[source] "the people's Procuratorate" in 2011 Sixth
[keyword] the amendments to the criminal law (eight)
The year 2011 [writing]

[Abstract]

In February 25, 2011, the eleventh meeting of the nineteenth NPC Standing Committee examined and adopted the "PRC Criminal Law Amendment (eight)" (hereinafter referred to as "the" criminal law amendment (eight) ""), which was made of the criminal law amendment of 1997 has been one of the most important modification. The amendment 50, canceled 13 crime death penalty, the first time to the general provisions of criminal law was revised, the content involves the adjustment of penalty structure, for some serious violent crime were sentenced to a suspended death sentence commutation, parole and prolong the criminals in prison the real minimum prison sentence has made new provisions, extended the for the prison sentence, perfect for the elderly and the minor provisions leniency, will confess lenient criminal policy and law. The criminal law amendment is mainly to further modify and improve the relevant legal provisions against evil forces crime, strengthen the protection of criminal law for the people's livelihood and vulnerable groups, some legal provisions are revised, and adds some new crime. This amendment to the further improvement of the criminal law, punishing crime, the maintenance of law and order of society and the market economic order, protect the legitimate rights and interests of citizens, will play a positive role.

The "criminal law amendment (eight)" the main content of main provisions of the legislation background, briefly introduces the provisions of.

A, appropriate to reduce some of the charges of death penalty

(a) the death penalty charges change process in the criminal law of our country

To retain the death penalty, limiting and careful application of the death penalty, is our consistent adherence to the policy of criminal law. The 1979 Criminal Law embodies this policy, the criminal provisions of the death penalty applies only to commit the most heinous crimes. "". 129 charges of criminal law provisions in 1979 103 articles, 15 articles in 27 death penalty charges, including crimes of counterrevolution 14, 13 ordinary criminal crime. In addition, the punishment of the crimes of soldiers violating military duties provisional rules 11 death penalty charges. At that time a total of 38 death penalty charges.

After the implement of the criminal law of 1979, aiming at the serious harm the social order of crime and serious damage to economic order crime was rampant, social reflect the actual situation of strong, in order to safeguard the people's life and property security, maintain social and economic order, guarantee the smooth progress of reform and opening up, the central government proposed the "strike hard" policy, to launch a nationwide "strike hard" campaign. The NPC Standing Committee has made a series of punishment for serious economic and seriously endanger public security crime decision or supplementary provisions, make supplements and amendments to the criminal law. Between 1982 and 1995, the NPC Standing Committee adopted the 22 amendment and supplement of criminal decisions or supplementary provisions, the new death penalty charge 33, responded to the strong demand at that time was very serious social security situation and requirements of the people to severely crack down on crimes. The 1997 amendments to the criminal code, the criminal law of our country, the provisions of the death penalty with a total of 71.

The 1997 revision of the penal code, whether to reduce the death penalty disagree. Some suggestions that China's criminal law, the death penalty charges too much, should greatly reduce the. There are some views that, starting from the actual situation in China, to reduce the death penalty should be very careful. 71 death penalty charges for specific analysis, considering the serious consequences of various crimes may be generated, the vast majority of the death penalty should not be abolished. Legislation on this issue many times held a forum, fully listen to the judicial organs and the relevant departments and experts' opinion, jointly with the relevant aspects of repeated studies, taking into account the social security situation is grim, economic crime is serious, do not have reduced the death penalty in the criminal law, in the spirit of not reducing does not increase principle on the death penalty provisions were made. The revised criminal law of 68 death penalty charges.

In recent years, with the development of society and economy, the deepening of reform and opening up, the construction of democracy and legal system advancement, and the need to deal with the international human rights struggle, to reduce the death penalty of renewed attention. Comparison of multi view: the present criminal law, the death penalty charges of death penalty; distribution of wide, criminal law consists of 10 chapters, in addition to the ninth chapter of crime of malfeasance is not stipulated in the death penalty, other chapters are the charges of death penalty; non economic aspects of violent death crime in the crime is larger, the criminal law would destroy the order of socialist market economy. Chapter, a total of 16 death penalty charges regulations, accounting for all the death penalty charges 24%. Non violent crime in criminal law crimes punishable by more than 40, accounting for more than 60% of the total number of the death penalty.

