【Copyright Notice】The copyright belongs to the original author, only for learning and reference, it is forbidden to use it for commercial purposes, if the source is marked incorrectly or violates your rights and interests, please inform us, we will delete it immediately. Originally published: The Criminal Law Dictionary collates and summarizes each series, and on this basis, the judge next door summarizes the 120-129 series (from "set" to "series" from 125 onwards). Finishing: Deng Zihua.
Criminal Trial Reference, vols. 120-130
Summary of the gist of 168 cases
Episode 120
1. Hu Lunxia Traffic Accident Case (No. 1297)
The gist of the adjudication: The subject of the crime of traffic accident is the general subject, and pedestrians can also constitute this crime. The division of the perpetrator's responsibility for the accident in a criminal case involving a traffic accident may be clarified in conjunction with other evidence on the basis of the "Road Traffic Accident Determination".
2. Case of Wu Xiaojun illegally operating similar businesses and offering bribes to non-state functionaries (No. 1298)
Gist of the Adjudication: "State-owned companies and enterprises" in the crime of illegally operating similar types of business are not limited to wholly state-owned companies and enterprises. If the actor takes advantage of his position to learn of a trading opportunity with a counterparty, he fails to report it to the Company, deprives the Company of the trading opportunity and takes it for himself, which is a business operation of the same type. Even if the same kind of business is beyond the legal scope of business of the Company, as long as it does not violate the prohibitive provisions of the state, it does not affect the determination of the nature of the illegal operation of the same type of business.
3. Gao Shuhua and Sun Lihai Contract Fraud Case (No. 1299)
The gist of the adjudication: In a contract fraud case, whether the defendant has the purpose of illegal possession should be judged based on the background of the signing of the contract, the efforts made by the defendant for production and operation, the whereabouts and uses of the money, etc., and the conclusion that the defendant has the purpose of illegal possession cannot be directly concluded simply because the defendant has deceitful conduct. In particular, if the issue of the actor's assets and liabilities is not prominent, and the counterparty to the contract can seek relief through civil channels, and the losses can be recovered to a certain extent, it should not be easily determined to be a crime of fraud, which is also in line with the principle of modesty in the Criminal Law.
4. Shen Chao's Intentional Homicide and Robbery Case (No. 1300)
Gist of the adjudication: The sealing of a criminal record is not the expungement of a criminal record, and it does not preclude the legal evaluation of a sealed criminal record in the criminal proceedings after the sealing.
5. Jiang Weiwei robbery case (No. 1301)
The gist of the adjudication: Where the perpetrator premeditated and intentionally killed in order to steal property, or intentionally killed in order to subdue the victim's resistance in the course of stealing property, it is to be convicted and punished as the crime of robbery. In practice, the perpetrator usually combines the crime of intentional homicide and the crime of theft to take away the victim's property by taking advantage of the fact that the victim is dead or unable to resist after committing the act of homicide. Therefore, the distinction between the above two qualitative characteristics mainly lies in the difference in the subjective motives of the actors. As to whether the perpetrator had the purpose of robbing money, first, it is necessary to review whether the defendant's confession and justification are reasonable, and second, to examine whether the subjective purpose of the defendant's confession is consistent with the objective conduct and objective circumstances.
6. Theft case of Xi Feifei, Li Chao, Jiang Chaochao, and Lin Kai (No. 1302)
The gist of the adjudication: "personal property used in the crime" should be property that has a regular or close connection with the crime and plays an important role in the commission of the crime, and confiscation will not cause harm to the lawful rights of third parties. In addition, when confiscating property used in a crime is to be confiscated, the principle of proportionality should be adhered to to to measure whether the value of the property is commensurate with the harmfulness of the crime.
7. Pan Ping Theft Case (No. 1303)
The gist of the adjudication: Those who escape during the period of release on guarantee and voluntarily surrender and truthfully confess their crimes do not meet the requirements of the Criminal Law for the establishment of voluntary surrender, do not conform to the value orientation of the voluntary surrender system, and the determination of voluntary surrender is not in harmony with the relevant provisions of the Criminal Procedure Law, so it cannot be found to be voluntary surrender.
8. Liu Kang et al. Extortion Case (No. 1304)
The gist of the adjudication: After signing a housing lease contract with a tenant, a "black intermediary" may be convicted and punished for the crime of extortion if it uses soft violence such as threats and harassment to forcibly collect unreasonable fees, or fabricates various reasons to forcibly terminate the contract and force the tenant to move out of the house, and refuses to return the money that should be refunded.
9. Lin Zuoming's case of picking quarrels and provoking troubles (No. 1305)
The gist of the adjudication: The conduct of stopping a car with a knife and intimidating a driver after taking drugs and causing hallucinations may be found to be the crime of picking quarrels and provoking trouble, depending on the circumstances. If the original judgment convicts multiple crimes, and upon review at the second instance trial, it is found that it should be convicted of one crime without changing the facts found in the original judgment, the punishment for one crime may be increased up to no more than the original judgment's decision to enforce the punishment.
10. Case of Han Zhaohai et al. Organizing, Leading, and Participating in an Underworld Criminal Organization (No. 1306)
Gist of the Adjudication: Underworld criminal organizations have organizational, economic, behavioral, and harmful characteristics. In judicial practice, the usual manifestations of "routine loans" are: first, creating the illusion of private lending; the second is to create false payment facts such as capital account flows; (3) deliberately creating a breach of contract or arbitrarily determining a breach of contract; Fourth, maliciously inflating the amount of borrowing; Fifth, it is both soft and hard to "collect debts". "Routine loans" that do not employ obvious violence or threats, but mainly rely on fabricating facts or concealing the truth to achieve the purpose of illegal possession, and "defrauding" the victim's property, are generally punished as the crime of fraud. When determining the amount of the crime of fraudulent lending, property illegally taken in other names than the amount of principal actually paid to the victim by the perpetrator shall be included in the amount of the crime.
11. Case of transporting drugs in Changmao and Wujiang (No. 1307)
Gist of the Adjudication: Where the amount of drugs involved in the case just exceeds the actual amount of the death penalty in our possession, and the death penalty shall be applied in accordance with law, the death penalty is generally only applied to the one of the principal offenders with the greatest criminal responsibility. Where the amount of drugs involved in the case is huge or larger, and the principal offender with less culpability has legally-prescribed or major discretionary aggravating circumstances, and the death penalty for two or more persons conforms to the principle of proportionality of crime and punishment, and is conducive to the balance of sentencing in the entire case, two or more persons may be sentenced to death in accordance with law.
12. Wang Daojun's Forced Prostitution Case (No. 1308)
The gist of the adjudication: Repeatedly forcing minors who have reached the age of 14 to engage in prostitution does not constitute the "serious circumstances" of the crime of forced prostitution. The number of forced prostitutions, while not considered a "serious circumstance", should be considered as a discretionary sentencing circumstance.
13. Case of Hu Yang et al. Assisting in Organizing Prostitution (No. 1309)
The gist of the adjudication: Neither a funder nor a major beneficiary, but only as an executive manager because he was hired to carry out daily management of the illegal and criminal activities of prostitution, constitutes an accomplice to the crime of organizing prostitution, not the crime of assisting in organizing prostitution.
14. Case of Zhang Haifeng Organizing Prostitution, Li Zhiqiang Assisting in Organizing Prostitution, and Rao Youcai Accommodating Prostitution (No. 1310)
Gist of the Adjudication: After committing adultery with an underage girl, the underage girl is sent to the person who organized prostitution to engage in prostitution activities, and the punishment shall be combined for the crime of rape and the crime of assisting in organizing prostitution. Acts of providing one's contracted business premises to others for prostitution shall be convicted and punished as the crime of harboring prostitution.
15. Case of prostitution introduced by Guo XX (No. 1311)
The gist of the adjudication: The introduction of mentally handicapped persons into prostitution is generally convicted and punished in accordance with the crime of procuring prostitution. However, in the following circumstances, the offender shall be convicted and punished for the crime of rape: (1) If the introducer also commits adultery with a mentally handicapped person in the course of procuring prostitution, the introducer shall be convicted and punished for the crime of rape, and if the act of procuring prostitution also constitutes a crime, the crime of rape and the crime of procuring prostitution shall be punished concurrently. (2) The client's conduct constitutes the crime of rape, and the introducer also knows that the person introduced is a mentally handicapped person who has no ability to defend himself sexually.
16. Yang Huairong Prostitution Case (No. 1312)
The gist of the adjudication: Prostitution and soliciting prostitution is a reciprocal act, and as long as both parties reach an agreement on prostitution and proceed to carry it out on the basis of that intention, prostitution can be determined, and the act of accommodating the perpetrator to carry out the act shall also be found to be accommodating prostitution, that is, the crime of accommodating prostitution is a crime, and whether or not the act of prostitution or soliciting prostitution is completed does not affect the establishment of this crime.
17. Tong Maohua and Niu Yujie privately divided state-owned assets, and Tong Maohua embezzled public funds and accepted bribes (No. 1313)
The gist of the adjudication: The act of concealing state-owned assets during the period of enterprise restructuring and turning them into state-owned enterprises, with numerous operations and management, and employee shareholdings, should be punished as the crime of privately dividing state-owned assets. After the unit's collective research and decision, the use of the unit's fixed bank deposit receipts as a pledge to make loans for others does not constitute the crime of embezzlement of public funds. When determining whether a bribe was accepted in the name of borrowing, it should not only be based on whether there are written loan procedures, but should also be based on a comprehensive judgment based on the reason for the loan, the whereabouts of the money, the relationship between the two parties, whether there are economic dealings, whether the lender requires the borrower to use the convenience of his position for personal gain, whether there is an expression of intent and behavior to repay the loan after borrowing, whether there is a ability to make restitution, and the reasons for not returning.
121 episodes
1. Case of Zhi Jiulong endangering public safety by dangerous means (No. 1314)
The gist of the adjudication: During the period of epidemic prevention and control, the conduct of driving into an unspecified number of people due to dissatisfaction with the need to verify, register, and handle documents for persons and vehicles entering the community should not be assessed as the crime of obstructing public affairs, picking quarrels and provoking trouble, or intentional homicide, but the defendant should be pursued for criminal responsibility for the crime of endangering public safety by dangerous means. and where crimes are committed in response to epidemic prevention and control measures during the period of epidemic prevention and control, heavier punishments shall be given.
2. Case of Fang Yongsheng selling counterfeit and shoddy products (No. 1315)
The gist of the adjudication: The distinction between the crime of selling counterfeit and shoddy products and the crime of fraud should be noted from the following points: (1) Examine whether the transaction is actually completed. The crime of selling counterfeit and shoddy products objectively does indeed have a transaction, which is still a relationship between the sale and purchase of goods in essence, but the quality of the delivered goods does not meet the standards; In the crime of fraud, the perpetrator's purpose is to take direct possession of the other party's property, and there is no real intention to trade. (2) Determine whether there is a large difference between the value of the property actually delivered and the value of the property paid by the other party. In the crime of fraud, there are also situations where the perpetrator actually or partially delivers property, but it may be that the other party is deceived by delivering a small amount of property to gain trust, and then defrauding more property, or the property delivered is far from or even unrelated to the quality or specification of the real product, and the cost is negligible or of little value; In the crime of selling counterfeit and shoddy products, the value of the products delivered by the perpetrator is usually lower than the value of the real and qualified products, but it also contains a certain cost, and the perpetrator seeks the difference between the price of the counterfeit and shoddy products and the real products, rather than to defraud the other party of money. (3) Distinguish and grasp the object of infringement between the two. The object of the crime of fraud is the ownership of public or private property; The object violated by the crime of selling counterfeit and shoddy products is the national product quality management system and market order.
"Three-no products" are not necessarily "fake and shoddy products". Whether the product is qualified or not can sometimes be judged by appearance, common sense or direct verification of the use effect; If it is difficult to determine whether the product is a "substandard product", the product quality inspection agency prescribed by laws and administrative regulations shall be entrusted to conduct an appraisal.
3. Case of Wang Lili and Chen Peng selling fake and shoddy products (No. 1316)
The gist of the adjudication: Some N95 and KN95 masks in the market are subject to the respiratory protective equipment standard GB2626-2006 published by the former State Bureau of Quality Supervision, Inspection and Quarantine and the Standardization Administration of the People's Republic of China, which does not belong to the scope of medical standards. Therefore, only medical protective masks, surgical masks, and medical masks (disposable medical masks) are "medical devices" in the crime of selling medical devices that do not meet the standards. For N95 or KN95 masks, a specific analysis should be made based on the evidence of the case, such as counterfeit N95 or KN95 masks that are indeed medical products in terms of implementation standards, and can be determined to constitute the crime of producing and selling medical devices that do not meet the standards according to the specific circumstances of the case. On the contrary, if it is not clearly marked or marked as a dust mask, it may constitute the crime of producing and selling counterfeit and shoddy products.
4. Case of Bai Shengyu selling goods with counterfeit registered trademarks (No. 1317)
The gist of the adjudication: If the act of selling counterfeit masks simultaneously commits the crime of selling goods with counterfeit registered trademarks, the crime of selling counterfeit and shoddy products, and other crimes, one of the felonies shall be punished. The crime of selling goods with counterfeit registered trademarks is an intentional crime that requires subjective knowledge on the part of the perpetrator. "Knowingly" can be determined not only on the basis of the defendant's explicit confession, but also on the basis of objective facts; In terms of the degree of knowledge, "knowing" includes not only the definite knowledge of the facts, but also the knowledge of a high degree of probability.
5. Shanghai Wanhui Special Industry and Trade Co., Ltd. and Xie Shiquan Illegal Business Operation Case (No. 1318)
The gist of the adjudication: Those who use the epidemic to "raise prices" and meet the standard for prosecution may be investigated for criminal responsibility for the crime of illegal business operation. In practice, "price gouging" is used in a variety of ways, including directly raising prices, raising prices in disguised form such as raising freight rates, tying in the sale of goods, hoarding of goods, and fabricating and disseminating information about price increases.
When judging the guilt or innocence of "price gouging", we can grasp the following aspects: (1) the magnitude of the price increase of goods should be considered; (2) The amount of illegal business operations and the amount of illegal gains shall be considered; (3) The social harmfulness of the act should be comprehensively considered.
6. 倪劲锋诈骗案 (No. 1319)
Gist of the Adjudication: During the period of epidemic prevention and control, where WeChat is used to sell masks to carry out the crime of spreading the net, it shall be severely punished in accordance with law. The reasons are: (1) Telecommunication network fraud has broken through the scope of traditional criminal space, most of them are cross-regional crimes, and the regional characteristics are relatively diluted, so it is not appropriate for all provinces, autonomous regions, and municipalities directly under the Central Government to consider the economic and social development status of their respective regions, but should clarify the specific monetary standards for implementation in their respective regions in accordance with the provisions of the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunications Network Fraud". (2) The determination of the base sentence and the declared sentence shall be strict in accordance with law. (3) The application of suspended sentences should be strictly controlled.
7. Wangjiao Fraud Case (No. 1320)
The gist of the adjudication: It is not appropriate to designate all crimes of fraud through telephone or online contact as crimes of telecommunications network fraud. For fraud crimes committed with the help of telecommunication networks, when there are a large number of victims, it is generally easier to distinguish between telecommunication network fraud and ordinary fraud. When there are few victims, the judgment should be made based on the factors in the case: (1) whether the perpetrator released false information to unspecified persons, including voluntarily publishing it and releasing it to others when asked; (2) Where the perpetrator did not publish false information, whether the crime was committed against an unspecified person; (3) Where the perpetrator uses citizens' personal information in their possession to carry out "precision fraud" through telephone or the Internet, it is necessary to investigate and verify the purpose of obtaining citizens' personal information, as well as the means of obtaining citizens' personal information.
