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Jing An People's Procuratorate of Shanghai Municipality v. Zhu Jianyong (Case concerning the Crime of Intentional Destruction of Property)
上海市静安区人民检察院诉朱建勇故意毁坏财物案
【法宝引证码】
  • Type of Dispute: Criminal-->Property Infringement
  • Legal document: Judgment
  • Judgment date: 10-24-2002
  • Procedural status: Trial at First Instance
  • Source: SPC Gazette,Issue 4,2004

Jing An People’s Procuratorate of Shanghai Municipality v. Zhu Jianyong (Case concerning the Crime of Intentional Destruction of Property)
(Case concerning the Crime of Intentional Destruction of Property)
上海市静安区人民检察院诉朱建勇故意毁坏财物案

Jing An People's Procuratorate of Shanghai Municipality v. Zhu Jianyong
(Case concerning the Crime of Intentional Destruction of Property)

 

上海市静安区人民检察院诉朱建勇故意毁坏财物案

 【裁判摘要】
 被告人为泄私愤,侵入他人股票交易账户并修改密码,在他人股票交易账户内,采用高进低出股票的手段,造成他人资金损失数额巨大的行为,构成刑法二百七十五条规定的故意毁坏财物罪。
BASIC FACTS 
Public Prosecution Organ: Jing An People's Procuratorate of Shanghai Municipality. 公诉机关:上海市静安区人民检察院。
Defendant: Zhu Jianyong, male, 44 years old, resident of Shanghai Municipality, and arrested on July 24, 2002. 被告人:朱建勇,男,44岁,上海市人,2002年7月24日被逮捕。
Jing An People's Procuratorate of Shanghai Municipality filed a public prosecution to Jing An People's Court of Shanghai Municipality against Zhu Jianyong (hereinafter referred to as Zhu) for the crime of intentional destruction of property. 上海市静安区人民检察院以被告人朱建勇犯故意毁坏财物罪,向上海市静安区人民法院提起公诉。
The bill of indictment said that: In order to give vent to his personal spite, Zhu logged on the stock commissioned trading account of someone else and altered its passwords, and bought stocks at a high price and then sold them at a low price on the said account, and thus caused more than 190,000 yuan of losses to the said someone else. After the case occurred, Zhu compensated for all the losses. Zhu's acts violate Article 275 of the Criminal Law of the People's Republic of China and constituted the crime of intentional destruction of property. After committing the crime, Zhu voluntarily surrendered himself to justice, and should be given a minor penalty. The prosecutor pleaded with the court to investigate for Zhu's criminal liabilities. 起诉书指控:被告人朱建勇为泄私愤,侵入他人的股票委托交易账户并篡改密码,在他人账户内高价买进股票然后低价卖出,造成他人账户内的资金损失19万余元。案发后,朱建勇赔偿了给他人造成的全部损失。朱建勇的行为触犯了《中华人民共和国刑法》第二百七十五条的规定,构成故意毁坏财物罪。朱建勇犯罪后有自首情节,依照刑法六十七条的规定,应从轻处罚。请依法追究朱建勇的刑事责任。
In order to prove the facts for the said accusation, the prosecutor submitted to the court the statements of the victim, the testimonies, the crime site map, the securities client information, the securities transaction report, and the summary report on losses, etc. 为证明上述指控事实,公诉人向法庭提交了被害人陈述、证人证言、作案现场示意图、证券客户信息、证券交易成交报告单、损失情况汇总表等证据。
Zhu and his defender held no objection to the facts as accused, but his defender maintained that: (1) the stock prices changed very often, and in the stock speculation, there was no intentional pursuit of losses so as to reduce the value. Seen from the account, the said purchase and sales might cause losses, however, along with the change of stock prices, the aforesaid transactions might also bring about profits or might be considered as timely sales, otherwise, larger losses might be suffered. This feature of stocks decided that the social harms from buying or selling the stocks of others would not be obvious or certain, thus, Zhu's acts lacked social harms, and Zhu should not be given a criminal penalty. The purchase or sales of stocks of someone else by Zhu might really destroy the property and encroach on the property rights and interests of that person. However, the damages for infringement and compensations between Zhu and the infringed party should be adjusted by the civil law. (2) The crime of intentional destruction of property as prescribed in Article 275 of the Criminal Law refers to the act of intentionally destroying public or private property, and the amount