In 1998 China has signed the "United Nations Convention on the civil and political rights", sixth of the Convention provisions of the second paragraph of the death penalty applicable international standards: in the absence of the abolition of the death penalty state, sentenced to death is only for the most serious crimes. The meaning of "most serious crimes", the United Nations Economic and Social Council "on the protection of persons facing the death penalty right safeguard measures" the first rule: before the abolition of the death penalty state, sentenced to death is only for the most serious crimes should be understood as an intentional crime punishment, its scope should be less than lethal or other extremely serious consequences. The Secretary General of the United Nations in 2010 presented the global issue of the death penalty of five years to the United Nations Economic and Social Council (2004-2008) report, as of the end of 2008, the global abolition of the death penalty in law countries amounted to 95, and another 8 countries to abolish the sentenced for ordinary crimes. The 46 countries in the past 10 years has not been executed by the United Nations are classified as "the abolition of the death penalty in the country". Three a total of 149 countries. There are currently 47 countries retain and executed, accounted for only 196 of the 24% countries in the world.

(two) for the different opinions and reduction of death penalty

In the amendment draft is generally believed that the revision process, the central task in judicial reform, put forward "the appropriate to reduce the death penalty", reflects the progress of the rule of law, indicates that China's social stability, economic development, the construction of a harmonious society has made remarkable achievements, the rule of law steadily. Points out some judicial organs, 68 death penalty charges in the criminal law of our country, the practice situation since 1997 trial, half of the actual sentence the death penalty charges less than the total number of the death penalty. In other words, more than half of the death penalty in criminal law since 1997 has not sentenced to a penalty. In addition, from a practical point of view, for the death penalty deterrent to crime cannot be overestimated. In 2007, the death penalty approval by the Supreme People's court, the actual execution of death penalty cases approved by the sharp drop in the number of murders, but serious did not rise, but since 2006 has declined. The main reason is the comprehensive management of social control means, measures to improve the results, rather than the death penalty deterrent. The central task in our reform in the appropriate to reduce the death penalty, it is very timely, correct. Starting from the present situation, China does not possess the conditions to abolish death penalty, but the legislation to reduce the charges of death penalty, it is necessary, but also very practical. For the crimes of endangering national security, harm the interest of national defence and military crimes, taking into account the important and special interests, even though the chances of peace of death penalty is extremely low, there is still necessary to retain. Considering the importance and the people at the present stage of anti-corruption work requirement to punish corruption will need to corruption and bribery crime, also retain the death penalty. In addition to the crime, in principle does not harm the lives of citizens or for people with severe disabilities caused by crime, are not necessary to configure the death penalty. Suggestions can reduce about 20 kinds of death penalty to crimes.

Of course, to reduce the death penalty of the concerns of the community and the sensitive topic, there are also some departments to reduce the death penalty of crime have doubts may arise. Think that the death penalty is of great significance to punish and deter serious crimes done, social justice, maintain social order. At present, our country is in the people's internal contradictions, crime, fighting against complex period, maintaining social harmony and stability of the task is very heavy, must continue to adhere to the correct use of the death penalty punishment, to effectively curb the rampant criminal activities and the spread of the momentum. At the same time, the masses of the people "a life for a life" the retribution idea ingrained. These factors have decided our country for a long period of time has not significantly reduce the death penalty suitable conditions, suggest cautious attitude to reduce death penalty.

(three) to reduce some of the charges of death penalty should grasp the principles

China's current criminal law has 68 death penalty charges, to what standard to choose to reduce the death penalty charges? Reduce the number of charges of death penalty is appropriate? This is a question that needs careful consideration. After repeated research, that the reduction of the charges of death penalty should grasp the principles are: to the death penalty charges adjustment, not only to meet the needs of our economic, political, and social development situation, manifestation of China's socialist rule of law civilization and progress, to safeguard national security, social security, social stability and to consider and anti-corruption struggle, consider public acceptance psychology and society, in a step-by-step manner to make adjustments as appropriate. According to the actual situation of economic and social development and the social order, summed up in the judicial practice, in-depth investigations and studies, repeated to listen to opinions from all sides, after full argument, "criminal law amendment (eight)" to reduce the 13 non violent crime death penalty. The main consideration is: one is the death penalty, is according to the time of the need to combat crime provisions or increase. With the change of situation, has no need for these crimes apply to death penalty. To remove the death penalty, in accordance with the principle of cautious application of death penalty in our country has consistently adhered to the international trend and reduce death penalty. Two is in the cancellation of these crime death penalty, still retains the life imprisonment, the principle of suiting punishment to crime perspective is appropriate, can do well deserved punishment. Three is in recent years these crimes in practice has not been applied or less application of the death penalty, abolished the death penalty, will not impact on crime.