8. Sun Jiaying and Jiang Zhi Fraud Case (No. 1321)
Gist of the Adjudication: Attempted fraud involving the epidemic where the circumstances are serious shall be convicted and punished. There are different sentencing ranges for attempted fraud, and the basic sentencing range shall first be considered for attempted fraud where a huge amount of property is used for the purpose of fraud, or where there are other serious circumstances. Punishments for fraud crimes related to the epidemic shall be severe.
9. Ying Xindi's fraud case (No. 1322)
Gist of the Adjudication: Cases of crimes related to the epidemic that occurred during the period of epidemic prevention and control may be lawfully subject to expedited procedures, and the trial is to be concluded quickly. During the period of epidemic prevention and control, crimes committed by exploiting the epidemic shall be given a heavier punishment.
10. Zhang Zheng fraud case (No. 1323)
Gist of the Adjudication: During the period of epidemic prevention and control, the people's courts are to lawfully apply the expedited procedures for admitting guilt and accepting punishment to quickly conclude cases, highlighting the trial effect of timely punishment and crime prevention. In situations where criminal cases related to the epidemic are tried expeditiously in accordance with law, the defendants' procedural rights should be fully protected, so as to bring about a fair and just trial effect.
11. Chen Gang Obstruction of Public Affairs Case (No. 1324)
The gist of the adjudication: Any coercive force that is sufficient to interfere with or disrupt the normal execution of official activities against personnel performing official duties and their equipment shall be found to be a "violent" method for the crime of obstructing official duties. Where the perpetrator threatens suicide, self-harm, or self-harm, causing mental fear, psychological pressure, or inhibition of free will on public servants, thus putting public servants in a situation where they dare not resist and impacting the normal performance of official activities, it shall be found to be a "threat" in the crime of obstructing public affairs. Where personnel of basic-level autonomous organizations assist the government in measures such as epidemic prevention and control, quarantine, compulsory isolation, or isolation and treatment under the unified deployment of Party committees and governments, they shall be viewed as public servants engaged in the exercise of epidemic prevention and control authority.
12. Huang Chaoyao's case of obstruction of official affairs (No. 1325)
Gist of the Adjudication: During the period of epidemic prevention and control, those who violently resist epidemic prevention and control measures shall be severely punished as the crime of obstructing public affairs.
13. Case of Xie Yibo and Shao Ying Obstructing Public Affairs (No. 1326)
The gist of the adjudication: The "severe punishment" of crimes that impede epidemic prevention and control shall be accurately grasped from the following aspects: (1) Accurately characterize and protect the right to sue in strict accordance with legal provisions; (2) Comprehensively combine the facts of the crime with the need for prevention and control to be severely punished; (3) Comprehensively consider humanized care to ensure that leniency and severity are combined.
14. Wang Fubing's Case of Obstruction of Official Affairs (No. 1327)
Gist of the Adjudication: During the period of epidemic prevention and control, violent attacks on police officers who persuade them to stay at home constitute the crime of obstructing public affairs and shall be given a heavier punishment in accordance with law.
15. Liu Xingxing's Case of Fabricating and Disseminating False Information (No. 1328)
The gist of the adjudication: To determine whether the fabrication or intentional dissemination of false information has seriously disrupted social order, a comprehensive judgment shall be made on the extent of the impact of false information on the orderly state of public life and the general public's life feelings. Specifically, it can be judged from the following aspects: (1) whether the content of false information seriously affects the public's sense of security; (2) whether the time of the publication of the false information occurred during the period of epidemic prevention and control; (3) whether the direct audience of the false information is relatively wide; and (4) whether the spread of false information is under control.
After the publication of false information, even if the relevant functional departments take emergency response measures to prevent the occurrence and development of serious consequences, the relevant functional departments' adoption of emergency response measures may be regarded as one of the criteria for determining serious disruption of social order.
16. Xie Qingmao's Case of Picking Quarrels and Provoking Troubles (No. 1329)
The gist of the adjudication: Those who refuse to cooperate with the work of epidemic prevention and control personnel during the period of epidemic prevention and control, arbitrarily destroy public or private property in order to vent personal dissatisfaction, and cause losses to others' property, shall be pursued for criminal responsibility for the crime of picking quarrels and provoking trouble.
17. Case of Lu Fangsuo and Zhou Kai Picking Quarrels and Provoking Troubles (No. 1330)
The gist of the adjudication: During the period of epidemic prevention and control, those who arbitrarily beat public servants engaged in epidemic prevention and control work in order to act recklessly, show their prestige, or vent their emotions, should be investigated for criminal responsibility for the crime of picking quarrels and provoking trouble.
18. Ye Guoxin gambling case (No. 1331)
Gist of the Adjudication: During the critical period of epidemic prevention and control, those who violate the relevant provisions on epidemic prevention and control and do not engage in public gathering activities to gamble in groups are more harmful to society than gambling in normal times, so they should be severely punished as the crime of gambling.
19. Case of Dereliction of Duty in the Prevention and Control of Infectious Diseases by Li Shanwen (No. 1332)
The gist of the adjudication: The difference between the crime of dereliction of duty in the prevention and treatment of infectious diseases and ordinary work mistakes is that (1) the subjective motive and objective behavior are different, that is, whether the actor conscientiously performed his duties, and whether he could or had foreseen the serious consequences that his behavior might lead to the spread or epidemic of infectious diseases in the course of his due diligence. (2) The premise of accountability is different, that is, whether there is a causal relationship between the perpetrator's violation of duty and the consequences of the spread and epidemic of infectious diseases in criminal law, and the degree of causal force. (3) The policy boundaries are different, that is, when the state has not taken prevention and control measures for disasters such as sudden infectious disease epidemics, the actor makes mistakes in the performance of his duties, which is usually a work error; On the contrary, after taking preventive and control measures, if there are any of the circumstances of "serious circumstances" as provided for in the judicial interpretation, it will be punished as the crime of dereliction of duty in the prevention and control of infectious diseases.
When there are other reasons that led to the spread or epidemic of infectious diseases, and the perpetrator has circumstances that voluntarily surrendered, the criminal policy of blending leniency and severity should be reflected in sentencing.
20. Daniel Zhang's case of obstructing the prevention and control of infectious diseases (No. 1333)
Gist of the Adjudication: During the period of prevention and control of the novel coronavirus pneumonia epidemic, perpetrators who have not yet been confirmed as patients with novel coronavirus pneumonia or who have been declared suspected cases of novel coronavirus pneumonia deliberately conceal the fact that they have a history of contact with people in Wuhan, do not comply with relevant regulations, and do not implement isolation measures to enter public places and public transportation, resulting in the isolation of relevant persons and the closure and control of their residential communities, shall be investigated for criminal responsibility for the crime of obstructing the prevention of infectious diseases.
122 episodes
1. Yu Kunfeng Traffic Accident Case (No. 1334)
The gist of the adjudication: In the review of evidence in cases where the defendant "voluntarily surrendered and admits guilt", the legally-prescribed standard of proof of "the facts are clear, and the evidence is credible and sufficient" shall still be adhered to. Specifically, at the micro level, a comprehensive review and judgment of the evidentiary capacity and probative power of individual evidence is conducted; At the level of case facts, conduct a comprehensive review and judgment of the evidence of the defendant's "various criminal links"; At the macro level, the evidence of the entire case is synthesized, and the entire system of evidence for accusations is comprehensively reviewed and judged from both subjective and objective aspects, positive and negative.
2. Case of Deng Wenjun and Fu Chunxuan producing and selling toxic and harmful food (No. 1335)
The gist of the adjudication: "saliva oil" gathers a large amount of toxic and harmful substances, which are waste edible oils and fats, and can be identified as toxic and harmful non-food raw materials, and the use of "saliva oil" to process food and use it for sale constitutes the crime of producing and selling toxic and harmful food.
3. Case of illegal business operation by Yi Moumou (No. 1336)
The gist of the adjudication: fireworks and firecracker products should not be directly identified as explosives in the sense of the criminal law. If the perpetrator buys and sells fireworks and firecrackers products without obtaining relevant administrative licenses, disrupting market order, and the circumstances are serious, the provisions of Article 225 (4) of the Criminal Law shall be applied, and criminal responsibility shall be pursued for the crime of illegal business operation.
4. Case of Zhou Changbing's acquittal of illegal business operation (No. 1337)
Gist of the Adjudication: In the course of handling criminal cases of illegal business operations, whether the conduct involved in the case is an illegal business operation that seriously disrupts market order shall be evaluated separately, and should not be replaced by "serious circumstances". Where the perpetrator has not obtained a security service permit, but has not committed any substantive illegal or criminal conduct and has not caused serious consequences, it shall not be found to be an illegal business conduct that seriously disrupts market order.
5. Wang Xiumin's intentional homicide case (No. 1338)
The gist of the adjudication: Whether it is a first-instance trial case under the ordinary procedures or a first-instance trial case under the retrial procedure, in the final analysis, it is a first-instance trial case, and where two defendants in the same case are in separate procedures for the above two procedures, there is a procedural basis for combining the cases for trial. Article 386 of the Interpretation of the Criminal Procedure Law stipulates that the punishment of the defendant in the original trial shall not be increased in a retrial, except where the people's procuratorate raises a prosecutorial counter-appeal, and the above-mentioned "no increase in sentence in retrial" applies to situations where the facts of the retrial are the same as those of the original judgment, and the punishment of the defendant in the original trial may be increased when new criminal facts emerge in the retrial.
6. Defendant Liang's rape case (No. 1339)
The gist of the adjudication: Even if the evidence in the case can prove that the perpetrator committed violent or coercive acts, and the perpetrator had sexual relations with the victim, but there is insufficient evidence to prove the causal relationship between the coercive act and the sexual relationship, the crime of rape cannot be established. In addition, rape cases between acquaintances, especially rape cases in which a man and a woman were once lovers or adulterous relationships, should be comprehensively analyzed in light of the relationship between the man and the woman.
7. Case of robbery and robbery by Zhang Mouwen (No. 1340)
Gist of the adjudication: In death penalty cases, the evidence to prove the defendant's name and other facts must be credible and sufficient, and the evidence to prove that the defendant constitutes a recidivist must be credible and sufficient. Where facts such as the defendant's name and whether he constitutes a recidivist are unclear, they shall be remanded for new trial.
8. Pu Changcai Theft Case (No. 1341)
The gist of the adjudication: The imposition of fines for the crime of non-monetary theft shall follow the basic principle of proportionality of criminal responsibility and punishment, and shall comply with the legislative purpose of the establishment of fines and penalties. For simple amount-type theft, a fine of up to 2 times the amount stolen between 1,000 and RMB shall be given; For non-monetary theft, even if there is a clear amount of theft, if the amount stolen is small (the amount does not meet the threshold for committing a crime), a fine of between 1,000 and 100,000 yuan shall be imposed in accordance with the provisions of "there is no amount stolen or the amount stolen cannot be calculated".
9. Huang Yu fraud case (No. 1342)
The gist of the adjudication: The key to judging whether an act is a civil fraud or a crime of fraud is to see whether the perpetrator has the purpose of illegal possession. To determine the crime of fraud, the perpetrator must subjectively have the purpose of illegal possession. Conversely, even if the perpetrator committed fraud when acquiring the property, as long as there is no purpose for illegal possession, he does not repay the debt, and he really intends to repay it, it is still a civil dispute and should not be found to be a crime of fraud. In addition, generally speaking, the act that constitutes the crime of fraud should be an act that cannot be remedied through civil means. Where the deceptive conduct is not serious and does not impact the defrauded person's use of civil channels for relief, it should not be easily found to be a crime of fraud.
10. Wang Jianghao's case of misappropriation of funds (No. 1343)
Gist of the Adjudication: With reference to the provisions of the Criminal Law and relevant judicial interpretations, as well as the Supreme People's Court's establishment of the status of the owners' committee as the subject of civil litigation in relevant approvals and other documents, the owners' committee may be identified as "other units" in the crime of misappropriation of funds. The funds in the account of the owners' committee can also be identified as "the funds of the unit" in the crime of misappropriation of funds.
11. Zhou Lubao extortion case (No. 1344)
The gist of the adjudication: Whether the perpetrator has the purpose of illegal possession is the key to distinguishing between the crime of using information networks to commit extortion and the use of information networks to defend rights. In the specific determination, the following factors need to be comprehensively considered: (1) whether there is a legitimate right, that is, whether the actor has a legal basis for demanding property. and (2) whether it is exercised within the scope of legitimate rights. If the right involved is a claim with a definite content, but the property claimed to be paid by the other party far exceeds the amount of the claim, it does not fall within the scope of legitimate rights; If the rights involved are obligatory rights with uncertain content, or where the right to claim damages is exercised, and the property claim made by the actor is directly related to the creditor's right or the right to claim damages, even if the amount demanded is relatively large, it shall be deemed to be an exercise of legitimate rights. (3) Whether the means of exercising the right are necessary and proportionate, the materiality of the creditor's right itself, the degree to which the means act infringes on the rights and interests of the other party, whether the means act itself is legal, and whether the actor has the possibility of carrying out other acts, etc., are all factors that need to be considered.
12. Zhu Lunjun's Case of Picking Quarrels and Provoking Troubles (No. 1345)
The gist of the adjudication: The act of repeatedly intercepting others to forcibly seize items of lower economic value shall constitute the crime of picking quarrels and provoking trouble. From the perspective of constitutive elements, to determine whether an act constitutes the crime of robbery or the crime of picking quarrels and provoking trouble, we should first examine whether the perpetrator's subjective purpose is to illegally occupy the property of others or to satisfy the deformed physical and psychological needs; Second, it should be judged whether the act objectively mainly infringes on the personal and property rights of citizens, or whether it is a nuisance to others or a disruption of social order. In addition, when distinguishing between crimes and non-crimes, it is also necessary to give full play to the guiding role of the principle of proportionality between crime and punishment, consider the simple and righteous feelings of the general public, and correctly assess the actual harmfulness of criminal acts.
13. Xia Heng Picking Quarrels and Provoking Troubles Case (No. 1346)
The gist of the adjudication: The conduct of driving drunk in the early hours of the morning and chasing another person's motor vehicle, resulting in damage to the vehicle or injury, may constitute a competition between the crime of dangerous driving and the crime of picking quarrels and provoking trouble, the crime of intentional destruction of property, and the crime of intentional injury, and shall be convicted and punished as the crime of picking quarrels and provoking trouble.
14. Case of Xia Yonghua et al. Opening a Casino (No. 1347)
The gist of the adjudication: Where a WeChat gambling group is set up and gambling is carried out by means such as grabbing red envelopes, it may be convicted and punished for the crime of opening a casino. The determination of the "serious circumstances" of using WeChat groups to open casinos may be determined with reference to paragraph 2 of article 1 of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security's "Opinions on Several Issues Concerning the Application of Law in Handling Cases of Online Gambling Crimes".
15. Case of Sai Lihua and Wang Yilong Selling Drugs, Sai Lihua's Illegal Possession of Drugs (No. 1348)
Gist of the Adjudication: "Possession" in the crime of illegal possession of drugs refers to the actual possession, possession, possession or other possession of drugs. Possession is a de facto domination, that is, there is a de facto domination and domination relationship between the perpetrator and the drug. Possession does not require physical possession, does not require the perpetrator to hold the drug in his hand, on his body or in his pocket at all times, as long as the perpetrator is aware of its existence and can manage or dispose of it, it is "possession". The same offence in special voluntary surrender includes offences of the same offence, offences of selective offences, and offences that are closely related de jure and de facto.
16. Case of Yuan Qihu Harboring and Introducing Prostitution (No. 1349)
The gist of the adjudication: The "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Coercing, Inducing, Accommodating, and Brokering Prostitution" determines that the "circumstances are serious" for accommodating or brokering prostitution, mainly considering the number of prostitutes and the particularity of the prostitutes, and also taking the illegal profits as the basis. The determination that the "circumstances of accommodating or brokering prostitution are serious" shall be comprehensively considered in terms of the number of prostitutes, the length of time, and the social impact, and if the number of prostitutes has already been verified, it shall be considered as a sentencing circumstance within the legally-prescribed punishment range.