involved is relatively large or there are other serious circumstances. The object infringed upon in this crime should have a solid shape, could be seen and touched, and the intangible property or property rights should not be the object of this crime. Stocks are the securities as issued by joint-stock limited companies and the vouchers of property rights, and could not become the criminal object of the crime of intentional destruction of property. (3) Stocks are not like common property, and their prices would be under constant fluctuation. There are not only the real-time price, the highest price on the current day, the lowest price on the current day, but also the average price, transaction price, and closing price, etc. for the stocks. If the stocks are taken as the criminal object of the crime of intentional destruction of property, the calculation of the amount of losses has not been prescribed in the current laws and judicial interpretations, and the conviction would become a tough issue. (4) Even if the acts of Zhu constituted a crime, but he committed this crime for the first time and voluntarily surrendered himself to justice, and compensated for all the economic losses to the victim, so the social harms were not serious, and Zhu should be given a mitigated punishment. 被告人朱建勇及其辩护人对起诉书指控的事实无异议。辩护人认为:(1)股票行情千变万化,在股票炒作中,不存在故意追求损失便会减少价值的情况。从账面看,当初的买进或者抛出可能是损失的,但随着以后行情变化,可能会赢利,或者会认为幸亏及时抛出,否则将遭受更大损失。这个特点,决定了买进或抛出他人的股票,社会危害性不明显、不确定。这种行为缺乏社会危害性这一显著特征,不能依犯罪处理。朱建勇买进或抛出他人的股票,确实有可能损害他人的财产,是对他人财产权益的侵犯。朱建勇与被侵权人之间的侵权损害赔偿关系,应当用民法来调整。(2)刑法二百七十五条规定的故意毁坏财物罪,是指故意毁坏公私财物,数额较大或者情节严重的行为。此罪侵犯的对象,应当是具备一定固体形态,看得见、摸得着的物,无形财产或者财产权利不是本罪对象。股票是股份有限公司发行的有价证券,是财产权利凭证,不能成为故意毁坏财物罪的犯罪对象。(3)股票不同于一般财物,其价格呈不断波动状态,有即时行情、当日最高价、当日最低价、平均价、成交价、收盘价等。如果将股票作为故意毁坏财物罪的犯罪对象,那么犯罪数额如何计算,法律和司法解释没有规定,将是定罪的一个难题。(4)即使朱建勇的行为构成犯罪,因其是初犯,且有自首情节,并赔偿了被害人的全部经济损失,社会危害性不大,依法应给予减轻处罚。
Upon trial, Jing An People's Court of Shanghai Municipality held that: 上海市静安区人民法院经审理查明:
From April 29 to May 10 of 2002, Zhu made use of the account number and passwords he had known beforehand, and intruded into the stock trading account of Lu Zhenghui and Zhao Peihua (the victims and hereinafter referred to as Lu & Zhao) at the securities business department, and then altered the passwords, and used the capital and stocks of Lu & Zhao, and then bought the stocks at a high price and then sold them at a low price. On May 16, Zhu's act was detected when he was committing the crime again. On the basis of average transaction price of stocks, after the balance of stocks and capital in the said account of his first commitment of the crime minus those left in the said account after the crime occurred, Zhu had caused more than 197,000 yuan of losses to the account of Lu & Zhao. After the crimes were detected, Zhu immediately confessed all the facts and compensated for the economic losses to Lu & Zhao. 2002年4月29日至5月10日,被告人朱建勇利用事先获悉的账号和密码,侵入被害人陆正辉、赵佩花夫妇在证券营业部开设的股票交易账户,然后篡改了密码,并使用陆、赵夫妇的资金和股票,采取高进低出的方法进行股票交易。5月16日,朱建勇再次作案时被当场发现。按照股票成交平均价计算,用首次作案时该账户内的股票与资金余额,减去案发时留有的股票与资金余额,朱建勇共给陆、赵夫妇的账户造成资金损失19.7万余元。朱建勇被发现后,立即如实供认了全部事实,并赔偿了陆、赵夫妇的经济损失。
The evidence for proving the aforesaid facts included: 证明上述事实的证据有:
1. Statements of Lu & Zhao, which proved that: on May 15, 2002, they found that the passwords of their stock trading account opened at the securities business department had been altered, and there were stock transactions in their account from the last ten-day of April to May 16, however, they had never made any transaction, nor did they entrust someone else for stock transactions. 1.被害人陆正辉、赵佩花夫妇的陈述,证实他们于2002年5月15日发现,自己在证券营业部开设的股票交易账户密码已被篡改,4月下旬至5月16日该账户内还进行过股票交易,而这段时间里,他们没有进行过股票交易,也没有委托别人进行股票交易。
