Original Comrade-in-Arms New 2022-02-27 06:36
Included in the topic #Veteran New Biography 2
Football matches and judicial authority
Tang Qiutao/Wen
The topic of "Football Games and Judicial Jurisdiction" seems to be out of reach, can it be discussed together? The result of an insult case reminds me of the "offside goal" in football.
One morning in August 1999, villager Yang X (female) had a dispute with a neighbor Wang X because of the renovation of the house. In the afternoon, Wang X went to the Yang family building site to stop the construction, and started to open the template for beating the floor beam, and Yang X picked up a shovel and slapped Wang X's head. Wang Mou's relatives Sun Mouqin and Sun Mouting rushed to the scene and exchanged blows with the Yang family. Sun Mouqin shouted while shouting, "Give her (referring to Yang Moumou) a bright appearance!" While tearing Yang Moumou's collar. With the participation of Sun Mouting and Wang Moumou, the close-fitting vest worn by Yang Moumou was torn off the ground, and Yang Moumou ran to the house naked. The organ intervenes in the investigation and transfers it to the procuratorate for prosecution. According to the public prosecution charges of the county procuratorate, the county court ruled that the defendants Sun Mouqin, Sun Mouting, and Wang Mouqin had openly insulted others by violent means, and their acts constituted the crime of insult, and sentenced Sun Mouqin to four months of detention, and Sun Mouting and Wang Mouqin were exempted from criminal punishment if the circumstances of the crime were minor. After the first-instance judgment was pronounced, the three defendants appealed on the grounds that the facts were unclear and the evidence was insufficient.
When the collegial panel discussed the case, it did not revolve around the determination of the facts and the conviction and sentencing of the original judgment as usual, but focused on the legality of the case-handling procedures. Some members of the collegial panel raised the question that if the facts of the case are clear, the evidence is sufficient, and the conviction and sentencing are not improper, can the original judgment be upheld? My opinion is that it is still not possible, in order to make the reasoning clearer, I have made an analogy that the procedural problem in this case is that the procuratorial organ and the court of first instance tried the cases that were accepted only after being told by law as public prosecution cases, exceeding the judicial authority, like an "offside goal" on the football field. If the original judgment is upheld in this case, it is equivalent to giving a de facto affirmation to the court of final appeal for violations of criminal law and criminal procedure law, and recognizing that "offside goals" can also be scored.
Whoever, in accordance with the first paragraph of article 246 of the Criminal Law amended in 1997, openly insults another person by violence or other means or fabricates facts to slander another person, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. The second paragraph of this article clearly stipulates that the crimes mentioned in the preceding paragraph shall only be dealt with if they are told, except for those that seriously endanger social order and the interests of the state. The case arose from a dispute between rural neighbours, which eventually led to mutual beatings, including insults, resulting in the loss of the upper body clothes of a woman on one side, which obviously did not constitute a serious endangerment to social order and national interests. Therefore, this case undoubtedly belongs to the case of telling only to be handled, and not to the public prosecution case that causes the result of "seriously endangering social order and national interests". Cases that are handled only after being told are private prosecution cases, which are clearly stipulated by the Criminal Procedure Law and relevant judicial interpretations. The first type of case in the scope of private prosecution cases stipulated in the Code of Criminal Procedure is the case that is only handled after telling. Paragraph 3 of article 18 of the Criminal Procedure Law clearly stipulates that private prosecution cases shall be directly accepted by the people's courts.
I personally understand that the state lists minor criminal cases arising from certain civil disputes as private prosecution cases, one is to protect the rights of the parties and facilitate litigation, the second is to avoid the waste of state litigation resources, and the third is to help the parties to settle on their own and prevent the intensification of contradictions. As the saying goes, "A generation of lawsuits is a vendetta of three generations." "There are many ways in which society can resolve civil disputes, and excessive interference by powerful organs is not conducive to social harmony."
The Penal Code and the Code of Criminal Procedure are the basic laws of the state second only to the Constitution in terms of effectiveness, and no judicial organ can violate the provisions of these two laws. At that time, the confused concept of "emphasizing substance and neglecting procedure" still existed to varying degrees in the minds of some judicial personnel. In their view, as long as the application of substantive law is well grasped and the criminal punishment that is finally punished as it should be, judicial justice is achieved. They do not understand, at least not really understand, that the just realization of the entity cannot be separated from the guarantee of procedural justice, and procedural fairness is also an important content and guarantee of judicial justice. In trial practice, only by achieving substantive and procedural fairness can we truly be impartial and achieve judicial fairness.
Finally, the second instance found that the jurisdiction of the case was improper and the case handling procedures were illegal, and ruled to revoke the original judgment and remand it to the court of first instance. Subsequently, the prosecutor's office withdrew the indictment. The second-instance ruling in this case not only negated the first-instance judgment of the lower court, but also denied the prosecution of the procuratorial organs. It is not difficult to imagine what significance this "shocking" treatment of the case by the second instance has for the court of first instance and the procuratorate that initiated the prosecution.
【About the author】Tang Qiutao, male. Born in November 1947, a native of Lulong, Hebei Province, he graduated from the Chinese language and literature of the self-study examination, joined the army in February 1968, and successively served as a soldier, clerk, squad leader, propaganda officer, organization officer, and political coordinator. In 1987, he was transferred to the Qinhuangdao Intermediate People's Court, where he successively served as a judge, vice president, division president, and member of the adjudication committee, and performed outstanding and remarkable achievements in handling a major case, and was jointly awarded the third class merit by the Central Commission for Discipline Inspection, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Supervision, the Hebei Provincial CPC Committee, and the Hebei Provincial People's Government. Senior Judge retired in 2007. He is currently a member of the All-China Philatelic Federation and a member of the Council of the All-China Philatelic Federation. The first-instance judgment of the lower court also negated the prosecution of the procuratorate. It is not difficult to imagine what significance this "shocking" treatment of the case by the second instance has for the court of first instance and the procuratorate that initiated the prosecution.
【About the author】Tang Qiutao, male. Born in November 1947, a native of Lulong, Hebei Province, he graduated from the Chinese language and literature of the self-study examination, joined the army in February 1968, and successively served as a soldier, clerk, squad leader, propaganda officer, organization officer, and political coordinator. In 1987, he was transferred to the Qinhuangdao Intermediate People's Court, where he successively served as a judge, vice president, division president, and member of the adjudication committee, and performed outstanding and remarkable achievements in handling a major case, and was jointly awarded the third class merit by the Central Commission for Discipline Inspection, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Supervision, the Hebei Provincial CPC Committee, and the Hebei Provincial People's Government. Senior Judge retired in 2007. He is currently a member of the All-China Philatelic Federation and a member of the Council of the All-China Philatelic Federation.