17. Yan Jiyue's case of introducing prostitution (No. 1350)
The gist of the adjudication: Where the perpetrator introduces others to prostitution online, causing others to conclude a prostitution transaction offline, but does not carry out management or control of prostitution activities, it shall be found to be the crime of procuring prostitution. The perpetrator's use of a QQ group to carry out acts of brokering prostitution not only constitutes the crime of brokering prostitution, but also constitutes the crime of illegally using information networks, and is a joint offense. The determination of "serious circumstances" in the crime of illegal use of information networks may be considered in conjunction with factors such as the specific content, quantity, and scope of diffusion of the information released by the perpetrator, the amount of illegal benefits obtained, the number of victims, and the social impact caused.
18. Liang Shixun's case of selling obscene materials for profit (No. 1351)
Gist of the Adjudication: The sale of online cloud disks containing obscene videos shall determine the number of obscene materials based on the number of obscene video files actually stored in the online cloud disks. However, when handling such cases, the various circumstances of the case shall be fully considered, the harmfulness to society shall be comprehensively assessed, and the sentence shall be appropriately given.
19. Li Qun's bribery case (No. 1352)
The gist of the adjudication: If the actor accepts the renovation of the house of the entrusting unit, and although the entrusting unit does not explicitly exempt him from the renovation money, the criminal responsibility of the perpetrator may be pursued for the crime of accepting bribes based on facts such as the actor's ability to repay, the time of arrears in the decoration payment, the writing off of the renovation money by the entrusting unit, and the fact that the actor sought benefits for the entrusting unit. Where the defendant admits guilt in the first instance and receives a light sentence, and retracts his confession in the second instance, although it shows that there has been a change in the circumstances of his admission of guilt and remorse, the defendant's sentence must not be increased on the basis of the principle of not increasing the sentence on appeal, and in the absence of a prosecutorial counter-appeal raised by the procuratorate.
20. Case of Wang Qiyun and other state organ staff members being defrauded in signing and performing contracts (No. 1353)
The gist of the adjudication: When the crimes of dereliction of duty are competing, the principle that the special law prevails over the common law should be followed. Where a staff member of a state organ does not sign a contract, but accepts an assignment, and is seriously irresponsible and deceived in the course of investigation, verification, negotiation, or other work in the course of investigation, verification, or negotiation in the course of being responsible for signing or performing a contract, it constitutes the crime of dereliction of duty and deception by a state organ functionary in signing or performing a contract.
123 episodes
1. Wu Xuezhan et al., Case of Organizing, Leading, and Participating in Underworld Criminal Organizations (No. 1354)
Gist of the Adjudication: Underworld criminal organizations shall possess four characteristics.
(1) The organizational characteristics of underworld criminal organizations shall meet the following three conditions: (1) the number of members of the organization is relatively large, and although the 2018 Supreme People's Court and the Supreme People's Court and the Supreme People's Court abolished the "10 people" standard, where the number of people is small (such as less than 7 people), the designation of an underworld criminal organization should be particularly cautious; (2) There is a clear hierarchy of organizational members, which are generally divided into three levels, namely organizers, leaders, backbone members and general participants; (3) The criminal organization is stable, that is, the criminal organization has existed for a long time and the main members are fixed.
(2) The characteristics of the conduct of underworld criminal organizations are mainly the use of violent or soft violence to carry out illegal and criminal activities in an organized manner, forming oppression and harm to the public. Among them, soft violence refers to the fact that violence and threats are not obvious, but are actually based on the organization's power, influence, and criminal capacity, and based on the actual possibility of violence and threats, which are enough to cause fear and panic in others, and then form psychological coercion or means sufficient to affect or restrict personal freedom, endanger personal and property safety, or affect normal production, work, and life.
(3) The economic characteristics of an underworld criminal organization refer to the organization's primary criminal purpose is to pursue economic interests. It is also necessary to have a certain economic foundation to support the activities of the organization and to support the members of the organization, which is a necessary condition for carrying out illegal and criminal activities and maintaining the criminal organization.
(4) The harmful characteristics of underworld criminal organizations refer to the fact that, in addition to the targets of the offense and the specific, direct, and specific consequences of the offense, underworld criminal organization crimes also require that they have indirect, unspecific, or abstract targets and consequences of the offense, that is, "in a certain region or industry, forming illegal control or major influence, seriously disrupting the order of economic and social life", and the indirect and unspecified targets and consequences of the violations described above are the unique harmful social consequences and essential characteristics of the underworld criminal organizations.
(5) Of the four characteristics described above, the harmful characteristics are the essential characteristics of underworld criminal organizations, and the harmful characteristics should be the core of the substantive judgment, and criminal organizations with very typical harmful characteristics, and other characteristics that are not very typical, such as relatively small numbers, relatively short durations, not very clear hierarchies, and small amounts of economic benefits obtained, may also be designated as underworld criminal organizations.
2. Case of Xie Pei et al. Organizing, Leading, and Participating in an Underworld Criminal Organization (No. 1355)
The gist of the adjudication: Determining that a criminal organization is an underworld criminal organization means that it ultimately possesses the above four characteristics, but it cannot be required that it has fully possessed the four characteristics at the beginning of its formation. When screening and determining landmark incidents of underworld criminal organizations, at least the following three aspects shall be analyzed:
(1) The incident is generally a fact or other major incident of a violation or crime that the organization or leader personally organized or directly participated in committing;
(2) The incident has an obvious effect on the further development and expansion of the criminal organization involved in the case, or the initial formation of an illegal impact in a certain region or industry, and objectively lays a foundation for the organization to carry out subsequent illegal and criminal activities;
(3) Landmark events generally precede or are themselves the first organized crime.
3. Case of Gong Pinwen et al. Organizing, Leading, and Participating in Underworld Criminal Organizations (No. 1356)
Gist of the adjudication: In judicial practice, the grasp of the intensity of "soft violence" carried out by underworld criminal organizations should be based on whether the relevant conduct is sufficient to cause substantial psychological coercion on the masses, and specifically can be grasped from the following aspects:
(1) "Soft violence" carried out by underworld criminal organizations should be of a long-term nature;
(2) "Soft violence" carried out by underworld criminal organizations should generally be diverse;
(3) "soft violence" carried out by underworld criminal organizations should reflect obvious organizational characteristics;
(4) "Soft violence" carried out by underworld criminal organizations should have conduct that can directly constitute a crime and cause obvious harmful consequences.
4. Case of Fang Yue et al. Organizing, Leading, and Participating in an Underworld Criminal Organization (No. 1357)
The gist of the adjudication: For the designation of underworld criminal organizations involved in "routine lending" under the cloak of a "legitimate company", the "organizational characteristics" should be grasped from the control of the organization's members, the "economic characteristics" should be grasped from the purpose of the company's existence, the "behavioral characteristics" should be grasped from the main means of violating the law and committing crimes, and the "harmful characteristics" should be grasped from the scale and influence of the company.
5. Case of Huang Tuwang et al. Organizing, Leading, and Participating in Underworld Criminal Organizations (No. 1358)
Gist of the Adjudication: Whether conduct seeking illegal benefits through the power of an underworld criminal organization can be assessed as participation in an underworld criminal organization should be analyzed primarily from the constituent elements and behavioral characteristics of participation in an underworld criminal organization. The subjective and objective requirements for participation in underworld criminal organizations are that they know or should know that the organization has the basic content of their activities as the commission of violations or crimes, and still join and accept their leadership and management.
Those who participate in underworld criminal organizations and have any of the following three circumstances shall generally be found to be "actively participating in underworld criminal organizations": 1. actively participating in the illegal or criminal activities of underworld criminal organizations multiple times; Second, they actively participated in relatively serious underworld organized crimes, and their role was prominent. Among them, "relatively serious underworld criminal organization crimes" includes both violent crimes of a serious nature such as intentional homicide and intentional injury, as well as other serious crimes that cause major property losses or a heinous social impact. The term "prominent role" should be understood as a prominent and decisive role in the formation of criminal intent, the completion of joint criminal acts, and the occurrence of harmful results. The third is members who play an important role in underworld criminal organizations, that is, members who have "primary management authority" over important matters such as the personnel, property, and affairs of the entire underworld criminal organization, and who truly play an important role in the maintenance, operation, and activities of the criminal organization.
6. Case of Zhang Liqi harboring and conniving at underworld criminal organizations (No. 1359)
Gist of the Adjudication: Where the commencement and ending acts of a serial offender span before and after the revision of the Criminal Law, in accordance with the spirit of the "Reply of the Supreme People's Procuratorate on <刑法>How to Specifically Apply the Criminal Law to Continuing Crimes, Consecutive Crimes, and Other Crimes of the Same Kind that Exceed the Effective Date of the Revision", punishment shall be given in accordance with the provisions of the amended Criminal Law, and the statute of limitations for prosecution shall also be calculated in accordance with the sentencing standards provided for in the revised Criminal Law.
The crime of harboring or abetting an underworld criminal organization requires that the perpetrator subjectively have criminal intent, but the criminal intent of this crime does not require the perpetrator to clearly understand that the object of his harboring or connivance is an underworld criminal organization, as long as the perpetrator knows or should know that it is an organization engaged in illegal or criminal activities. When determining the perpetrator's subjective knowledge, the actor's degree of understanding of the form, scale, members, and conduct of the object of the harbor or connivance should be comprehensively considered, as well as the degree of closeness to the organization's members.
7. Wu Qiang et al., Case of Extortion, Robbery, Drug Trafficking, and Intentional Injury (No. 1360)
The gist of the adjudication: The key to distinguishing between malign forces crime groups and ordinary crime groups is that, first, because malign forces and malign forces crime groups have the intention of "forming illegal influence and seeking a strong position", the harm caused by their illegal and criminal activities is often complex, not only infringing on citizens' personal rights and property rights, but also undermining the order of market economy or social management; Second, because malign forces and malign force criminal groups have varying degrees of intent to "form illegal influence and seek a strong position" and need to "cause a relatively heinous social impact in a certain region or industry", the illegal and criminal activities they carry out must have a certain degree of openness; Third, the illegal and criminal activities carried out by malign forces and malign force criminal groups inevitably have the characteristics of "doing evil and oppressing the people" and are of the nature of bullying, coercion, and oppression. If the perpetrator carries out illegal or criminal activities clearly only for the purpose of obtaining illegal economic benefits, lacks the intent to "form an illegal influence or seek a strong position", and does not have the characteristics of "doing evil or oppressing the people", it cannot be found to be a crime committed by malign forces.
8. Case of Zhou Fangjian et al. Gathering Crowds to Fight, Picking Quarrels and Provoking Trouble, and Opening Casinos (No. 1361)
Gist of the adjudication: Malign forces have the following legal characteristics: first, persons who jointly carry out criminal activities have a certain degree of stability; second, the use of violence, threats, or "soft violence" to carry out illegal and criminal activities; Third, carrying out illegal and criminal activities in a certain area or industry many times, doing evil and oppressing the people; Fourth, it has the transitional characteristics of developing into an underworld criminal organization, that is, through illegal and criminal activities, it has already formed a confrontation with the normal economic and social management order, and has caused a relatively bad social impact in a certain region or industry.
9. Case of illegal detention, extortion, and fraud by Chen Yingang et al. (No. 1362)
Gist of the Adjudication: "Routine lending" refers to a general term for illegal and criminal activities related to inducing or coercing victims to sign "loans" or disguised "loans", "mortgages", "guarantees" and other related agreements for the purpose of illegal possession, under the guise of private lending, forming false claims and debts through methods such as inflating the amount of loans, maliciously creating defaults, arbitrarily determining breach of contract, and destroying evidence of repayment, and illegally taking possession of the victims' property with the help of litigation, arbitration, notarization, or the use of violence, threats, or other means.
The subjective purpose of the perpetrator of the crime of "fraudulent lending" is to illegally occupy the property of the victim or his close relatives, and shall generally be convicted and punished as a crime of embezzlement of property. The victim's property that the perpetrator illegally possesses for false reasons such as "security deposits", "intermediary fees", or "liquidated damages" shall be included in the full amount of the crime. If the perpetrator uses violent means such as beating or illegal detention, or uses violence or coercion against the victim or his close relatives in the course of collecting debts, and meets the constitutive elements of the crime of unlawful detention, extortion, or robbery, it shall be convicted and punished in accordance with relevant provisions. Where the criminal conduct of "fraudulent loans" simultaneously constitutes multiple crimes such as fraud, illegal detention, extortion, robbery, etc., the punishment for multiple crimes is to be combined or one of the heavier punishments is to be given in accordance with the provisions of the Criminal Law and relevant judicial interpretations.
Where the perpetrator carries out false litigation conduct and illegally takes possession of others' property, and the crime of fraud is constituted, it shall be convicted and punished in accordance with the provisions for the heavier punishment.
10. Zhang Fengjiang et al. 14 Fraud Case (No. 1363)
The gist of the adjudication: When determining the amount of the crime of "routine lending", it shall be distinguished from private lending, and a negative assessment shall be given as a whole, and "inflated debts" and property illegally taken by the perpetrator in the name of "interest", "security deposit", "intermediary fee", "service fee", "liquidated damages", and so forth, should be included in the amount of the crime, and the amount of principal actually paid by the perpetrator is not included in the amount of the crime.
However, if the defendant does not confess a specific amount, and the victim claims that the amount of money defrauded is reasonable, and it is within the reasonable range of the inflated amount of IOUs and bank statements, it may be determined according to the amount defrauded in the victim's statement.
Where the victim is unable to repay the loan after being demanded, and the perpetrator "settles" the debt to another gang, and the other gang actually pays the money to the perpetrator, the amount of the fraud is to be determined in accordance with the "balance of the account - the principal of the loan".
Where the perpetrator sets out to carry out the fraud of "fraudulent loans", but fails to succeed due to reasons other than will, the amount of the attempted crime shall be determined to be "the amount of the inflated IOU (or the amount of the lawsuit) - the amount of the principal amount of the loan".
124 episodes
1. Wang Qingzhang Traffic Accident Case (No. 1364)
The gist of the adjudication: The perpetrator stayed at the scene after the traffic accident and had the ability to perform the obligation and ability to rescue, but did not rescue the victim, which is a "escape" after the traffic accident. Where the victim's second accident occurs and the victim dies as a result of his failure to help, it shall be found to be "death caused by escape" in the crime of causing a traffic accident.
2. Jiang Bin, Yu Zhiling, and Chen Hao Insurance Fraud and Fraud Case (No. 1365)
Gist of the adjudication: The crime of insurance fraud is a type of fraud, and the two belong to the relationship of competing legal provisions, and the principle of special law prevailing over general law should generally be followed. Where the perpetrator provides the judicial organs with the contact information and hiding addresses of other co-defendants that they have learned after committing the crime, it has gone beyond the scope of "truthfully confessing their own crimes". If the perpetrator leads the investigators to the co-defendant's rented residence after the crime and makes an on-site identification, and his act of assisting in the arrest has already been completed, even if he or she was unable to capture the co-defendant at the scene for objective reasons, the investigators did not devote any more time and energy to arresting the co-defendant thereafter, so the perpetrator's act of assisting in the arrest has already saved judicial resources and is in line with the essence of the meritorious service system, and should be considered to have made meritorious service.
3. Li Ersheng's intentional homicide case (No. 1366)
Gist of the adjudication: In cases where the defendant retracts his confession and lacks objective evidence, the following two aspects should be considered when reviewing the evidence:
(1) Review and judge whether the defendant's confession of guilt is true and credible, whether the reasons for retracting the confession are reasonable, and whether the exclusion of illegal evidence is applicable.
(2) Review whether other circumstantial evidence can corroborate with the defendant's confession of guilt, form a complete chain of evidence, and eliminate reasonable doubt. Depending on the type of case, the defendant's confession of guilt may be compared and reviewed with other verbal evidence, physical and documentary evidence, evidence such as autopsy opinions, photographs of the body, and on-site inquest records, to see if there are contradictions and whether reasonable explanations can be made for these contradictions, and then to determine whether the evidence in the case can be "eliminated from all reasonable doubts".