2. Testimonies of Fan Guilin and Jin Wen, the management personnel of the securities business department, as well as the client account information and materials at the securities business department, which proved that the passwords of the stock trading account opened at the securities business department by Lu & Zhao were altered on the computer at the 112 point of the room for middle-sized traders of the securities business department on April 29, 2002; and thereafter until May 10, someone had bought and sold the stocks through the stock trading account whose passwords had been altered on the computers at the points of 66, 112, 182 and 202 in the room for middle-sized traders of the securities business department for several times. In the morning of May 16, someone bought and sold the stocks through the stock trading account whose passwords had been altered on the computer at the 182 point special for Zhu in the room for middle-sized traders of the securities business department. 2.证券营业部管理人员樊桂林、金文的证言和证券营业部客户账户信息资料,证实陆正辉、赵佩花夫妇在该营业部开设的股票交易账户,其密码已于2002年4月29日通过该营业部中户室112站点的电脑被修改;此后直至5月10日,有人多次通过该营业部中户室66、112、182、202站点的电脑,利用修改过密码的股票交易账户买卖股票。5月16日上午,又有人在该营业部中户室182站点朱建勇专用的电脑上,进入修改过密码的股票交易账户进行股票买卖。
3. Testimonies of Qi Fuxing, a shareholder in the room for middle-sized traders of the securities business department, which proved that: in the morning of May 16, 2002, there was only Zhu on the computer for his exclusive use at the 182 point of the room for middle-sized traders. 3.证券营业部中户室股民戚福兴的证言,证实2002年5月16日上午,只有朱建勇一人在中户室182站点的朱建勇专用电脑处操作。
4. Confessions of Zhu, who said that: because he was not on good terms with Lu and wanted to give vent to his personal spite, he made use of the passwords he had known before to log on the stock trading account of Lu & Zhao on the computer at the 112 point of the room for middle-sized traders of the securities business department on April 29, 2002, and altered the passwords, bought the stocks at a high price and sold them at a low price up to May 16, so as to make Lu suffer economic losses. 4.被告人朱建勇的供述,内容是其因对陆正辉有意见而图谋报复,利用获悉的密码于2002年4月29日在证券营业部中户室112站点的电脑上登录陆、赵夫妇的股票交易账户,进入后就修改了密码,此后直至5月16日在该账户高进低出买卖股票都是其故意所为,目的是想使陆在经济上遭受损失。
5. The record sheets for stock transactions and the summary table of transactions occurred in the account of Lu & Zhao during the period from May 29 to May 10 of 2002 as provided by the securities business department, as well as the stock prices during the said period, which proved the aforesaid confessions of Zhu. 5.证券营业部提供的2002年4月29日至5月10日期间,陆正辉、赵佩花夫妇账户内发生的股票买卖交割单、交易情况汇总表,以及此段时间内的股票行情,印证了朱建勇的上述供述。
6. The summary table of stock trading losses as provided by the securities business department, which not only proved that Zhu had bought the stocks at a high price and then sold them at a low price in the account of Lu & Zhao, but also proved that this account suffered 197,924.78 yuan of economic losses. 6.证券营业部提供的股票交易损失汇总表,不仅印证了朱建勇关于在陆正辉、赵佩花夫妇账户内高进低出买卖股票的供述,还证实该账户因此遭受的经济损失达197924.78元。
7. The certification document provided by the securities business department, as well as the written confessions made by Zhu himself on May 16 and 17 of 2002, which proved that Zhu faithfully confessed all the criminal facts right after his criminal acts had been detected by the staff of the securities business department when he was committing the crime on May 16, 2002. 7.证券营业部提供的情况证明、朱建勇于2002年5月16日、17日书写的亲笔供词,证实2002年5月16日被告人朱建勇作案时被证券营业部工作人员发现后,立即如实供认了全部事实。
8. Statements of Lu Zhenghui, the documents on return of illicit gains as well as the confessions of Zhu, which proved that Zhu had compensated Lu & Zhao for all the economic losses. 8.被害人陆正辉的陈述、退赃单据和被告人朱建勇的供述,证实案发后,朱建勇赔偿了陆、赵夫妇的全部经济损失。
The aforesaid items of evidence were found to be true upon cross-examination, and could be proved with each other, and are sufficient to be the basis for ascertaining the facts of this case. 上述证据经质证均属实,且证据间能互相印证,足以作为认定本案事实的根据。
JUDGMENT'S REASONING 
Jing An People's Court of Shanghai Municipality held that: 上海市静安区人民法院认为:
I. On the issue concerning whether Zhu's acts could be judged by the Criminal Law 一、关于对被告人朱建勇的行为能否用刑法评价的问题
