Zhang Yanan
Criminal Trial Division, Shanghai First Intermediate People's Court
Assistant Judges of the Fourth Level
Wu Ya'an
Assistant judges at the first level
In this legal lecture hall, Zhang Yanan, assistant judge of the criminal trial division of the First Intermediate People's Court of Shanghai Municipality, and Wu Ya'an, assistant to the first-level judge, discussed the general rules and methods of conviction and sentencing.
Part 1
General rules and methods of conviction
01
Rules for the integrated evaluation of the quality and quantity of crimes
02
Full and complete evaluation rules
03
Duplicate evaluation rules are prohibited
part 01
The rule of integrated evaluation of the quality of crime and the amount of crime means that, in view of the fact that the essence of the crime is an act of infringing on legal interests, the evaluation of whether an act constitutes a crime should be comprehensively evaluated from the two aspects of the quality of the crime and the amount of the crime.
(1) Judgment of infringement of legal interests
Legal interests refer to the legitimate rights and interests protected by the criminal law. To evaluate whether an act constitutes a crime, it should first be judged whether there is an infringement of legal interests. For administrative offenders and acts that formally constitute natural offenses but involve the norms of the preceding law, the following paths may be followed when judging the infringement of legal benefits:
First, it is not appropriate for acts permitted or approved by the preceding law to be considered as constituting a crime. According to the principle of the unity of law and order, if the commission of an act is allowed or recognized by the preceding law, it does not constitute a crime under criminal law, and it should not be found to have violated the legal interests protected by the criminal law.
step1：
Review whether the counterfeiter has a basis and basis for the claim. According to the Law on the Protection of Consumer Rights and Interests, the Provisions on Several Issues Concerning the Application of Law in the Trial of Food and Drug Dispute Cases, etc., at least in the field of food and drugs, the people's court cannot but not support the purchaser who knows that there is a quality problem in the goods and still buys and sues for compensation. Of course, the premise is that the food and medicine in question used for the claim must be sold by the operator, and the operator itself is at fault.
step2：
Determine whether the behavior is threatening and intimidating. Under the premise of having a basis for claims, the purchaser's report or complaint to the market supervision department is a way to resolve disputes given by law, and is not a threatening and intimidating act in the crime of extortion.
step3：
Review whether the content of the claim is clearly beyond the scope of the claim. If there is no clear excess of the claim, it cannot be considered to have caused serious infringement of the property rights and interests of the merchant.
Second, for acts that are not allowed or not recognized by the preceding law, it should be further judged whether the preceding law is consistent with the normative purpose of the criminal law. If there is no agreement, it means that the legal interests protected by the two are not identical. In this case, it is not appropriate to judge whether the act infringes on the interests of the law, and it is no longer appropriate to base the determination of the previous law, that is, the judgment of criminal illegality has relative independence.
Before the revision of the Drug Administration Law, "drugs imported without the approval of the state" were also treated as counterfeit drugs, with the purpose of standardizing the order of drug management. The legal benefits protected by the crime of producing and selling counterfeit drugs are not only the order of drug management, but more importantly, the safety of drugs. The normative purposes of the two are not consistent. Therefore, it is not appropriate to treat cases of illegally imported drugs as the crime of selling counterfeit drugs. After the revision of the Drug Administration Law in 2019, the determination of "counterfeit drugs" returned to the "efficacy standard", which means that the sale of drugs that have not obtained import approval is no longer treated as the crime of selling counterfeit drugs. Considering that such acts still disrupt the order of drug management, the crime of obstructing drug management added by the Criminal Law Amendment (ELEVEN) can be regulated for situations that are sufficient to endanger human health.
Third, when there is a new type of behavior that is not clearly stipulated in the preposition law, it is not possible to make the next judgment or even deny the existence of the harmfulness on the grounds that the preposition law is not clearly stipulated.
Determine whether new types of behavior and traditional behavior are comparable in terms of social harm. If the two are consistent in terms of the degree of criminality and social harmfulness, or even the social harmfulness of the new type of behavior has exceeded the traditional harmful behavior, it is necessary to punish.
Review whether the corresponding laws have applicable provisions on new types of conduct. The legal provisions are intended to provide a basis for regulating inexhaustible new situations. If you are afraid to use it, the bottom clause will become the law on paper.
The principle of proportional leniency should be adhered to when sentencing new types of conduct. Considering that the bottom clause is lacking in providing expectations for conduct, for the defendant who commits the new act, although he has a general understanding of the harmfulness of the act, he does not have a clear understanding of whether it is illegal or constitutes a crime, so the sentence is appropriately lenient.
(2) Comprehensive measurement of the amount of crime
Not all violations of legal interests constitute crimes. The establishment of a crime shall also consider the degree of guilt.