4. Zhu Xiaodong's intentional homicide case (No. 1367)
The gist of the adjudication: Although the defendant denies premeditating murder, but he himself has a motive for premeditating murder, and there is evidence to prove that he made relevant preparations for the crime before the crime, and did not show shock, panic, remorse, guilt, or positive remedial conduct after committing the criminal act, but instead carried out acts such as transferring property and having fun, and the defendant cannot give a reasonable explanation for this, it may be found that he was premeditated murder.
In practice, in cases of intentional homicide caused by the intensification of civil conflicts such as marriage and family, the death penalty is applied with great caution, and where the defendant has both lenient and severe circumstances, a final decision on whether to apply the death penalty to the defendant should be comprehensively considered in all aspects of the circumstances, such as: whether the defendant was a premeditated murderer, whether the victim was at fault, whether the defendant committed a heinous act after committing the crime that would represent that he did not show remorse, the background and value of the defendant's voluntary surrender, the victim's petition, and so forth.
5. Yu Zhengxi's Intentional Injury Case (No. 1368)
Gist of the Adjudication: Victim fault in the sense of the Criminal Law refers to the victim's carrying out wrong or improper conduct out of subjective fault, and the conduct violates the law, social public order, good customs, ethical norms, etc., infringes upon the defendant's lawful rights and interests or other legitimate interests, and objectively stimulates the occurrence of criminal conduct. In practice, the following conditions should be met for a victim to be found to be at fault in the sense of criminal law:
(1) The perpetrator of the wrongful act is the victim;
(2) The victim's conduct violates the provisions of the law, or violates social public order, good customs, and ethical norms, and shall be negatively evaluated by society, and at the same time, such reprehensibility should reach a certain degree, and minor fault is not the victim's fault in the sense of the criminal law.
(3) the victim is subjectively at fault;
(4) There is a correlation between the wrongdoing and the occurrence of the criminal act.
6. Case of intentional injury by Gao XX (No. 1369)
Gist of the Adjudication: The provisions of the Criminal Law Amendment (IX) that the death penalty can only be carried out if the circumstances of intentional crimes committed during the period of suspension of the death penalty are "heinous", shall be applied to convicts with a suspended death sentence who have already been sentenced and taken effect before the implementation of the amendment. The determination of "heinous circumstances" of intentional crimes during the period of suspension of the death penalty shall be comprehensively judged on the basis of the circumstances of the crime, such as the motive, methods, and harmful consequences caused by the intentional crime, as well as the convict's reform and expressions of remorse during the period of suspension of execution. Where a decision is made not to carry out the death penalty for intentional crimes committed during a period of suspension of the death penalty, it is not necessary to go through the review procedures of the High People's Court; Where a decision is made to carry out the death penalty, it needs to be approved by the Supreme People's Court.
7. Yue Defen Theft Case (No. 1370)
Gist of the Adjudication: The "two judgments before and after" in Article 70 of the Criminal Law on the combined punishment of multiple crimes refer to the judgment of the previous crime and the judgment of omission, excluding the commutation ruling. The sentence that has been reduced by a commutation ruling and the sentence that has been served after the life imprisonment sentence has been commuted to fixed-term imprisonment is an issue of enforcement of criminal punishments, and although it cannot be reflected in the new judgment after the omission of the crime and the combined punishment, it may be considered in the course of the enforcement of the new judgment. When a people's court combines the punishment of the previous crime with the omission of the crime and makes a new judgment, it is not necessary to revoke the original commutation ruling.
8. Zhu Gangchun and Li Junle Fraud Case (No. 1371)
The gist of the adjudication: The actor clearly knows that the debtor's loan has been fully repaid and the legal relationship of creditor's rights and debts between the two parties has been extinguished, but still deliberately fabricates facts and sues the borrower and the guarantor to repay the principal and interest again, which is a "unilateral fraud" false litigation act as referred to in the criminal law theory, and this act can constitute the crime of fraud in accordance with law. Where "unilateral fraudulent" false litigation occurred before the implementation of the Criminal Law Amendment (9) and has not yet been dealt with on the date of implementation of the Criminal Law Amendment (9), the provisions of the Criminal Law before the amendment shall be applied and convicted and punished as the crime of fraud.
9. Gold Medal Fraud Case (No. 1372)
Gist of the adjudication: In judicial practice, the accurate distinction between the crime of fraud and civil fraud should generally be divided from three aspects: the content of the deception, the degree of deception, and the result of the deception:
The first is deceptive content. Civil fraud is the deception of individual facts or partial facts, while fraud crimes are the deception of whole facts or all facts.
The second is the degree of deception. If the deceptive means used by the perpetrator reach the level of causing others to misunderstand and dispose of property, it constitutes the crime of fraud; If, although the perpetrator uses deception, it does not go so far as to cause another person to deliver the property without consideration, it may only constitute civil fraud.
Finally, there is the result of deception, which can also be subjectively understood as the purpose of unlawful possession. In civil fraud, the parties also subjectively have the purpose of seeking improper benefits, but such interests are realized through civil acts, such as the performance of a contract; The crime of fraud is for the purpose of illegal possession, and what the perpetrator seeks is not the consideration and benefit of the civil act, but the property of the other party, even if the actor has an apparent performance of the contract, it is only an act of covering up people's eyes or confusing the other party, and the criminal cost is paid for the smooth implementation of the crime.
10. 阚莹诈骗案 (No. 1373)
Gist of the Adjudication: The determination of the amount of fraud shall consider the actual property losses of the victim. In judicial practice, in order to successfully carry out the fraud, the perpetrator needs a certain amount of investment. If the investment is made to a third party other than the victim, it should not be deducted from the amount of the crime because it does not make up for the victim's loss; If the investment is directly made to the victim, it will be deducted from the amount of the crime under certain circumstances, taking into account that it has made up for the damaged legal relationship. Specifically, that is, property returned by the perpetrator to the victim before the crime occurred, as well as property that the perpetrator delivered or paid to the victim in the course of fraud that has the possibility of being used, may be deducted from the amount of the crime.
11. Case of Dai Ying and Kuai Jun Picking Quarrels and Provoking Troubles (No. 1374)
The gist of the adjudication: Whether it is in accordance with the relevant provisions of the Constitution or the Criminal Law, the degree of unlawful restriction of personal liberty and unlawful deprivation of personal liberty is different, and only the act of unlawful deprivation of personal liberty constitutes the crime of unlawful detention. Acts of petty violence while eating, living, or following the same to collect debts do not constitute the crime of unlawful detention, and where the crime of picking quarrels and provoking troubles is met, the perpetrator may be pursued for criminal responsibility.
12. Case of Hu Qunguang obstructing testimony and Wang Rongyan helping to fabricate evidence (No. 1375)
The gist of the adjudication: "partial tampering" litigation is different from the "creating out of nothing" behavior of fabricating civil legal relations out of thin air, fabricating civil disputes, and filing civil lawsuits in the people's courts when there is no civil legal relationship. "Partial tampering" conduct does not constitute the crime of false litigation, but where the perpetrator has conduct such as obstructing testimony or fabricating evidence before or during the course of civil litigation, it may be constituted separately and accordingly to the crime of obstructing testimony and aiding in the fabrication of evidence.
13. Gao Yun's false lawsuit (No. 1376)
The gist of the adjudication: In the course of trying a criminal case of false litigation, whether the conduct carried out by the actor is a fabrication of a civil legal relationship or a fictitious civil dispute shall be substantively judged in light of the theory of civil procedure and the specific circumstances of the case, and where there is indeed a civil legal relationship or civil dispute between the actor and others, and only the nature of the civil legal relationship is tampered with, it is not appropriate to simply find that it is a fabrication of a civil legal relationship, and then it is to be punished as the crime of false litigation. In civil ordinary joint litigation cases, the conduct of different plaintiffs shall be distinguished and separately evaluated as to whether a certain act constitutes the crime of false litigation.
14. Hu Wenxin and Li Weijun's False Lawsuit (No. 1377)
The gist of the adjudication: After obtaining an arbitration and mediation document based on fabricated facts, and then applying to the people's court for enforcement of the arbitration and mediation document, it is "initiating a civil lawsuit" in the crime of false litigation, and may constitute the crime of false litigation.
15. Jiashan Win-Win Bearing Factory v. Shan Guoqiang False Litigation Case (No. 1378)
Gist of the Adjudication: In cases of false litigation crimes, the victim initiating a private criminal prosecution shall meet the following three conditions at the same time:
First, one's personal and property rights have been violated by the criminal act of false litigation, which is the main condition for initiating a criminal private prosecution.
Second, there is evidence to prove that the defendant's violation of his personal and property rights through false litigation should be pursued for criminal responsibility in accordance with law, which is an evidentiary condition for initiating a criminal private prosecution.
Third, there is evidence showing that the victim has accused the defendant of committing the crime of false litigation to the public security organ or people's procuratorate, but the public security organ or people's procuratorate does not pursue the defendant's criminal responsibility, which is a procedural condition for initiating a criminal private prosecution.
16. Wan Chunlu's false lawsuit (No. 1379)
The gist of the adjudication: "Fabricating facts" in the crime of false litigation includes two types of conduct: fabricating facts and concealing the truth, and the act of fabricating facts and initiating a civil lawsuit by concealing the truth may constitute the crime of false litigation. The crime of false litigation is a consequential crime, and the standard for completion is that the act causes the predetermined consequences of the constituent elements of the crime. The legal interests protected by the crime of false litigation are compound legal interests, and the conduct causes one of the consequences of "obstructing judicial order" or "seriously infringing on the lawful rights and interests of others", which can constitute the completion of this crime, and "judicial order" here refers to the normal judicial activities of the people's courts after accepting a civil case, and in practice it is mainly manifested in two aspects: the actor initiates a false civil lawsuit and causes the judicial organ to make an erroneous judgment, or occupies a large amount of judicial resources and affects normal judicial activities.
17. Zhang Chongguang and Zhang Chongrong's False Litigation Case (No. 1380)
The gist of the adjudication: Where the perpetrator commits false litigation before the Criminal Law Amendment (9) takes effect, and is transferred for trial after the Criminal Law Amendment (9) takes effect, the principle of treating the old with leniency shall be applied to accurately select the crime to be applied. Specifically, before the Ninth Amendment to the Criminal Law came into effect, if the conduct of false litigation was accompanied by acts such as obstructing testimony or aiding in the fabrication of evidence, it could correspondingly constitute the crime of obstructing testimony and aiding in the fabrication of evidence. However, where the defendant is given a lighter sentence based on the crime of false litigation, his criminal responsibility is to be pursued for the crime of false litigation, and the term "lighter sentence" here refers to the lighter statutory sentence provided for in the Criminal Law, not the lesser sentence that the defendant may actually be sentenced.
18. Zhang Weimin's False Lawsuit (No. 1381)
The gist of the adjudication: The determination of "serious circumstances" in the crime of false litigation shall adhere to the principles of unifying subjectivity and objectivity, with objective harmful consequences as the main basis, and shall adhere to the principle of modesty, and shall adhere to the principle of systematic interpretation. After the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of False Litigation" takes effect, the standard for the crime of false litigation as "serious circumstances" is sufficient to be determined directly in accordance with article 3 of the interpretation.
19. Hou Chunying's illegal practice of medicine (No. 1382)
The gist of the adjudication: The defendant did not obtain the qualification to practice as a doctor, and independently engaged in medical activities for a long time with the acquiescence of the person in charge of the clinic, resulting in the death of one person, and his conduct constituted the crime of illegal practice of medicine, but not the crime of medical malpractice.
20. Case of Xie Jingfang's Illegal Sale of Rare and Endangered Wild Animals (No. 1383)
The gist of the adjudication: When deciding whether to pursue criminal responsibility and how to determine the punishment for conduct that destroys artificially bred wildlife resources, the facts and evidence of the case shall be combined, and circumstances such as the degree of endangerment, the wild population, the artificial breeding situation, the use, the means of conduct, and the degree of damage to wildlife resources shall be comprehensively assessed, and appropriate dispositions shall be made in accordance with law, ensuring that the crime and punishment are commensurate.
21. Case of Sun Dezhu Selling Drugs and Accommodating Others to Take Drugs (No. 1384)
The gist of the adjudication: The perpetrator's act of allowing others to take drugs in his own home constitutes the crime of accommodating others to take drugs, and the act of providing drugs to drug users and collecting drug fees in a place where others are allowed to take drugs constitutes the crime of drug trafficking.
22. Qi Xianhe's case of trafficking and transporting drugs (No. 1385)
The gist of the adjudication: There is a distinction between broad and narrow senses for drug purchasing, and drug purchasing in the narrow sense refers to the perpetrator being entrusted by a drug addict to purchase drugs for drug addicts only for use without compensation. Drug purchasing in a broad sense includes drug purchasing in a narrow sense, as well as purchasing drugs on behalf of others knowing that they have committed criminal acts, as well as introducing drug sales. Where the perpetrator and the drug purchaser lack the intent to commit a joint crime, are detached from the nature of intermediary introduction, and substantively participate in the drug transaction, and become independent, they shall be found to be the perpetrator of the drug crime, not an accomplice.
23. Wang Huaizhen's case of accommodating prostitution (No. 1386)
The gist of the adjudication: Article 8, paragraph 1, item (4) of the "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Coercing, Inducing, and Harboring Prostitution" stipulates that "having been administratively punished for enticing, sheltering, or brokering prostitution within one year, and then carrying out acts of harboring or brokering prostitution" is the criterion for the crime of harboring or brokering prostitution. In the first half of the above-mentioned provisions, the "acts of prostitution" in the "acts of enticing, sheltering, or brokering prostitution" include both acts of prostitution under the Law on Public Security Administration Penalties and acts of prostitution in the sense of the Criminal Law; The "act of prostitution" in the second half of the paragraph "acts of sheltering and procuring prostitution" refers only to acts of prostitution in the sense of the criminal law. The above provisions do not apply to those sentenced to criminal punishment for enticing, sheltering, or brokering prostitution within one year. The starting point of "within one year" as used in the Interpretation should be the time when the act occurred, not the time of the administrative punishment.
Volume 125 (changed from "set" to "series" from 125)
1. Jiangsu Arctic Haotian Technology Co., Ltd. and Yang Jiaye fraudulent issuance of bonds (No. 1387)
Gist of the Adjudication: In essence, private placement bonds conform to the basic characteristics of corporate bonds that are "issued in accordance with legal procedures and agreed to repay principal and interest within a certain period of time", so they should be subject to the regulation of the crime of fraudulent issuance of bonds.
The subject of the crime of fraudulent issuance of bonds is a special entity, specifically referring to natural persons and units that issue corporate and enterprise bonds. The object violated by the crime of fraudulent issuance of bonds is the state's management system for the bond issuance market and the legitimate rights and interests of investors. The offence of fraudulent issuance of bonds must be intentional in the subjective aspect, and negligence does not constitute this offence. The crime of fraudulent issuance of bonds is objectively manifested in the conduct of concealing important facts or fabricating material false content in the measures for raising corporate or enterprise bonds, and fraudulently obtaining the issuance by deceptive means, with huge amounts, serious consequences, or other serious circumstances. Of these, the amount actually raised by the perpetrator shall be used as the amount issued for this crime for conviction and sentencing.
(Note: The crime of fraudulent issuance of stocks and bonds as stipulated in Article 160 of the Criminal Law has been amended by the Amendment (11) to the Criminal Law, and has now been changed to the crime of fraudulent issuance of securities)
2. Case of Breach of Trust and Use of Entrusted Property by Dalian Business Department of Industrial Securities Futures (No. 1388)
The gist of the adjudication: The determination of a unit's crime should be determined in conjunction with the unit's conduct and will, including whether the specific actor's conduct involved in the case obeyed the unit's will, whether the conduct involved in the case will obtain benefits for the unit, such as whether the benefits obtained are ultimately enjoyed by the unit.