Article 2 of the Criminal Law prescribes that: “The aim of the Criminal Law of the People's Republic of China is to use criminal punishments to fight against all criminal acts in order to safeguard the security of the State, to defend the State power of the people's democratic dictatorship and the socialist system, to protect properties owned by the State, and properties collectively owned by the working people and properties privately owned by citizens, to protect citizens' rights of the person and their democratic and other rights, to maintain public and economic order, and to ensure the smooth progress of socialist construction.” Article 13 prescribes that: “A crime refers to an act that endangers the sovereignty, territorial integrity and security of the State, splits the State, overthrows the State power of the people's democratic dictatorship and the socialist system, undermines public and economic order, violates State-owned properties, properties collectively owned by the working people, or properties privately owned by citizens, infringes on the citizens' rights of the person, their democratic or other rights, and any other act that endangers society and is subject to punishment according to law. However, if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.” Article 275 prescribes that: “Whoever intentionally destroys or damages public or private money or property, if the amount involved is relatively large or if there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years, or criminal detention or be fined; if the amount involved is huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.” In order to give vent to his personal spite, Zhu secretly logged on the stock account of someone else, and bought and sold the stocks of someone else, and intentionally caused more than 197,000 yuan of losses to the said some else within the short ten days. His acts infringed on the citizens' ownership of private property and disturbed social and economic order, and had obvious social harms. According to Article 275 of the Criminal Law, his acts had constituted the crime of intentional destruction of property, and he should be given a criminal penalty. 刑法二条规定:“中华人民共和国刑法的任务,是用刑罚同一切犯罪行为作斗争,以保卫国家安全,保卫人民民主专政的政权和社会主义制度,保护国有财产和劳动群众集体所有的财产,保护公民私人所有的财产,保护公民的人身权利、民主权利和其他权利,维护社会秩序、经济秩序,保障社会主义建设事业的顺利进行。”第十三条规定:“一切危害国家主权、领土完整和安全,分裂国家、颠覆人民民主专政的政权和推翻社会主义制度,破坏社会秩序和经济秩序,侵犯国有财产或者劳动群众集体所有的财产,侵犯公民私人所有的财产,侵犯公民的人身权利、民主权利和其他权利,以及其他危害社会的行为,依照法律应当受刑罚处罚的,都是犯罪,但是情节显著轻微危害不大的,不认为是犯罪。”第二百七十五条规定:“故意毁坏公私财物,数额较大或者有其他严重情节的,处三年以下有期徒刑、拘役或者罚金;数额巨大或者有其他特别严重情节的,处三年以上七年以下有期徒刑。”被告人朱建勇为泄私愤,秘密侵入他人的账户操纵他人股票的进出,短短十余日间,已故意造成他人账户内的资金损失19.7万余元。这种行为,侵犯公民的私人财产所有权,扰乱社会经济秩序,社会危害性是明显的,依照刑法二百七十五条的规定,已构成故意毁坏财物罪,应当受刑罚处罚。
II. On the issue concerning whether the property rights in the name of stocks could be the criminal object of the crime of intentional destruction of property 二、关于股票所代表的财产权利能否作为故意毁坏财物罪的犯罪对象问题
The “crime of intentional destruction of property” refers to such an act by which one intentionally destroys or damages public or private property, and the amount involved is relatively large or if there are other serious circumstances. The law prescribes the crime of intentional destruction of property for the purpose of protecting public and private property, and further protecting the rights and interests of the obligees of these properties. The “property” in the Criminal Law not only includes tangible objects but also intangible objects, and if it has a certain economic value, it can become the rights and interests of the obligees, and can be the criminal object of the crime of intentional destruction of property. The electricity, coal gas and other intangible property have been clearly determined as the criminal object of the crime of theft by the specific provisions of the Criminal Law and the relevant judicial interpretations. The property rights in the name of stocks can also become the criminal object of the crime of intentional destruction of property. 故意毁坏财物罪,是指故意毁灭或者损坏公私财物,数额较大或者有其他情节严重的行为。法律规定故意毁坏财物罪,旨在通过保护公私财物,进而保护该财物权利主体的权益。刑法意义上的财物,既包括有体物,也包括无体物,只要它具有一定经济价值,能成为权利主体依法享有的权益,就可以成为故意毁坏财物罪的犯罪对象。电力、煤气等无形财产,已经被刑法分则和相关的司法解释明确规定为盗窃罪的犯罪对象。股票所代表的财产权利,也可以成为故意毁坏财物罪的犯罪对象。