"Criminal law amendment (eight)" 13 non violent crime death penalty charge cancellation is: the crime of smuggling cultural relics, the crime of smuggling precious metals, precious, precious animal products animal smuggling crime, crime of smuggling ordinary goods,, the bills defraud crime, crime of financial certificate fraud, credit card fraud, forging VAT invoice, for defrauding export tax rebates, tax invoices, forge, sell forged special invoices for value-added tax crime, the crime of theft, crime of imparting criminal methods, robbing ancient cultural sites, ancient tombs sin, robbing ancient human fossils, ancient vertebrate animal fossil crime. To abolish the death penalty charges now account for 19.1% of the total number of the death penalty.

The process of soliciting opinions to the nation in the draft, many departments, local, legal experts claim that reduced the death penalty can take bigger steps. A further reduction in the death penalty proposal, views are more concentrated is advocated to reduce the following crime death penalty:

1 the organization prostitution crime. A kind of viewpoint thinks, the organization prostitution crime as "organizing others to provide paid service", it is mainly the prostitution will women organization together, forming a prostitution ring, set the prostitution dens or prostitution prostitution network and provide conditions for them, in the nature of the crime belongs to the obstruction of the morals of crime, major the loss does not usually caused the victim's death or public property. From the principle of suiting punishment to crime point of view, the crime of organizing prostitution without the death penalty. If the behavior in the organization of prostitution, contrary to be true will of the organizers, forced prostitution case, it shall be investigated for criminal responsibility in accordance with the forced prostitution. If the criminal is in a non violent way to organize the prostitution of others, but also to the violence and assault mode forced prostitution, can be regarded as the crime of organizing prostitution and forced prostitution crimes. If the circumstances are especially serious, can go to the death penalty, still can give the effective punishment of criminals.

Another view, at present our country the organization prostitution crime is rampant, and some even organized prostitution of girl, organize domestic women outside of prostitution, the harm is extremely serious, such as the abolition of the death penalty, will weaken the criminal deterrent effect, effect of the crackdown, is not conducive to the protection of the legitimate rights and interests of women, especially young girls, don't to maintain the image of our country, proposed to continue to retain this crime death penalty.

2 the crime of transporting drugs. One view is that, according to the provisions of article 347th of the criminal law, the crime of transporting drugs smuggled, trafficked and sentencing standards, making drugs the same. Drug transport crime is smuggling, trafficking, narcotics crime auxiliary link or means, with subordinate, auxiliary features in the whole drug crime, the social harmfulness and smuggling, trafficking in, such as the source of manufacturing drugs crime significantly different. In judicial practice, the crime of transporting drugs accounted for 1/3 of drug crime death penalty. The act of the crime are mostly employed, directed by the poor, border, the pregnant women and the unemployed. They are not drugs owners, not the biggest profit, many out of poverty or the inducements to earn a small amount of freight, subjective malignant is generally small. The criminal policy of combining punishment with leniency of the applicable standards of the death penalty, the crime of transporting drugs should be differentiated and smuggling, trafficking in, making drugs.

Another point of view, the current situation of drug crime in our country is serious, to maintain a high pressure situation of drug crimes, the crime of transporting drugs should not be abolished the death penalty. A crime and crime of transporting drugs, smuggling, trafficking, manufacturing is the crime of transporting drugs, even if the cancellation of drug transport crime death penalty will not reduce the total number of death penalty charges. If you want to control the crime of transporting drugs to death, not necessarily to amend the criminal code, can be realized through the judicial control.

3 fund-raising fraud. A kind of viewpoint thinks, from the nature of the crime, the crime of fraud is non violent and economic crimes two salient features, which makes between the crime and the death penalty is lack of equivalence between the rational, not to deal with crime of fraud of retaining the death penalty. From the crime reasons, fraud victims for illegal fund-raising behavior itself usually have a certain understanding, but mostly in the greed, speculation will be their own property to fraud, its itself also has some fault, for the crime of fraud do not apply the death penalty is also in line with the practice of criminal justice there are obvious fault on the victim's crime is generally not crime death penalty in judicial practice. From the relationship between the crime of fraud and other similar crimes, the crime of financial fraud balance of retaining the death penalty to keep this crime and other similar crimes. "Criminal law amendment (eight)" to cancel the bills defraud crime, crime of financial certificate fraud and credit fraud crime death penalty, alone to keep fraud of the death penalty, not unified in the legislation of death penalty abolition will cause financial fraud crime standard. In fact, the consequences of other fraud crime can be achieved even more than fraud death penalty required of harmful consequences, in this case, only to retain the death penalty, the crime of fraud, will become more prominent in the legislation on the crime of fraud and other fraud crime punishment unbalanced.