In practice, the following aspects can be distinguished: first, the subject is different, if the act of misappropriation of client funds is carried out by relevant personnel in accordance with the instructions of the leadership, in the name of the unit, and for the benefit of the unit, it should be punished as the crime of using entrusted property in breach of trust, depending on the circumstances; On the other hand, if the act is the act of an individual employee of a financial institution, it shall be punished as the crime of misappropriation of funds or the crime of embezzlement of public funds, depending on the circumstances. Second, the funds directed by misappropriation of funds, public funds, etc., are owned by the company or the state, and the funds directed by the act of using entrusted property in breach of trust belong to the customer, so after signing an entrustment contract in the name of a financial institution, if the staff member uses the entrusted property in the name of the unit in breach of trust, and the illegal gains belong to the unit, the financial institution shall also bear the corresponding criminal liability.
3. Pan An Credit Card Fraud Case (No. 1389)
The gist of the adjudication: The perpetrator used a credit card that others had forgotten in the ATM machine and had entered the password to withdraw money, which is a fraudulent method of using another person's credit card to withdraw cash, and the act violated the dual object, that is, the property ownership of others and the order of credit card management, and should be found to be the crime of credit card fraud.
4. Liu Deming's Intentional Homicide Case (No. 1390)
Gist of the adjudication: In the case of the "four noes", due to the relatively weak system of evidence for the accusation, the people's court should take the defendant's confession as the main line at trial, attach importance to the confession but not be credulous, dig deep into the details of the evidence, and eliminate reasonable doubt one by one in accordance with common sense and rules of thumb, and strengthen the adjudication of evidence. At the same time, through longitudinal comparison of the defendant's multiple confessions, horizontal comparison of the confession with other evidence, and comprehensive judgment of the evidence in the case, the foundation for the determination of facts can be gradually consolidated, and a model for the formation of inner conviction based on objective evidence may be established in the "four noes" cases, and the only conclusion that the defendant has committed a crime may be finally reached.
5. Li Fang's Intentional Injury Case (No. 1391)
Gist of the Adjudication: The investigating organs may, in accordance with their authority, entrust an appraisal agency to conduct an appraisal on the issue of medical fault, and the medical fault appraisal opinion may be used as one of the bases for judging the defendant's criminal responsibility. Where people's courts reviewing appraisal opinions should pay attention to both substantive and procedural reviews, the procedures for entrusting medical fault evaluations are lawful, and although the injured party did not participate in the appraisal process, it does not impact the objectivity and fairness of the appraisal conclusions, and the injured party has no objections in court, the appraisal opinion may be accepted.
6. Zhu Jiguo's theft case (No. 1392)
The gist of the adjudication: In cases of "zero confession", on the basis of reviewing the objectivity, relevance, and legality of the evidence in the case, emphasis should be placed on reviewing whether the process of solving the case was objective and natural; whether the objective evidence is clear and single; Whether the defendant's confession or plea of not guilty is reasonable.
When using circumstantial evidence to construct an evidence system, emphasis should be placed on examining whether the circumstantial evidence can corroborate each other and whether there are contradictions or doubts that cannot be eliminated. After the relevant circumstantial evidence has been verified to be true, corroborated by each other, and a complete chain of evidence has been formed, the people's court should use the presumption of facts as a medium and use logical reasoning and empirical rules to retrospectively reproduce the facts of the case by linking the indirect evidence in the case, and reach a only positive conclusion.
7. Chen Huazeng, Liang Jinzai, and Lin Dongming Theft Case (No. 1393)
The gist of the adjudication: The medical insurance card loaded with financial functions is issued by the social security department, and the medical insurance account and the financial account are independent of each other, so the social security card cannot be simply equated with a credit card. The funds in the personal account of medical insurance belong to the individual, and the theft of funds in the personal account of medical insurance is the secret theft of other people's property, which shall constitute the crime of theft.
8. Zeng Qichang's case of misappropriation of funds (No. 1394)
Gist of the adjudication: In the crime of misappropriation of funds, since the "relatively large amount" is in the two sentencing levels, the conclusion reached according to the same interpretation will lead to the incommensurate punishment and is contrary to the original intent of the "Interpretation on Corruption and Bribery". Therefore, even if the "relatively large amount" appears in the same article of the same crime, it should be interpreted differently. Among them, the "relatively large amount" in the first sentencing file for the crime of misappropriation of funds should be based on 100,000 yuan, and the "relatively large amount" in the second sentencing file "the amount is relatively large and not returned" should be 2 million yuan as the standard.
9. Liang Jinhui Picking Quarrels and Provoking Troubles (No. 1395)
The gist of the adjudication: The defendant drove away with a knife against a person who was illegally demolishing his lawful property, and caused a slight injury to one person, which does not constitute the crime of picking quarrels and provoking trouble, but shall be found to be legitimate defense.
10. Yang Jianrong, Yan Aiying, and Jiang Xuefu Refusal to Enforce Judgments and Rulings (No. 1396)
The gist of the adjudication: Transferring or concealing assets before the civil judgment is determined in order to evade enforcement, and such conduct continues after the civil judgment takes effect, is an act of refusal to enforce the judgment or ruling during the enforcement phase, and should be punished as the crime of refusing to enforce the judgment or ruling.
11. Case of Liu Chunjun's Illegal Acquisition of Rare and Endangered Wild Animals (No. 1397)
The gist of the adjudication: Precious wild animals and endangered wild animals are identified as the same species from different aspects, and there is no distinction, so the crime of illegally acquiring rare and endangered wild animals is not a selective crime. The main purpose of the legislation is to tighten the legal net and show the scope and clear attitude of the state to give priority protection to wild animals. The dead bodies of rare or endangered wildlife shall be designated as rare or endangered wildlife.
With regard to misunderstandings of illegality, first of all, from the perspective of criminal law, the "presumption of knowledge of the law" should be adhered to, supplemented by exceptional circumstances, to prevent perpetrators from arbitrarily shirking responsibility on the grounds of ignorance of the law. Second, in terms of the scope of understanding, it should be lenient rather than strict, and generally does not require the perpetrator to have a clear and specific understanding of illegality, as long as the actor knows or should know that the act he has carried out is unlawful, it should be found that he has an awareness of illegality. Finally, in terms of the burden of proof, the error of illegality is a defensive ground, and the defendant should provide evidence to prove that he lacks a realistic understanding of illegality, and that his misunderstanding of illegality is unavoidable.
12. Case of Zhao Shishan, Wang Haijie, and Yang Jianbo Illegally Occupying Agricultural Land (No. 1398)
The gist of the adjudication: Villagers' committees may become the subject of crimes committed by units, but in specific cases, not only criminal acts committed in the name of villagers' committees constitute crimes committed by units, but a judgment should be made in a substantive sense, that is, crimes committed by units should reflect the will of the unit, be carried out in the name of the villagers' committees, and the unlawful gains should be owned by all villagers or village collectives; Otherwise, the criminal responsibility of individuals shall still be pursued separately for crimes committed by natural persons.
Acts of law and order are acts that are permitted or even encouraged by the law itself and form part of the legal order, so they have the deterrent nature of violating the law. However, the implementation of legal acts shall be carried out in accordance with the provisions of the law and the legal procedures shall be carried out in order to prevent the crime.
13. Zhao Qiang's bribery case (No. 1399)
Gist of the Adjudication: "Property" in the crime of bribery includes money, goods and property interests. Property interests include material benefits that can be converted into money, such as house decoration, debt forgiveness, etc., as well as other benefits that need to be paid in currency, such as membership services and tourism, and the amount of bribery is calculated based on the amount actually paid or should be paid.
14. Yang Yucheng bribery case (No. 1400)
The gist of the adjudication: the price determination agency does not have the qualification to identify the authenticity of calligraphy and painting; The appraisal of calligraphy and painting involved in cases of crimes abusing public office may refer to the appraisal process for criminal cases of cultural relics crimes; Appraisal opinions on calligraphy and painting that have not been signed by the appraiser should not be accepted.
15. Case of Lin Cai privately dividing state-owned assets (No. 1401)
The gist of the adjudication: In the process of restructuring a state-owned enterprise, the act of concealing the company's assets and transferring them into the ownership of the restructured company by itself and some of its employees should be differentiated and characterized according to the equity of the restructured company. Intangible assets such as taxi operating licenses allocated by the administration also fall within the scope of state-owned assets.
16. Zeng Deming Arbitration, Case (No. 1402)
The gist of the adjudication: Labor dispute arbitrators are the subject of the crime of arbitrary arbitration, and the arbitrary mediation in labor arbitration should be included in the scope of the crime of arbitrary arbitration. In practice, to determine whether an arbitral act is "serious circumstances", it should be based on the constitutive elements of the crime of arbitration, with reference to the "serious circumstances" in the civil and administrative arbitrariness of the "serious circumstances" in the "Provisions of the Supreme People's Procuratorate on the Standards for Filing Cases of Dereliction of Duty and Tort" dated July 26, 2006, and comprehensively consider the subjective malice (including motive and purpose), means, consequences and other elements of the arbitrary arbitration.
126 volumes
Special Issue on the Interpretation of the Criminal Procedure Law
Volume 127
1. Huang Laizhu traffic accident case (No. 1403)
The gist of the adjudication: The plea leniency system not only focuses on the separation of complicated and simple cases, but also focuses on the resolution of contradictions and the realization of restorative justice. The application of the plea leniency system shall adhere to the criminal policy of blending leniency and severity, and in cases caused by civil conflicts, especially cases of crimes of negligence, it is necessary to find a good balance between leniency and severity, and strive to do a good job of efforts to resolve contradictions, so as to bring about social harmony. For cases involving socially sensitive factors, complex backgrounds, and hidden risks, even if the defendant admits guilt and accepts punishment, it is important not to blindly try to be quick and simplistic. Where the defendant truly admits guilt and accepts punishment, and the procedure is not simplified in accordance with the plea model, it does not impact the substantive lenient punishment.
2. Cheng Qianfa's dangerous driving case (No. 1404)
Gist of the Adjudication: The Criminal Procedure Law provides for a plea system and adds expedited procedures, aiming to provide a "fast track" for the handling of misdemeanor cases. In drunk driving cases, where the facts are clear, the criminal suspect or defendant admits guilt and accepts punishment, and meets the requirements for applying the expedited procedures, the expedited procedures shall be applied in accordance with law, and the handling of such cases should give play to the functions of the expedited procedures.
3. Case of Intentional Injury (No. 1405)
The gist of the adjudication: When applying the plea leniency system in criminal cases caused by civil conflicts, efforts to resolve the contradictions should be done. The full implementation of the plea leniency system provides criminal suspects and defendants with opportunities to obtain victims' forgiveness, and is conducive to the resolution of conflicts and the restoration of social order. The system of leniency for those who admit guilt and accept punishment is an important measure for the modernization of the country's governance capacity, and it is necessary to fully understand its pluralistic value and give play to its due functions.
4. Ma Hefei Theft Case (No. 1406)
The gist of the adjudication: In practice, misdemeanor cases should be the focus of the application of the plea leniency system, which is conducive to the timely punishment of crimes, and is also conducive to giving play to the educational and corrective functions of criminal punishment, and is conducive to the smooth return of convicts to society. In misdemeanor cases, the plea leniency system should be properly applied, and procedurally appropriate litigation procedures should be adopted on the basis of the nature of the case, the severity of the punishment, the difficulty of the case, and the defendant's choice, and where the requirements for applying the expedited procedures and summary procedures are met, the expedited and summary procedures are to be applied in accordance with law, giving full play to their diversion functions, avoiding procedural idling, and bringing about the unity of fairness and efficiency at a higher level; In the application of compulsory measures, criminal suspects or defendants' admission of guilt and acceptance of punishment should be an important consideration in whether they are dangerous to society, and where arrest can be made, arrest is not to be made, and detention is reduced; Where the circumstances of the crime are minor and a criminal punishment may not be given in accordance with law, and where prosecution may not be made, prosecution is not to be given; Where the requirements for the application of a suspended sentence are met, a suspended sentence is to be given in accordance with law, and the application of non-custodial sentences is expanded.
5. Case of Intentional Destruction of Property by Liu Zhengmin and Ma Wukai (No. 1407)
The gist of the adjudication: Where the people's court discovers at trial that the procuratorate's sentencing recommendation is clearly improper, and the procuratorate does not adjust it, the people's court shall promptly make a judgment in accordance with law to ensure that the case is promptly concluded, that the defendant can receive a prompt and timely trial, and that the disrupted social order can be promptly restored. The procuratorate's adjustment of the sentencing recommendation shall be strictly limited to the following two situations: (1) where the people's court finds that the sentencing recommendation is clearly improper; Second, the defendant or defender raises objections to the sentencing recommendation. Procuratorates adjusting sentencing recommendations should be flexible and simple in form, to avoid speedy and simple judgments caused by adjustments to sentencing recommendations, which will further impact the function of the plea leniency system and impact the substantiation of trials.
6. Duan Hong'an's Case of Obstruction of Official Affairs (No. 1408)
Gist of the Adjudication: In a first-instance trial case applying the expedited procedures, where the defendant appeals on the grounds that the facts are unclear or the evidence is insufficient, he actually repents and does not admit guilt. At this time, the purpose of remanding for retrial is to ascertain the key fact of whether the defendant has committed a crime through a complete first-instance trial cross-examination and courtroom debate procedures. On the one hand, remand for retrial is conducive to protecting the defendant's right to cross-examine evidence, and on the other hand, it is conducive to protecting the defendant's right to appeal against the judgment rendered by the court after the retrial.
According to article 45, paragraph 1 of the "Guiding Opinions on the Application of the Plea Leniency System" of the "Two Supreme People's Courts and Three Ministries", where only the defendant in an expedited case repents of appealing, the court of second instance "shall remand for a new trial", and in non-expedited cases, even if the defendant repents and does not admit guilt and appeals, the above provisions do not apply; Cases remanded for retrial can only be tried in accordance with ordinary procedures; After remanding for retrial, leniency is no longer given in plea cases, and it is not excluded that a plea case will be acquitted after retrial, and the case will return to the origin of the "prosecution-defense confrontation" where the procuratorate accuses the defendant of constituting a crime and the defendant believes that he is not guilty.
7. Case of Su Guihua opening a casino (No. 1409)
Gist of the Adjudication: Where the procuratorate initiates a public prosecution based on a plea case, the people's court shall review in accordance with law whether the requirements for applying the plea leniency system are met, and whether the defendant truly has the circumstances to admit guilt and accept punishment. That is, in plea cases, the people's courts shall conduct a comprehensive substantive review in accordance with law. People's courts are to conduct a substantive review of the public prosecution's sentencing recommendation in plea cases, specifically including the following aspects: First, review whether the type of sentence applied to the sentencing recommendation is appropriate; Second, the sentence to be announced should be compared with the sentence recommended for sentencing; Third, it is necessary to pay attention to the search for similar cases to ensure the balance of sentencing and the uniformity of the application of law in similar cases; Fourth, the sentencing of plea cases should be compared with that of ordinary cases. Where the procuratorate raises a prosecutorial counter-appeal because the first-instance court did not recommend adjusting the sentencing recommendation, the second-instance trial court should not remand for a new trial on the grounds of procedural violations.
8. Yu Minmin Refusal to Execute Judgment (No. 1410)
Gist of the Adjudication: In the judicial practice of plea cases, a substantive review of the veracity of the plea should be conducted, to avoid blindly pursuing litigation efficiency and erroneously applying the plea leniency system, thereby impacting the fair handling of the case. In practice, the application of the plea leniency system should emphasize hearing the opinions of the victims and emphasizing the protection of the victims' lawful rights and interests.
