you live'.

It can be seen from this that it is feasible for Lawyer Ji to judge whether to apply a suspended sentence based on the criterion of 'the circumstances of the crime are relatively minor'......"

When Yun Qiao saw Da Ge open his mouth, he knew that he was about to make a speech in an academic direction again, and waited quietly for his next words, knowing that he would not end his speech by agreeing with Lawyer Ji's opinion.

"But ......," Meng continued.

Yun Qiao smiled when he heard this, and then glanced at Zhou Ying and Yu Wendong, the two of them smiled, obviously they also knew Da Ge's habits.

"However, how to define the 'criminal circumstances' in 'relatively minor criminal circumstances' is a problem, and I think that 'criminal circumstances' focuses on reflecting the overall social harmfulness of the crime, and is a comprehensive investigation and comprehensive evaluation of the subject of the crime, the subjective aspects of the crime, the object and object of the crime, and the objective aspects of the crime.

The circumstances of the crime in the specific crimes in the sub-provisions of the Criminal Law are generally expressed as three levels: ordinary circumstances, serious circumstances, and especially serious circumstances. They are the criminal factors that determine the level of punishment, and in criminal law theory, they are also called basic and aggravated components.

Judging from the text of the Criminal Law and the provisions of judicial interpretations, the various circumstances in the specific crimes of the Criminal Law are mainly reflected in the evaluation of the objective aspects of the crime, and generally do not involve other elements of the crime such as the subject and object of the crime, especially in the case of the amount of crime.

It can be seen from this that the 'criminal circumstances' in the applicable elements of probation and the 'criminal circumstances' in the specific crimes are not the same thing, the meanings are different, and there is no logical identity and natural correspondence.

So, I don't think the two should be confused.

In other words, it cannot be considered that any circumstance with 'serious circumstances' as provided for in the sub-provisions of the Criminal Law does not fall under the 'relatively minor circumstances of the crime' under Article 72 of the Criminal Law.

Otherwise, it is easy to conclude that all defendants who have serious circumstances and should be sentenced to three years imprisonment in accordance with the law cannot be given a suspended sentence. Meng Guangda explained.

Ji Hongying is also a senior lawyer, so she can naturally understand Meng Guangda's explanation, she didn't speak, she was reminiscing about Da Ge's explanation.

"I remember that Article 176 of the Criminal Law stipulates that anyone who illegally absorbs deposits from the public or indirectly absorbs deposits from the public, thereby disrupting the financial order, shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention 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 and a concurrent fine is to be given.

This case involves more than 200 million yuan, which should be a particularly huge amount, so I think the defendant may be sentenced to more than 10 years in prison, if so, how to apply the suspended sentence? After Cao Yongzheng finished speaking, he looked at Du Yong and Song Hui.

"This is how I understand it, Article 176 of the Criminal Law on the crime of illegally absorbing deposits from the public only mentions that if the amount is huge or there are other serious circumstances, the sentence shall be fixed-term imprisonment of not less than three years but not more than ten years; where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment is to be given. However, at present, there is no clear provision in the judicial interpretation that the amount is particularly huge.

The so-called 'huge amount or other serious circumstances', in accordance with the provisions of Article 3, Paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fundraising, refers to the illegal absorption or covert absorption of public deposits in any of the following circumstances: (1) the amount of the individual crime is more than 1 million yuan (5 million yuan for the unit); (2) More than 100 individuals (more than 500 people); (3) The amount of direct economic losses caused by individuals to depositors is more than 500,000 yuan (2.5 million yuan per unit); (4) Causing particularly bad social impact or other particularly serious consequences.

Judging from the above provisions, the first three situations correspond to 'huge amounts', and the determination focuses on the amount of the crime and the number of targets, while the fourth situation corresponds to 'other serious circumstances', focusing on the harmful consequences of the crime.

From the perspective of judicial practice, the so-called 'particularly bad social impact' or 'other particularly serious consequences' mainly refers to situations where the crime causes the victim to commit suicide, causing mass SF, seriously affecting social stability, and the public is extremely angry, and there is a strong demand for strict punishment.

As far as this case is concerned, although the amount involved is more than 200 million yuan, there are no other particularly serious circumstances in this case. Judging from the amount, this case is a huge amount.

Therefore, I believe that the sentencing range in this case should be between three and ten years in prison.

According to the typical cases released by the Supreme People's Court, for those who are punished purely because of 'huge amounts', in judicial practice, economic means such as returning stolen goods can be used to restore the harm of the crime to a considerable extent, and a suspended sentence can be applied.

For those with "other serious circumstances", for the sake of social effects such as the social acceptability of judicial rulings, even if the starting sentence of three years imprisonment is sentent, a suspended sentence will generally not be applied. Song Hui explained.

"In this case, the defendant illegally absorbed more than 200 million yuan, and although the crime of illegally absorbing public deposits does not provide for the circumstance of 'a particularly huge amount', the amount of the crime in this case should be regarded as a 'particularly huge amount' compared to ordinary cases. If we recommend that the court sentence the defendant to three years imprisonment with a suspended sentence, does it violate the principle of proportionality of crime and punishment? Sui Xia asked suddenly.

"Well, the question you mentioned may become the key point of sentencing in this case, but I think the crime of illegally absorbing public deposits has its own particularity.

As far as ordinary offenders are concerned, the amount of the crime itself is the main factor in determining the severity of the crime, and when the total amount of the crime is far greater than the statutory starting sentence and there are no statutory mitigating circumstances, it is indeed contrary to the principle of proportionality of crime and punishment to still be sentenced at the starting point.

However, with regard to the crime of illegally absorbing deposits from the public, paragraph 4 of Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fundraising clearly stipulates that illegally absorbing or covertly absorbing deposits from the public is mainly used for production and business activities, and the absorbed funds can be promptly returned, and criminal punishment may be exempted; Where the circumstances are obviously minor, it is not to be handled as a crime.

This is also a clear difference between the crime of illegally absorbing deposits from the public and the crime of ordinary crimes. You can't just look at the amount of the crime. Du Yong replied.

(End of chapter)