III. On the Calculation of the Criminal Amount 三、关于犯罪数额的计算问题
As to the issue of whether the intentional destruction of property constitutes a crime, the criminal amount is an essential element. Stocks are not like common property, and there are not only the real-time prices, the highest price on the current day, the lowest price on the current day, but also the average price, transaction price, and closing price, etc. for the stocks, and the prices would be under constant fluctuation. As to how to calculate the amount of losses from the acts of intentional destruction of property of others when taking the stocks as the criminal object, no clear provision in the current laws and judicial interpretations has been prescribed. Article 5 of Several Issues of the Supreme People's Court Regarding the Specific Application of Laws for the Trial of Larceny Cases prescribes that: in the case of stealing stocks, the amount shall “be calculated according to the average price of all the transactions of this kind of stocks as published by the stock exchange on the present day”. Since both the crime of intentional destruction of property and the larceny crime are the crimes of destroying property, the criminal amount involved in this case can be calculated by referring to the aforesaid judicial interpretation. 故意毁坏财物是否构成犯罪,数额多少是一个要件。股票不同于一般财物,既有即时行情、当日最高价、当日最低价,也有平均价、成交价、收盘价,等等,而且其价格呈不断波动状态。对以股票为犯罪对象的故意毁坏他人财物行为,如何计算损失数额,目前法律和司法解释都未明确规定。最高人民法院在《关于审理盗窃案件具体应用法律若干问题的解释》第5条规定,盗窃股票的,数额“按被盗当日证券交易所公布的该种股票成交的平均价格计算。”故意毁坏财物罪与盗窃罪同为侵犯财产类的犯罪,因此应参照上述司法解释计算本案的犯罪数额。
IV. On the sentencing issue 四、关于量刑问题
Paragraph 1 of Article 67 of the Criminal Law prescribes that: “Voluntary surrender refers to the act of voluntarily delivering oneself up to justice and truthfully confessing one's crime after one has committed the crime. Any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. The ones whose crimes are relatively minor may be exempted from punishment.” Zhu's acts constituted the crime of intentional destruction of property, but he made confession and compensated victim for all the economic losses right after his acts had been detected by the staff of the stock exchange, and after that, he surrendered himself to justice in the company of the staff of the stock exchange, therefore, there was a circumstance of voluntary surrender and he should be given a mitigated punishment. According to the criminal circumstances and repentance of Zhu, the imposition of reprieve on Zhu would not cause any harm to the society according to Paragraph 1 of Article 72 of the Criminal Law. 刑法六十七条第一款规定:“犯罪以后自动投案,如实供述自己的罪行的,是自首。对于自首的犯罪分子,可以从轻或者减轻处罚。其中,犯罪较轻的,可以免除处罚。”被告人朱建勇的行为虽已构成故意毁坏财物罪,但在被证券交易所工作人员发现后,朱建勇立即坦白并赔偿了被害人的全部经济损失,之后又随证券交易所工作人员归案,有自首情节,依法予以减轻处罚。根据朱建勇的犯罪情节和悔罪表现,依照刑法七十二条第一款的规定,对其适用缓刑也确实不致再危害社会。
In sum, the bill of indictment was right by claiming that Zhu committed the crime of intentional destruction of property, the facts were clear, and the evidence was sufficient, and the accusation was established. Part of the defenses put forward by the defender conformed to facts and law, and thus should be adopted. 综上所述,起诉书指控被告人朱建勇犯故意毁坏财物罪,事实清楚,证据确凿,指控成立。辩护人提出的部分辩护意见,符合事实和法律,应予采纳。
JUDGMENT 
Based thereon, Jing An People's Court of Shanghai Municipality adjudicated on October 24, 2002 that: 据此,上海市静安区人民法院于2002年10月24日判决:
Zhu constituted the crime of intentional destruction of property, and was given a fixed-term imprisonment of one and a half year, and was given a two-year reprieve. 被告人朱建勇犯故意毁坏财物罪,判处有期徒刑一年六个月,宣告缓刑二年。
COMMENTARY 
The judgment of the first instance had come into effect.

 一审判决已发生法律效力。
 

     
     
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