The provisions on the amount of crimes in the provisions of the Criminal Law are mainly reflected in two aspects: one is the proviso clause in the general provisions of the Criminal Law; the other is the provisions on the amount, circumstances and consequences of some specific crimes in the sub-provisions of the Criminal Law. When applying specifically, the following two points should be grasped:
First, crimes in which the minimum amount of crime is not specified in the indictment and only express the characteristics of the conduct should be combined with the provisions of the proviso, the preceding law, and the "Public Security Administration Punishment Law" to appropriately grasp the degree of the amount of crime, so as to leave sufficient room for punishment for the illegal act.
Second, where the minimum amount of guilt is clearly stated in the incriminating statement, it should be accurately understood and truly grasped in practice. For example, the Criminal Law Amendment (XI) makes serious circumstances a criminal element constituting the crime of throwing objects from a height. To determine whether the high-altitude projectile behavior is a serious circumstance, it shall be comprehensively judged in conjunction with the time of throwing, the floor to be thrown, the characteristics of the thrown object, the consequences of the behavior, and the subjective malignancy of the perpetrator.
part 02
The rules for full and complete evaluation refer to the fact that when evaluating a criminal act, neither artificial trade-offs can be made for the overall behavior, nor artificially divided the overall behavior, and a full and complete evaluation of the criminal act and process shall be conducted.
(1) A full and complete evaluation of the criminal process
Several acts committed under the deliberate domination of the same crime should generally be evaluated as a whole.
Using acts that directly infringe upon legal interests as the basis for conviction can better ensure the integrity of criminal law evaluations.
Determining the amount of robbery within the same range as the amount of premeditated crime, the amount of profit and the amount of losses of the victim can fully and completely evaluate the harmfulness of the entire act.
(2) Full and complete evaluation of criminal conduct
◆ Point 1: The evaluation is insufficient. "Using the money from bribery to pay bribes" infringes on the new legal interests and has independently constituted the crime of bribery, and it is only found that the crime of accepting bribes is not fully evaluated.
◆ Point 2: Repeat the evaluation. The fact that the crime of accepting bribes is imposed within the corresponding statutory range of punishment and then found to constitute the crime of bribery means that the circumstances of "the use of stolen money and stolen goods for bribery" have been evaluated twice.
◆ Point 3: Full and complete evaluation. However, the sentencing should generally not be lower than that imposed on the defendant when he was treated solely as a bribe.
part 03
The rule of prohibiting duplicate evaluations means that two or more legal evaluations cannot be given to the same harmful act or circumstances.
(1) The same fact, which is already a constituent element of the previous crime, can no longer be used as a constituent element of the subsequent offence
The means of violence have been evaluated once in the constituent elements of the crime of forced indecency, so the act of obtaining money should be evaluated as theft rather than robbery.
(2) Conduct that has already been made a requirement for criminalization cannot be repeatedly evaluated as sentencing circumstances that increase the punishment
When "in public in a public place" is used as an incriminating circumstance for the crime of forced indecency, it cannot be repeatedly evaluated as an aggravating circumstance at the time of sentencing.
(3) The disposition of property involved in a criminal case shall follow the rules prohibiting duplicate evaluations
The defendant's illegal gains are derived from the losses of the victim's unit, which are essentially the same assets involved in the case, and cannot be evaluated repeatedly.
Part 2
General rules and methods of sentencing
Sentencing is an important link in the court's criminal trial activities, and it is of great significance in criminal justice activities. However, in relation to the normative nature of conviction, judges also need to master the general rules and methods of sentencing to ensure that sentencing is appropriate and balanced.
Understand and apply the old and light rules
General rules for sentencing single-accused
General rules for sentencing multiple defendants
In applying the principle of combining the old with the light, the following position should be adhered to: the principle of taking the old as the principle and the leniency as the exception, generally taking the law at the time of the application of the act as the principle, and only when the new law makes changes to the constituent elements of the old law, statutory punishment, and the method of enforcement of criminal punishment that are obviously beneficial to the defendant, the new law will apply. The application of the new law does not substantially increase the burden on the accused. If the old law is reasonably interpreted, it is possible to achieve the proportion of criminal responsibility and punishment, the new law should not be blindly applied. When comparing the severity of new and old penalties, the following methods of judgment shall be adhered to.
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First, the statutory sentences are compared. Priority is given to the highest statutory sentence, if the highest statutory sentence is the same, then the lowest statutory sentence, and if the minimum statutory sentence is the same, then the additional sentence. If the main sentence can compare the results, there is no need to compare additional sentences. Where there is a principal-vassal relationship between the principal punishment and the additional punishment, the comparative conclusion of the main punishment shall prevail. The main and additional sentences shall not be subject to the new and old laws, respectively. If the distinction is applied, on the one hand, it will undermine the integrity and unity of the same law, and on the other hand, it will also lead to difficulties for judges in invoking the law.