9. Case of Zhang Yongli Selling Entry and Exit Documents (No. 1411)
The gist of the adjudication: Even if the defendant admits guilt and accepts punishment and the defender adopts the idea of defending the crime lightly, the people's court should adhere to the principle of evidence-based adjudication when trying the case, adhere to the statutory requirement that "the facts are clear, and the evidence is credible and sufficient", and the standard of proof for determining the defendant's guilt should not be lowered because the defendant admits guilt and accepts punishment, which is also an important difference between the mainland's plea system and plea bargaining.
10. Yang Haoran Drug Trafficking Case (No. 1412)
Gist of the Adjudication: The Criminal Procedure Law does not restrict the defendant's right to appeal in plea cases, and the second-instance final adjudication system is still the basic system of the Criminal Procedure Law in mainland China. Where the defendant appeals on the grounds that the sentence is too heavy, the second-instance trial court should adhere to the principles of comprehensive review and judgment in accordance with law, and cannot negate the first-instance trial's determination of the circumstances of admitting guilt and accepting punishment because of this, and where it is discovered that the sentence is excessive, the judgment shall be changed in accordance with law, and where the original sentence is appropriate, the appeal shall be rejected in accordance with law, the original judgment shall be upheld, and the second-instance trial's function of relief and error correction shall be truly brought into play, and the defendant's lawful rights and interests shall be protected in accordance with law. Where the procuratorate raises a prosecutorial counter-appeal because the defendant appeals, the second-instance trial court should also adhere to the principle of comprehensive review and adjudication in accordance with law, and cannot uniformly increase the defendant's punishment just because the procuratorate appeals.
11. Wu Chunlan and Lu Changxue's Case of Allowing Prostitution (No. 1413)
The gist of the adjudication: "the earlier you admit guilt, the more leniency you will be" is conducive to enhancing the predictability of criminal suspects and defendants in the consequences of admitting guilt and accepting punishment. "The earlier the guilty plea, the more leniency there is" must be comprehensively considered in light of factors such as the value of the guilty plea, the nature of the case, and the consequences of the circumstances.
12. Wang Jian's bribery case (No. 1414)
Gist of the Adjudication: "Accepting punishment" in the plea leniency system has different manifestations at different stages of litigation: in the investigation stage, it is manifested as the criminal suspect sincerely repenting and willing to accept punishment; During the review for prosecution phase, it is manifested as the criminal suspect voluntarily signing a plea affidavit and approving the procuratorate's sentencing recommendation; In the trial phase, it is manifested that the defendant confirms in court that the signing of the affidavit is voluntary, or that he admits guilt in court and is willing to accept punishment. Where criminal suspects admit guilt and accept punishment, but truly do not have the ability to return stolen goods and make restitution, the circumstances of 'accepting punishment' cannot be negated on this basis; Where criminal suspects or defendants accept sentencing recommendations on the surface, but conceal or transfer assets behind their backs, refuse to return stolen goods, make restitution, compensate for losses, or perform property punishments, and clearly do not show sincere remorse, it shall not be found to be "accepting punishment". People's courts shall conduct necessary courtroom investigations and courtroom debates to deny the circumstances of 'accepting punishment', fully hear the opinions of the prosecution and defense, and explain the corresponding legal consequences to the defendant.
128 series
1. Case of Wang Ming et al. Selling Counterfeit Drugs (No. 1415)
The gist of the adjudication: The purchase or storage of counterfeit drugs for the purpose of sale is an act of sale, and the counterfeit drugs seized at the scene shall be included in the sales amount. If there is an attempt to commit a crime in the crime of producing or selling counterfeit drugs, whether or not this crime has been completed shall be based on whether the counterfeit drugs have entered the transaction link, and if the substantive transaction is not carried out due to reasons other than the will of the perpetrator, it constitutes an attempt to commit a crime.
2. Liao Junzhao Intentional Injury Case (No. 1416)
The gist of the adjudication: Where a helper who provides labor services without compensation intentionally injures a person and causes death in the course of helping, the helper is a "other unit or individual" that shall bear liability for the victim's material losses in accordance with law, and may be the defendant in an attached civil lawsuit and bear joint and several liability for compensation.
3. Zhang Jinfu Theft Case (No. 1417)
Gist of the adjudication: The pickpocketing in the crime of theft must occur in a public place or on public transportation, and the object of pickpocketing must be the "property carried by others". As for the understanding of "carry-on", it is advisable to adopt the "personal theory", that is, the property carried with you is the property that others put in their pockets or bags. Therefore, the property stolen by the perpetrator is not the personal property of the owner, even if it is close to the body, such as placed next to the seat, bicycle basket, etc., it cannot be the object of pickpocketing, but can only be the object of ordinary theft.
4. Wang Bin Theft Case (No. 1418)
Gist of the Adjudication: Where a new crime is committed during the period of deprivation of political rights, the calculation of the sentence of deprivation of political rights shall be stopped during the period of enforcement of the principal sentence. The period of deprivation of political rights confirmed by the retrial and revision of the judgment of the previous crime does not necessarily affect the calculation of the remaining sentence of deprivation of political rights for this crime.
5. Cheng Shaojie's case of theft and teaching criminal methods (No. 1419)
Gist of the Adjudication: Where the perpetrator did not commit theft against specific property, the amount of the crime shall be determined by the amount actually obtained. When the perpetrator clearly targets a particularly large amount of property, even if the property is not stolen or the actual value of the property stolen is not large, it should be found to be "an especially huge amount", and the relevant provisions on attempts are to be applied at the same time. When the perpetrator only steals part of the property with a particularly large amount of property as the clear target, the sentence shall be given separately for the completed and attempted circumstances, and a heavier punishment shall be given; where the same sentencing range is reached, the punishment is to be given.
6. Liu Churong, Liu Hanjie, and Liu Lihui Fraud Case (No. 1420)
Gist of the Adjudication: When the defendant has multiple identities such as state functionaries at the same time, the nature of his conduct shall be determined by the specific identity he used to carry out the criminal act. Villagers' committees meet the constitutive requirements and legal characteristics of a "unit" and may be found to be a qualified entity for a unit's crime. The "Interpretation of Article 30 of the Standing Committee of the National People's Congress<中华人民共和国刑法>" is a legislative interpretation that has retroactive effect, and once adopted, it shall be used as the basis for understanding and applying Article 30 of the Criminal Law, and its effect shall apply to the entire period of implementation of the Criminal Law.
7. He Shanghou et al. Fraud Case (No. 1421)
Gist of the Adjudication: Group crime refers to crimes committed by criminal groups, and the degree of explicit nature of the relevant characteristics of different criminal groups varies, and group crimes can be analyzed from aspects such as organization, number of personnel, criminal methods, and the will of the gang. By establishing the basic principle that all members of a group of crimes constitute a crime, the amount of the crime committed by the group during the period of participation of the members is used as the basis for determining the amount of the crime committed by the members. For ordinary group members who quit in the middle of the process, in principle, the amount of the crime is calculated up to the time of their withdrawal; For core group members who withdraw midway, because the harmful consequences of the core members' participation can continue to extend, the amount of the crime is not calculated until the time of their withdrawal, unless they take measures to eliminate the impact and effect of their conduct on the criminal group, such as promptly reporting to the public security organs.
At the same time, in order to solve the problem of individual members' participation for a short period of time and an unusually high amount of crime, two points should be paid attention to in judicial practice: first, where the participation period is obviously short, it can be considered that the subjective intent of the crime has not yet been formed, and it is generally not found to be a crime; Second, participants who did not directly commit fraud (such as "company" executives), or who directly committed fraud with a small amount and less conduct, should be found to be accomplices, and given a lighter, commuted, or waived punishment.
8. Wang Weinan's fraud case (No. 1422)
Gist of the Adjudication: During the pretrial conference, the people's courts may lawfully handle procedural matters that may lead to the interruption of the trial, organize the presentation of evidence, and summarize the focus of the dispute between the prosecution and defense, but must not use this as a substitute for a formal trial. Evidence that has not been verified to be true through court investigation procedures such as presenting, identifying, or debating evidence in court, must not be the basis of a verdict.
9. Yang Zhicheng, Wei Ning, and He Wenjian Fraud Case (No. 1423)
The gist of the adjudication: Where the perpetrator fabricated materials to fraudulently obtain a mortgage loan after the registration of real estate rights, the criminal act of fraud was completed when the actor obtained the ownership of the real estate involved in the case, and the mortgage loan was an after-the-fact act after the completion of the fraudulent act. Therefore, the amount of the crime of fraud committed by the perpetrator should be based on the value of the property obtained by fraud.
10. Dong Junli's Case of Intentional Destruction of Property (No. 1424)
Gist of the adjudication: If the perpetrator only commits a preparatory act for a crime during the probationary period of probation, but does not have a subsequent act, it may not be necessary to deal with it as a crime. If the preparation for the crime is not handled as a crime, the suspended sentence cannot be easily revoked unless the perpetrator meets the circumstances provided for in paragraph 2 of Criminal Law article 77 to revoke a suspended sentence. However, when the perpetrator has carried out a subsequent act, even if the act occurred after the probationary period of a suspended sentence, or when the perpetrator's preparatory act itself necessitates criminal punishment, the suspended sentence given for the previous crime shall be revoked and the punishment imposed for the new crime shall be combined.
11. Luo Jiansheng et al., Case of Organizing, Leading, and Participating in Underworld Criminal Organizations (No. 1425)
Gist of the adjudication: In criminal cases, there are five ways to dispose of the property involved in the case: first, it is used for the enforcement of attached civil compensation; the second is to recover it as illegal gains and order it to make restitution if it cannot be recovered; third, it is used for the enforcement of the penalty of confiscation of property and the penalty of fine; fourth, the confiscation of property used in the commission of crimes, i.e., instruments of crime; Fifth, confiscation as contraband. The above five disposal methods can be divided into three categories according to their different functions: first, compensatory criminal law means; the second is the punitive criminal law method; The third is the criminal law of administrative coercive measures.
When disposing of assets in criminal cases involving underworld crimes, the people's courts shall grasp the principles of strict disposition, lawful disposition, and balanced disposition. In addition, the principle of "civil priority" should also be adhered to, with compensatory criminal law methods superior to punitive criminal law methods, and victims' personal injury compensation being superior to compensation for property rights and interests.
12. Case of Chen Qinghao opening a casino (No. 1426)
The gist of the adjudication: The essence of binary options is to create risks for venture investors to speculate, which is essentially the same as the gambling behavior of "betting on the size and winning or losing", which is actually the previous gambling between the online platform and the investor. Therefore, the operation of a binary options trading website should be deemed to be the opening of a casino.
13. Case of Zhang Yongming, Mao Weiming, and Zhang Lu Intentionally Destroying Places of Interest and Historic Sites (No. 1427)
The gist of the adjudication: In the absence of a statutory appraisal body to appraise the extent of damage to places of interest and historic sites, expert opinions may be used as a reference in conviction and sentencing. In the absence of clarity in the judicial interpretation, the "serious circumstances" in the crime of intentional damage to the scenic spot may be determined from the nature, status, and conduct of the perpetrator.
14. Case of Liu Qingjiang and Zhu Wenxiang illegally purchasing, transporting, and selling rare and endangered wild animals (No. 1428)
Gist of the Adjudication: The act of picking up eggs and eggs of rare or endangered wild animals before the revised Wildlife Protection Law takes effect should not be found to be illegal hunting of rare or endangered wild animals. Where, in the course of approving a sentencing case below the legally-prescribed penalty, the Supreme People's Court has flaws in the sentencing appropriateness but in the determination of individual facts and the application of the charges, it may correct the relevant flaws in the ruling in accordance with law at the same time as approving the case.
15. Case of Zhong Wenfu et al. illegally logging national key protected plants
The gist of the adjudication: According to the provisions of the Criminal Law and relevant judicial interpretations, in addition to the ancient and famous trees with great historical and commemorative significance, scientific research value or age, only wild ones belong to the national key protected plants.
16. Wu Changwen embezzlement case (No. 1430)
The gist of the adjudication: scientific research funds have clear exclusivity and are not the private property of the research group, and the research group does not have the right to dispose of the scientific research funds managed by the project undertaking unit at will. Where the actor uses means such as false expenditures or false invoicing to obtain scientific research funds and transfer them to a company or affiliated company under the actual control of the individual, and the company does participate in scientific research cooperation, it shall be comprehensively determined whether the actor has the purpose of illegally occupying the scientific research funds obtained from aspects such as the company's participation in the implementation and completion of scientific research projects, the company's actual expenditures for scientific research projects, and the true destination of scientific research funds.
17. Wu Shibao's bribery case (No. 1431)
Gist of the Adjudication: In transactional bribery cases, the amount involved should be calculated according to the difference between the local market price and the actual price paid at the time of the transaction. The market price includes the lowest preferential price set in advance by the commodity operator that is not targeted at a specific person. In practice, when determining the circumstances of a solicitation of bribes, it can be grasped from the following perspectives: (1) a solicitation of bribes is constituted if it is not first proposed by a state functionary, but the solicitation of bribes should be the first expression of the intention of the state functionary to the trustee to collect property through express or implicit means; (2) The essence of soliciting a bribe is that it is against the will of the bribe-giver, and although it is not required to reach the level of coercion or extortion, it should be able to reflect that the bribe giver delivers the property out of pressure, helplessness, or reluctance. (3) In practice, a comprehensive judgment can be made based on the extent to which the bribe taker seeks benefits, whether the bribe-taker's demand for property is within the psychological expectation of the trustee, and whether the solicitor's solicitation is illegal.
18. Shou Yongnian bribery case (No. 1432)
The gist of the adjudication: In a real estate transaction-type bribery case, to determine whether the transaction price of a house is significantly higher or lower than the market price, the absolute value of the difference between the two should be taken as the basis, and the discount rate (difference ratio) should be taken into account to comprehensively determine whether the purchase price is significantly higher or lower than the market price. In addition, for a state functionary to be found to have traded real estate at a price significantly higher or lower than the market price to the trustee constitute bribery, objectively it is also necessary for the state functionary to take advantage of his position to seek benefits for the trustee, and subjectively it is also necessary for the state functionary to know or should know that the difference in the price obtained by the real estate transaction is not caused by normal market behavior, but is the result of a power-for-money transaction, so that the crime of accepting bribes can be established.
19. Case of Lu Gaochun's Abuse of Power (No. 1433)
The gist of the adjudication: If the person in charge of a state-owned enterprise entrusted with the exercise of administrative powers arranges for its staff to give up the performance of its administrative duties, resulting in the inability of other administrative organs to exercise its administrative powers, thereby causing the administrative offender to evade administrative punishment and the harmful consequences of the loss of administrative punishment funds, he may be investigated for criminal responsibility for the crime of abuse of power.
Volume 129
1. Foshan Gelihua Economic and Trade Co., Ltd., Wang Chidong, Li Weixiong smuggling waste case (No. 1434)
The gist of the adjudication: In the criminal case of using another person's license to import solid waste that can be used as raw materials, the perpetrator's act of misappropriating another person's license is still essentially "borrowing" as provided for in paragraph 3 of article 21 of the "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Smuggling", because it is not possession and not returned, but is still returned to its owner after use. According to the relevant provisions, there are three situations in which the act of using another person's license to import solid waste that can be used as raw materials may not be treated as a crime: first, an enterprise that has passed the environmental impact assessment and has waste processing qualifications purchases a license to import solid waste that can be used as raw materials due to insufficient consumption; the second is to use another person's automatic import license to import solid waste that can be used as raw materials, and there is no false declaration, concealment, etc.; Third, the actual consignee has the corresponding environmental impact assessment qualifications. Among them, considering the pollution that may be caused to the environment by the processing and utilization of solid wastes that can be used as the original, the identification of the environmental impact assessment qualification of the actual consignee should be strictly controlled, and the corresponding environmental impact assessment qualification or waste processing qualification through the environmental impact assessment cannot be simply expanded to have environmental protection processing capacity.