Second, compare the statutory range of sentences that should be specifically applied. Whether the sentence is lighter is not simply a comparison of individual statutory sentences, but a comparison of the specific statutory sentence range or range that should be applied in a single case, and it is necessary to comprehensively consider the various factors related to the case that affect the severity of the punishment and make an accurate judgment. That is to say, according to the degree of social harm, specific circumstances, nature of the crime, etc., the new and old criminal law should be applied to test, determine the range or range of punishment that should be applied, and specifically compare the severity of the punishment.
Third, compare the scope of application of crimes and penalties. If the statutory punishment is comparable and the comparison is not as serious as the severity, it may further compare the limited scope of the crime and the conditions for the application of the punishment, compare the scope of the subject and act of the crime provided for in the law, and if the conditions for the application or scope of the heavy sentence are more stringent, it may be regarded as a light law, and if the conditions or scope of the application of the heavy sentence are relatively relaxed or vague, it may be regarded as a heavy law. Because when the scope of the restriction is relatively loose or vague, there is a danger that a heavy sentence will be applied to some harmful acts that can be heavy or light, so when the statutory sentence is equivalent, the conditions and scope of the application of the heavy punishment in the crime are strict, and it should be regarded as a light law.
For the sentencing of a single defendant, on the one hand, it should be based on criminal responsibility, adhering to the rule of orderly adjudication of the main and auxiliary facts, on the other hand, the relationship between criminal responsibility and various sentencing circumstances should be properly handled, and the range of adjustments to the punishment of the sentencing circumstances should be reasonably limited.
First, adhere to the rules of the main and auxiliary facts in order of adjudication. The principle that should be adhered to in sentencing is that objectivity is the mainstay, subjectivity is supplemented, and the main and auxiliary facts should be adjudicated in an orderly manner. That is, the objective harmfulness of the act (including the actual danger) is used as the basis for determining the punishment, and the subjective harm of the act is used as the basis for adjusting the punishment. Specifically, when sentencing, the first factor that should be considered is the degree of harm or actual danger caused by the harmful behavior to society, as the basis for determining the statutory range of punishment or the specific amount of punishment, and at the same time taking into account the subjective malignancy of the perpetrator and the degree of personal danger, so as to appropriately adjust the severity of the punishment.
Second, adhere to the rules of reasonable adjustment of sentencing circumstances. Sentencing shall take the facts and criminal responsibility as the basis for determining the punishment, and the sentencing circumstances only have a mediating effect on the punishment, and even if there are multiple coexisting lenient circumstances, the comprehensive leniency adjustment range of the punishment generally cannot exceed one-half of the sentence that should be imposed, so as to ensure that the punishment of criminal responsibility is appropriate. When there are multiple reverse sentencing circumstances at the same time, the basic sentencing range or range may be determined on the basis of the social harm of the behavior and the subjective malignancy of the perpetrator, without considering other sentencing circumstances, and then comprehensively balanced according to each sentencing circumstance.
When sentencing, it is also necessary to pay attention to the overall balance of sentencing, not only to ensure the balance of sentencing of different defendants in similar cases, but also to achieve similar cases. It is also necessary to ensure a balance of sentencing between different defendants in the same case, including the balance of sentencing between the principal and accessories and the crimes of upstream and downstream. It is also necessary to ensure a balance between the sentencing of crimes committed by units and crimes committed by natural persons.
First, adhere to the same punishment rules for similar cases. Between similar cases, the sentencing shall reflect the individual equivalent sentences on the basis of overall consistency. Overall consistency means that in cases where the nature and circumstances of the case are basically the same or similar, a generally consistent punishment shall be imposed. Individual proportionality means that all circumstances in individual cases that can reflect the social harm of the behavior and the subjective malignancy of the perpetrator should be reflected in the sentencing.
Second, adhere to the rules for the coordination of punishment of co-defendants. Sentencing shall employ a multi-dimensional sentencing balance method. On the one hand, it is necessary to grasp the balance of heavy and light, and also to grasp the balance of light and heavy. On the other hand, it is necessary to grasp the balance of sentencing between the principal offender and the accessory, as well as the sentencing balance between the offender and the upstream and downstream crimes.
Third, the rules for the coordinated punishment of joint crimes committed by units and natural persons. When a unit and a natural person constitute a joint crime, due to the different criteria for criminalization, the standard of conviction and punishment for the main perpetrator shall be taken as the base point, and a distinction shall be made to determine the crime. For example, if the unit mainly commits crimes, the individual plays a secondary or auxiliary role, and the relevant provisions of the unit crime are applied to the conviction and sentencing. Individuals are the main perpetrators of crimes, and units provide assistance or facilitation, and their corresponding statutory penalties are applied to units and natural persons. Units and individuals jointly committing crimes, it is difficult to distinguish between primary and secondary status, and their respective statutory criminal penalties are also applied separately.
Source| Shanghai No. 1 Intermediate People's Court
Author: Zhang Yanan, Wu Ya'an
Responsible editor | Qiu Yue