2. Dandong Xintai Electric Co., Ltd., Wen Deyi, and Liu Mingsheng Case of Fraudulent Issuance of Securities and Illegal Disclosure of Important Information (No. 1435)
The gist of the adjudication: Where the investigating organs lawfully go to the perpetrator's residence to issue a notice of questioning when they are aware of the perpetrator's suspicion of committing a crime, because the perpetrator has no choice at this time and can only appear in the case for questioning as required, it is not a voluntary surrender and should not be found to be voluntary surrender; However, where the investigating organs first notify the perpetrator by telephone, and the perpetrator waits in place as required by the investigating organ, and during this period is able to choose to escape but does not escape, reflecting that they have a certain degree of initiative in coming into the case, it may be found to be voluntary surrender. However, because there is a difference between the initiative to appear in the case and the voluntary nature and the standard voluntary surrender, it can be appropriately distinguished in sentencing.
Where the securities regulatory department has already imposed a lifetime ban on the perpetrator from entering the securities market in accordance with the provisions of the Securities Law, in order to avoid repeated punishments, it is inappropriate for the people's court to impose a separate prohibition on the perpetrator in accordance with the provisions of paragraph 1 of Article 37-1 of the Criminal Law when making a judgment.
The company successfully listed and issued shares through fictitious financial data, which violated the state's management system on stock issuance; After listing, the company continued to disclose false financial and accounting reports in violation of regulations, which eventually led to the termination of the listing and trading of the shares issued by the company, which seriously damaged the interests of shareholders and others, and undermined the management system of information disclosure of listed companies. The legal interests infringed by the two acts and the social harm caused by the two acts are not the same, and they are independent crimes, and there is no implication between the two, so they should be punished concurrently.
3. Zhang Namula Intentional Injury Case (No. 1436)
Gist of the adjudication: In the process of determining special defense, whether the perpetrator's defensive conduct clearly exceeded the necessary limit is often the focus of controversy in the case. In this regard, it should be noted in the process of judging that: first, whether the defensive act clearly exceeds the obvious limit should be judged based on the level of understanding of ordinary people and the actual situation at the scene, rather than analyzing the degree of infringement from the perspective of hindsight to determine whether the defensive act exceeds the necessary limit. Second, to determine whether the defensive act clearly exceeds the necessary limit, the degree of harm that may be caused by the violation should be based on whether the degree of harm that may be caused by the violation is commensurate with the four crimes of assault, robbery, rape, and kidnapping, rather than whether the actual harm is equivalent to the completed results of the above four crimes. That is, the level of understanding of ordinary people, combined with the actual situation at the scene, and taking into account circumstances such as the weapon in the possession of the infringing party, the number of people, the conduct already carried out, and the place where the act was carried out, should be used to determine whether the unlawful infringement has reached the level of "seriously endangering personal safety". To determine whether the unlawful infringement has ended, factors such as whether the unlawful infringer has left the scene, lost the ability to infringe, and abandoned the intent to infringe should be comprehensively considered. For defendants who constitute legitimate defense, the main text of the verdict should be "not guilty" rather than "not criminally responsible".
4. Case of Qin Lei's rape and child molestation (No. 1437)
Gist of the Adjudication: In cases of sexual assault against minors where the perpetrator has no confession, the people's court shall consider the following perspectives when determining the facts of the case: (1) whether the process of occurrence and investigation of the case is natural; (2) whether the statements of multiple victims are consistent, and whether there are contradictions and unreasonable interpretations that cannot be ruled out; (3) whether the victim had the motive and purpose of making a false accusation against the perpetrator; (4) Whether other circumstantial evidence can corroborate the victim's statement; and (5) whether there are contradictions or irregularities between the perpetrator's innocent confession and justification and other relevant evidence.
The perpetrator used his position as a teacher to repeatedly commit adultery with an underage girl under the age of 12, which is a situation of "adultery with an underage girl with heinous circumstances". The perpetrator took advantage of the opportunity to check the bed at night to carry out indecent acts of child molestation in a group dormitory where more than 10 female students lived, which is "indecency in public in a public place".
5. Au Yunsheng's case of forcible insult (No. 1438)
Gist of the adjudication: The difference between the crime of forcible insult and the crime of insult is mainly reflected in the following aspects: First, the object of infringement of the two crimes is different. The crime of forcible humiliation focuses on the violation of women's right to sexual autonomy and sexual health, while the object of the crime of insult is the personality interests and reputation of citizens in a general sense. Second, the purpose of the two crimes is different. The crime of forcible insult is for the purpose of seeking sexual stimulation or sexual gratification, while the crime of insult is mostly revenge, venting dissatisfaction, belittling, damaging the personality of others, and destroying the reputation of others. Third, the means of committing the two crimes are different. Acts of forcible humiliation refer to obscene acts that infringe on women's sexual autonomy and shame in addition to indecent acts, and the crime of insult is the blatant abuse or derogatory personal insult to others by violence or other means. Fourth, whether the requirement is "serious" is different. The charge for the crime of insult contains the qualifier of "serious circumstances", which emphasizes the social harmfulness of the act, while the crime of forcible insult does not have this requirement.
The provisions of the Criminal Law make a clear distinction between indecency and insult to women, and "forcible indecency" emphasizes physical contact to a certain extent, and interprets the indecent behavior that does not have the characteristics of physical contact but has the same characteristics as indecency as "forcible insult", thus maintaining the integrity and systematization of the law. At the same time, the crime of indecency with children is a separate crime, and there is no distinction between indecency and insult. Therefore, Guiding Case No. 43 issued by the Supreme People's Procuratorate recognizes the perpetrator's act of soliciting children to take photos or videos of nudes and sensitive parts for them to watch by inducing, coercing, or other methods as the crime of child molestation, which has certain particularities.
Although the crime of forcible indecency or insult does not require "serious circumstances", in accordance with the provisions of Article 13 of the General Provisions of the Criminal Law of the Mainland and the need to connect with the Public Security Administration Punishment Law, the boundary between the crime and the non-crime of this crime should be grasped from the elements of the circumstances, especially the degree of coercion, and the acts of compulsory indecency or insult should be distinguished from ordinary acts of indecency or insult. Where an occasional single indecent act such as groping or hugging does not cause more serious harmful consequences, it is not appropriate to uniformly find the crime of forcible indecency or insult.
6. Xu Wenbin Fraud Case (No. 1439)
The gist of the adjudication: Although the indirect principal offender is not a joint crime, there are after all the perpetrators who dominate and use others and the perpetrators who are dominated and exploited, and the perpetrators may certainly act beyond the scope of their instructions. Therefore, among indirect principal offenders, there is also an excesse, and the excesses are not only limited to the nature of the act, but also to the amount of the exceedance.
7. Case of embezzlement by Han Feng (No. 1440)
The gist of the adjudication: As long as the perpetrator's illegal possession of the unit's property is taking advantage of his position, whether he or she uses stealing, deception, or other means, it does not affect that his conduct constitutes the crime of embezzlement in public office. The key is whether the perpetrator took advantage of his position as a supervisor, manager, or handling of the unit's property in the course of illegally taking possession of the unit's property. In practice, the perpetrator may carry out a variety of acts in the course of committing the crime, sometimes taking advantage of the convenience of his position, sometimes taking advantage of his familiarity with the environment in which the crime was committed, and even some of the acts have nothing to do with the convenience of his position, in this case, from the perspective of causality in the criminal law, the crime should be determined according to the extent of the role played by the convenience of the actor's position in completing the crime, and if the convenience of the position plays an indispensable role in the completion of the crime as a whole, his conduct constitutes the crime of embezzlement in public office.
8. Case of Wang Xuejun et al. Illegally Obtaining State Secrets, Illegally Selling, and Providing Test Questions and Answers (No. 1441)
The gist of the adjudication: "national examinations prescribed by law" should be interpreted as national examinations prescribed by laws formulated by the National People's Congress and its Standing Committee, but in practice, it is not possible to simply and mechanically require that legal provisions must have a clear expression of "examination", and relevant legal provisions should be systematically interpreted in combination with daily life practice, administrative regulations, and departmental rules. According to Article 14 of the Construction Law and other relevant provisions, the construction engineer examination is a "national examination prescribed by law".
As long as it can be proved that the perpetrator subjectively recognized that the test questions or answers he illegally sold or provided were or were very likely to be the test questions or answers of the state examinations prescribed by law, and objectively carried out the act of illegally selling or providing, even if the test questions or answers he illegally sold or provided were only partially consistent with the actual test questions or standard answers, or even only one test question or one answer, it does not affect the determination of this crime. If the test questions and answers illegally sold or provided by the perpetrator are completely inconsistent with the real test questions and standard answers, it may be handled as an attempt to commit a crime.
Where test questions and answers that are state secrets are illegally obtained and then illegally sold or provided, because the implication between the two is not close, the heavier punishment cannot be applied on this ground, and the punishment for multiple crimes should be combined.
9. Case of Wang Pengwei and Zhou Nan Stealing and Excavating Ancient Cultural Sites (No. 1442)
The gist of the adjudication: Not all acts of the perpetrators are completed at the first start, the length and content of the process of different harmful acts are different, and the stage at which stage of the criminal process can the perpetrator's conduct reach the state of completed crime is related to whether the conduct is carried out at the end of the act, and is also related to the legislative assessment of the social harmfulness of the criminal act. In the crime of illegal excavation of ancient cultural sites and ancient tombs, whether the historical, artistic, or scientific value of ancient cultural sites and ancient tombs has been damaged is an important criterion for determining whether the illegal excavation has been attempted.
10. Case of Illegal Hunting and Killing of Rare and Endangered Wild Animals in Sonam Ouzhu (No. 1443)
Gist of the Adjudication: In cases where the defendant appeals and is sentenced to a sentence below the legally-prescribed penalty, and the second-instance trial court remands for a new trial on the grounds that the sentence is improper, the first-instance trial may increase the punishment. Where the Supreme People's Court does not approve a case where the defendant appeals or the people's procuratorate raises a prosecutorial counter-appeal and is sentenced to a criminal punishment below the legally-prescribed penalty, it may remand to the first- or second-instance trial court for new trial on the basis of the circumstances of the case. In cases where a sentence below the legally-prescribed penalty is not approved and remanded for new trial, the original trial court shall decide whether to hold in-court proceedings based on the circumstances of the case. In cases where a sentence below the statutory penalty is not approved and remanded for retrial, the original trial court does not have to separately form a collegial panel to hear the case. The High People's Court may not issue a written ruling in cases submitted to the Supreme People's Court for approval of a sentence below the legally-prescribed penalty.
11. Case of Zhou Juqing Disseminating Obscene Materials (No. 1444)
The gist of the adjudication: The perpetrator's use of obscene electronic information to promote lawful products for profit does not fall under the circumstances of using the Internet to disseminate pornographic materials for profit as provided for in the judicial interpretation. The crime of disseminating pornographic materials for profit is only because it needs to be "for the purpose of making profits" in terms of the constitutive elements, and the statutory penalty is far heavier than that of the crime of disseminating pornographic materials. Therefore, according to the principle of proportionality of criminal responsibility and punishment, the "profit-making" in the crime of disseminating obscene materials for profit should be strictly interpreted. In the case of using pornographic materials to solicit customers, but the benefits obtained are directly derived from other lawful products or services, it is not appropriate to find that it is the crime of disseminating pornographic materials for profit, whether in accordance with the provisions of judicial interpretations or the requirements of the principle of proportionality of crime and punishment.
12. Du Zhongya and Li Zhangduo embezzlement, illegal transfer of land use rights, and fraud (No. 1445)
Gist of the Adjudication: Where there are multiple defendants in the same case, and some of the defendants are sentenced below the legally-prescribed sentence, only the sentencing portion of the defendants sentenced below the legally-prescribed sentence shall be reported for review. Where the defendant commits multiple crimes, and the sentencing for one of the crimes is below the legally-prescribed sentence, in principle, the sentencing portion of the crime committed by the defendant should be reported to the Supreme People's Court for review and approval. Although the criminal law does not provide for the determination that the unit involved in the case constitutes a unit crime, it shall be considered when sentencing natural persons, and the spirit of leniency shall be appropriately reflected.
13. Case of Gang Ran and Wu Jingzhu accepting bribes and forging documents of state organs (No. 1446)
The gist of the adjudication: to introduce the distinction between bribery and bribery accomplices, starting from the aspects of subjective understanding and objective behavior. From the perspective of subjective understanding, the purpose of introducing bribes is not to give or accept bribes, but to help the bribe-giver and bribe-taker parties establish bribery links, that is, to play the role of matchmaking, communication and matchmaking, and subjectively must have the intention of introducing bribes to state functionaries and realize that they are in the position of "intermediaries". Therefore, the actor who introduces bribes subjectively has an independent intention, that is, the intention to introduce bribes, while an accomplice to bribery is when the perpetrator and the bribe giver or bribe recipient form a common intention, and realize that he is helping the bribe giver or the bribe recipient to accept bribes. The common intent of the perpetrator and the bribe giver or bribe recipient includes two elements: first, each actor has the same criminal intent; The second is that there is a communication of intent between the perpetrator and the bribe giver or bribe-taker. From the perspective of objective behavior, the introduction of bribery is to provide information, introduction, communication and matchmaking between the bribe-giver and the bribe-taker. The joint crime of bribery is the joint offering of bribes to state functionaries for the purpose of seeking improper benefits; The joint crime of accepting bribes is to jointly promote the bribe-giver to seek benefits and accept property by their respective acts.
14. Shen Caigen's bribery case (No. 1447)
The gist of the adjudication: There is an essential difference between the bribery relationship between a state functionary and the trustee in the name of lending and normal private lending, which is manifested in the following aspects: (1) from the perspective of the relationship between the two parties, in normal private lending, the two parties generally have economic exchanges, or the two parties are relatives, friends, colleagues, classmates, etc., have a relatively close relationship; In the loan between the trustee and the trustee, the lender is a state functionary, and the borrower is the object of management, restriction and supervision by the state functionary. (2) From the perspective of whether there is a demand for borrowing, in normal private lending, the borrower has a demand for borrowing, and generally takes the initiative to ask the lender for borrowing; In the lending between the trustee and the trustee, the lender generally does not care whether the borrower has a need for funds, and some even offer to lend funds. (3) From the perspective of post-borrowing behavior, in normal private lending, the borrower will generally explain to the lender the purpose of the funds, the use process, the repayment date and the return of interest; In the case of loans between the trustee and the trustee, the lender generally does not ask or care about this. (4) From the perspective of the source of the loaned funds, in normal private lending, the lender generally lends its own funds to the other party; In the loan between the trustee and the trustee, there are also cases where the lender will lend the funds borrowed from others without interest or at low interest to the borrower to earn the difference. (5) From the perspective of returns, in normal private lending, the interest of the borrower and the lender generally matches the income generated by normal economic activities; In the loan between the trustee and the trustee, the borrower gives the lender a high amount of interest, and the interest obtained is seriously disproportionate to the income normally generated by the funds.
The amount of the crime of accepting bribes by borrowing money and charging high interest may be determined to exceed the maximum annual interest rate of the trustee borrowing from other relatives and friends during the same period. However, if it is proved on the basis of evidence that the borrower does not have the need to borrow money and that the state agent is aware of it, all the interest received by the state agent shall be deemed to be the amount of the bribe.
Volume 130
1. Chen Junwei arson case (No. 1448)
The gist of the adjudication: The determination of the crime of arson shall be objectively sufficient to endanger public safety and the perpetrator subjectively has the intent to set fire. When distinguishing between the crime of arson and other crimes committed by means of arson, emphasis should be placed on examining: (1) whether the target is specific, if the perpetrator uses arson to infringe on a specific target, and consciously limits the damage to the scope of the specific target, it is not appropriate to find the crime of arson; (2) whether the harm is specific and the crime of arson is a specific dangerous offense; (3) Whether the consequences are controllable, and if the perpetrator carries out the act of arson, and the fire is effectively controlled within a small scope, and there is no harm and is not sufficient to endanger the life, health, and safety of major public or private property of an unspecified number of people, it does not constitute the crime of arson; (4) Whether the consequences were pursued or allowed to occur, if the probability of the perpetrator's arson causing endangerment to public safety is very low, and the defendant did not pursue or allow the result, it does not constitute the intention to set fire, and should not be found to be the crime of arson.
2. Case of Sun Huizhong endangering public safety by dangerous means (No. 1449)
Gist of the Adjudication: The distinction between the crime of chasing and racing dangerous driving and the crime of endangering public safety by dangerous means can be analyzed from the following perspectives: (1) from the place where the illegal act was committed; (2) analysis of the defendant's driving style and speed; (3) analysis of traffic conditions and the duration of the violation; (4) From the analysis of harmful consequences. In criminal cases where the procuratorate has applied the plea leniency system to initiate a public prosecution, and after trial the people's court finds that the charges are improper, the court shall, on the basis of hearing the opinions of both the prosecution and defense, make a judgment on the basis of the provisions of law and the charges determined at trial.
3. Wang Aihua and Chen Yuhua Traffic Accident Case (No. 1450)
The gist of the adjudication: The perpetrator's conduct of driving a vehicle in violation of regulations and causing the death of the victim has constituted the crime of causing a traffic accident, and where it cannot be determined whether the victim died when he fled the scene, it is not appropriate to find it to be "fleeing to cause death", but it may be determined that he fled after the traffic accident. Regardless of the causal relationship between the vehicle owner's conduct and the traffic accident, it has met the basic elements of the crime of causing a traffic accident, and shall be found to constitute the crime of causing a traffic accident, regardless of the causal relationship between the vehicle owner's conduct and the traffic accident; After a traffic accident occurs, the owner of the vehicle instructs the driver to flee in order to evade legal prosecution, it shall be "fleeing after a traffic accident" as provided for in article 133 of the Criminal Law.
4. Case of Qingdao Ruichi Investment Co., Ltd. and Luan Gangxian Illegal Transfer of Land Use Rights (No. 1451)
Gist of the adjudication: From the perspective of the legal nature of equity transfer and land use right transfer, the company's equity transfer will not directly lead to a change in the land use right as an independent property of the company. From the perspective of the constitutive elements of the crime of illegally transferring or reselling land use rights, the crime must have both the subjective element of "for the purpose of profit" and the objective elements of disrupting the normal circulation of land use rights and reaching the level of seriousness. From the perspective of the criminality and the moderation of the criminal law, there is currently no mandatory provision prohibiting the transfer of land use rights or real estate projects in the form of transfer of company equity, and there is insufficient basis for pursuing the criminal liability of the perpetrator. From the perspective of the development direction of national land policy, such as optimizing the market-oriented allocation of production factors and promoting the reform of land circulation system and mechanism, it is not appropriate to criminalize the act of transferring land use rights in the form of equity transfer.
5. Wang Hao's fund-raising fraud case (No. 1452)
Gist of the Adjudication: The indictment is a legal document in which the people's procuratorate initiates a public prosecution in the people's court, and the indictment must not be changed, added, supplemented, or withdrawn except for legally-prescribed reasons and procedures. People's procuratorates appearing in court shall issue public prosecution opinions on the basis of the indictment, and people's courts shall handle public prosecution opinions that are inconsistent with the indictment issued by the public prosecutor appearing in court on a case-by-case basis. Where the people's procuratorate changes, adds, supplements, or withdraws the basic content of the indictment, it shall submit it in writing and affix the seal of the people's procuratorate, and the people's court shall request that the people's procuratorate submit a decision to modify, add, supplement, or withdraw the indictment, and where the people's procuratorate does not submit it, the people's court shall take the indictment as the standard, and must not take the public prosecutor's opinion on modifying, adding, supplementing, or withdrawing the indictment in court as the standard. The people's court may request that the public prosecution organ submit a written amendment to a clerical error in the indictment, and where the summary procedures or expedited procedures are applied, the public prosecutor may also supplement and correct them in court, but this shall be recorded in the trial record. Adjustments to sentencing recommendations shall adhere to the principles of necessity and simplicity, and may be submitted in writing by the public prosecution organ or by the public prosecutor in court.
6. Xu Yun, Sang Linhua et al. Illegal Business Case (No. 1453)
The gist of the adjudication: It cannot be presumed that the product is a counterfeit or shoddy product on the basis that the product is illegally entered, or that the product is made or posted with false content.
7. Case of intentional homicide by Ye Deli and Sun Penghui and harboring by Sun Penghui (No. 1454)
The gist of the adjudication: In cases of hired homicide, the position and role of the hired murderer and the hired person in the joint crime should be considered, and the most serious criminal responsibility should be accurately determined. Specifically, the following aspects can generally be considered: (1) the hired murderer not only initiates the criminal intent, but also directly commits the crime together with the employee, and the perpetrator is the most serious criminal; (2) Although the hired murderer did not directly commit the crime, but participated in the planning of the joint crime, and was the main perpetrator of the criminal plan, organizing and directing the hired person to commit the crime, and the hired murderer was most seriously responsible; (3) The hired murderer hires a minor with the capacity for criminal responsibility to commit the crime, and the perpetrator is the most seriously criminally responsible; (4) The hired murderer hires a large number of people to commit the crime, and the role and status of each hired person are basically the same, and the responsibility is relatively scattered or the responsibility is difficult to distinguish, while the hired murderer should be responsible for the whole case, and the criminal responsibility is the most serious; (5) Where the hired person requests to quit the crime or stop the crime, and the hired murderer strengthens the employee's will to commit the crime by increasing remuneration or other means, the responsibility of the hired murderer is the most serious; (6) Where the hired murderer only puts forward the criminal intent in general terms, does not participate in the planning of the crime, does not carry out the organization or command acts, and does not carry out the acts, the hired person actively commits the criminal acts, and the hired person's criminal responsibility is the most serious; (7) The employee clearly exceeds the scope of the hired murderer's instruction to commit the crime, and the employee's criminal responsibility is the most serious due to the more serious consequences caused by the excessive conduct; (8) If the hired offender withdraws his criminal intent and demands that the employed person stop committing the crime, and the employed person still persists in committing the criminal act, the employee is most seriously culpable. When deciding whether to apply the death penalty to a hired murderer, the circumstances of the case should be the main consideration, taking into account the circumstances outside the case. Emotional disputes that are contrary to social morality cannot be used as a cause for leniency; The "counter-killing" of the hired person should be included in the sentencing evaluation of the hired murderer; Where there is a confession or meritorious service, where the circumstances are ordinary, leniency may not be given; Reparation and forgiveness do not absolutely preclude the application of the death penalty.
8. Zhao Yingfeng's intentional homicide case (No. 1455)
The gist of the adjudication: Where the criminal suspect is not actively initiated, but is persuaded or accompanied by relatives or friends to surrender, and where the public security organs notify the criminal suspect's relatives and friends, or where relatives and friends take the initiative to report the case, and then send the criminal suspect to surrender, it is "sending relatives to surrender" and may be found to be voluntary surrender. Although relatives and friends assisting the public security organs in apprehending criminal suspects and tying up criminal suspects to bring them to justice save judicial resources to a certain extent, criminal suspects lack the core element of voluntarily placing themselves under the control of the judicial organs for review, and cannot be regarded as voluntary surrender. The "scene" in the "scene to be arrested" type of surrender should refer to the crime scene and not to other places. On this basis, the specific scope of the determination site varies according to the circumstances of each case, but the scope should not be too large. In addition, the suspect has not hidden, etc., and the investigators can find it after arriving at the crime scene, or can find the suspect through simple investigation, visits, and inquiries, before it can be regarded as "waiting at the scene". Even if a criminal suspect has attempted suicide after committing the crime, as long as he is willing to put himself under the control of the judicial organs again and voluntarily surrenders, it can still be found to be voluntary surrender.
9. Shi Longhui Intentional Injury Case (No. 1456)
The gist of the adjudication: In the course of fighting each other, if one party causes the death of the other party in order to protect his wife who comes to dissuade him from illegal harm, it may be found to be defensive in nature. If the means of defense clearly exceed the necessary limits and cause major damage, it is considered excessive defense.
10. Case of Li Sabotaging Military Marriage (No. 1457)
The gist of the adjudication: The determination of "cohabitation" in the crime of sabotaging military marriages should follow the interpretation of the substantive meaning of the crime while following the formal interpretation of the criminal law, emphasizing the negative evaluation of the substantial destruction of military marriages. Cohabitation between a spouse and another person should be a continuous and stable act of cohabitation. When judging whether the cohabitation is sustainable and stable, the length of cohabitation should not be the sole criterion, but should be considered in light of the specific circumstances of the case, and many factors such as the length of cohabitation, the degree of stability of the cohabitation relationship, and the frequency of cohabitation should be comprehensively considered. Long-term adultery has been maintained for more than one year, the time is relatively continuous, the location is relatively fixed, especially if there is a close relationship in economy and life, and the substance of cohabitation has been obtained, and the degree of damage to marriage, especially military marriage, is tantamount to cohabitation, and its essence is already cohabitation.
11. Li Ruihua theft case (No. 1458)
Gist of the Adjudication: Where the defendant applies for the exclusion of illegal evidence and provides relevant leads or materials, causing the court to question the legality of evidence gathering, the legality investigation procedures shall be initiated. Specifically, the clues provided by the defendant and the defender to exclude illegal evidence include detailed information such as the person, time, place, and method of the suspected illegal evidence gathering, and a detailed description of the illegal evidence gathering conduct, and there is a possibility that such illegal evidence gathering conduct will occur, and there is also the reality of verification, and it shall be determined that the clues provided by the defendant and the defender have a specific direction, which can make the court question the legality of the defendant's relevant confessions. Where the public prosecution organ does not provide evidence, or the evidence provided cannot prove the legality of evidence gathering, the defendant's confession made as a result of the illegal collection of evidence and the repetitive confession made by the impact of the illegal evidence gathering is to be excluded in accordance with law. Where the victim's pre-designation interrogation record clearly describes the characteristics of the item, and it is consistent with the photograph of the actual item, it may be accepted as evidence in the verdict.
12. Case of Wu Bing's Illegal Acquisition of Computer Information System Data (No. 1459)
Gist of the adjudication: The essence of the crime of sabotaging a computer information system lies in the damage to the function of the information system. The "deletion, modification, and addition" of "data" and "applications" in this crime must damage the functionality of the computer information system to the extent that such a degree is continuous. Although the perpetrator used relevant plug-ins to modify system data and illegally recharge, although it caused damage to the recharge program to a certain extent, the act did not interfere with the normal recharge of other game users, and it cannot be determined that his conduct constituted the crime of destroying computer information systems. The data referred to in the crime of illegally obtaining computer information system data does not need to have been stored in the information system for a long time, but can also be generated by the system in real time according to the settings, so the perpetrator taking advantage of system vulnerabilities to illegally obtain game currency may be found to be an act of illegally obtaining computer information system data.
13. Dong Yuan's case of picking quarrels and provoking troubles (No. 1460)
Gist of the Adjudication: Where a new crime is committed during the probationary period of probation, but the suspended sentence has been revoked before the verdict for the new offense is made, article 77 of the Criminal Law shall still be invoked in the judgment for the new offense.
14. Case of Chen Zhibin et al. Opening a Casino (No. 1461)
Gist of the Adjudication: When determining the nature of the lottery-style sales act, it shall focus on the review from three aspects: the essence of the lottery-style sales act, the nature of the operation and management of the online platform, and the subjective intent of the actor. (1) To review the essence of the lottery-style sales act, first look at whether the lottery-style sales are genuine, if the perpetrator defrauds the participants of their property by manipulating the winning results or false lottery sales in the name of lottery-style sales, it should be considered to constitute the crime of fraud; On the other hand, if it is a genuine lottery sale, it may involve a gambling crime. Second, to see whether the lottery-style sales are the main business content and means of profit, if the business content is purely or mainly based on the lottery-style sales, and mainly relies on the discount, commission and other methods without physical sales to make profits, it should be found to be a gambling crime; On the contrary, if the lottery sales only serve the normal sales of goods, it should not be treated as a crime. (2) Review the nature of the operation and management of online platforms, and organize users to participate in gambling by providing relatively stable places (including websites, WeChat groups, etc.) on the Internet for the purpose of profit, and continuously manage, operate, and maintain the "venues", shall be deemed to be the opening of casinos. Conduct that only uses online platforms or other online means to convene people to participate in relatively secret short-term gambling on a relatively small scale may be considered to be characterized as a gambling crime of gathering crowds to gamble. (3) The subjective intent of the perpetrator is examined, which constitutes a gambling crime, and the perpetrator involved in the case should be for the purpose of making profits, and at the same time should clearly know that the business model used by the perpetrator is suspected or may be suspected of violating the law or even violating the law. In cases involving multi-level personnel participating in the operation of a website or enterprise, the focus should be on whether the personnel involved in the operation of the website or enterprise constitute an accomplice, i.e., whether they are aware of the essence of the business conduct. Some persons who only participate in certain aspects of the business and have evidence to prove that they are not aware of the profit-making methods and the nature of the business activities should not be dealt with as crimes.
15. Xiao Yingwen and Li Qiufa, Case of Refusal to Enforce the Judgment (No. 1462)
Gist of the Adjudication: In the crime of refusing to enforce a judgment or ruling, "making the judgment or ruling unenforceable" not only refers to the finality and permanent inability to enforce the enforcement content determined by the effective judgment or ruling, but also includes the situation where the person subject to enforcement refuses to enforce and the circumstances are serious, resulting in the inability to effectively carry out the enforcement measures.
16. Case of Dong Chuanqiao, Zhang Suo and 19 others polluting the environment (No. 1463)
The gist of the adjudication: Where two or more defendants separately carry out acts of polluting the environment and cause harmful consequences, an overlapping causal relationship is constituted, that is, neither of the two conditions alone can lead to the occurrence of the result, but both play an important role in the occurrence of the result, have no intention to communicate with each other, and combine to act at the same time to cause the occurrence of the result. In this case, both conditions have a causal relationship with the outcome.
17. Wang Jia's bribery case (No. 1464)
The gist of the adjudication: In ordinary bribery and bribery cases, no matter how long the timeline between accepting property and seeking benefits is, or even if the parties to the bribery and bribery agree that the state functionary will "do things" while in office and receive money after retirement, the correspondence between seeking profits and receiving money is still self-evident, and generally no special proof is required. However, when there is a specific relationship between the briber and the bribe, further proof is required. If the correspondence between the seeking of profit and the acceptance of property does not meet the standard of certainty and sufficiency, it shall not be found to be a fact of bribery. In the crime of accepting bribes, "taking advantage of one's position" includes taking advantage of the authority of other state functionaries who have a relationship of subordination or restraint in their positions, and the understanding of the above-mentioned relationship of supervision, responsibility, subordination, and restraint should not be limited to direct subordinates, but should be specifically determined in light of the nature and functions of the state functionary's employer, the position he or she holds, as well as the provisions of the law, the influence of policies, the practice in practice, and the institutional arrangements formed by national conditions, and so forth, and should not be overly strict. The handling of assets involved in bribery cases should be based on the principle that the offender must not be allowed to profit from the violation of the law or committing the crime, and the criminal's unlawful gains and their proceeds shall be recovered together. Assets seized in the case shall be handled in accordance with the following principles: first, for unlawful gains, the original items shall generally be recovered; Second, the value-added portion of the bribes should be recovered together (if the source of funds for the purchase of the house is both the bribes and the lawful income of the defendant and his family, the share of the bribes and the proceeds corresponding to the value of the house shall be recovered); Third, where the value of the property is depreciated, the defendant may allow it to be discounted with other property, and depending on the circumstances, it is to be used as an expression of the defendant's active return of stolen goods; Fourth, where the defendant is sentenced to a property penalty, the assets in the case that have been sealed or seized may be compromised; Fifth, other sealed or seized assets in the case shall be returned to the defendant and his relatives in accordance with law.