Another view, the financial fraud crime belongs to the stakeholders, the victim is usually a number more, larger social impact cases, but at present and the trend of high incidence, serious impact on social stability. Still need to maintain high-pressure situation at the present stage, it is necessary to retain the death penalty.

The legislature to solicit the views of all parties after repeated research thinks, reduce death penalty to steadily push forward, taking all factors into account, the death penalty is a less too. "Criminal law amendment (eight)" to reduce 13 of death penalty to crimes, has already announced the country to seriously consider the death penalty reduction, strict in judicial practice "judicial control and cautious application of death penalty," has an important guiding significance will, according to the actual effect of the death penalty should be reduced and the effect on crime, and to advance our country reduce death penalty process. Therefore, no additional reduction of death penalty.

Two, the penalty structure adjustment

The central issues about deepening the reform of judicial system and working mechanism of the views put forward: "perfect the death penalty law. Appropriate to reduce the death penalty charges, there is no relationship between the adjustment of structure of prison and prison, death penalty. Establish a strict death sentence with a reprieve, life imprisonment execution system, clear the suspension of execution of death penalty and imprisonment sentence criminals should be executed after the actual."

In the process of legislation, judiciary, legal experts pointed out that, at present, is sentenced to the immediate execution of death penalty, the death penalty was suspended for two years, life imprisonment and imprisonment of criminals in the actual implementation, there is "the death penalty, punishment is too light, heavy and two days" penalty weight imbalance. Main show is in: one is the severity of the death penalty and the actual implementation of the death sentence with a reprieve, no sentence sentenced to severe degree of difference; two is the death penalty criminals are generally the most serious crimes, in accordance with the principle of suiting punishment to crime, with the actual implementation of the sentence should generally not be less than the actual execution of the sentence to life imprisonment, but in the actual execution of the sentence, made average to be executed and life imprisonment prisoners executed may not much difference between the average; was sentenced to life imprisonment criminals in prison than criminals to be more serious, the actual implementation of the sentence should not lower than the prison committed; but the actual execution of the crime and punishment, life imprisonment has been convicted of the actual implementation of the prison committed twenty years basically the same. Because the legal provisions of the lowest serving term sentence of life imprisonment is too low, leading to life imprisonment and death did not exert severe proper practice, defects caused by dynamic penalty structure. Reprieve, no criminals sentenced guilty of actual prison time is too short to return society, not in conformity with the principle of suiting punishment to crime, also poses a threat to the social order, it will cause serious dissatisfaction of the masses and uneasy.

The legislature on the basis of deep research, in the aspects of adjusting the penalty structure on the relevant provisions of the criminal law the following modifications.

(a) to strictly limit the criminal sentence sentence

The criminal law fiftieth stipulation: "sentenced to death with a suspension of execution, the execution period, if not intentional crime, after the expiration of two years, to life imprisonment; if there are major meritorious service, after two years, reduced to fifteen to twenty years in prison; if the intentional crime, the verified, approved by the Supreme People's court, execution."

To understand the legislative investigation, in recent years, the original sentence offenders released the national prison system, the average prison sentence of 16 years and 2 months; parole sentence with the average prison sentence of 15 years and 9 months. The release of the national prison system or life imprisonment, the average sentence of 14 years in prison for 9 months, was released on parole sentence without period the average prisoner serving a term of 13 years and 10 months. From the above statistics can be seen, the criminal and the original sentence of life imprisonment average prison sentence was less than 2 years or life imprisonment; jail term is short, and the criminals sentenced to time served no distance. According to statistics, from 2007 to 2009, approved the death penalty in all reported cases, the defendant at the age of 18-30 years of age accounted for 1/2. This means that if a 25 year old guilty of a felony, was not sentenced to death immediately and was sentenced to two year stay of execution, in accordance with the current actual average prison sentence, which was about 40 years old still standing strong when they can return to the society. Not only will give the masses a huge sense of insecurity and fear, enormous pressure on social security, it is difficult to appease the victim, to meet the public expectation for the justice of penalty.

In order to solve the problem of death, death with reprieve, life imprisonment and a penalty term in the actual implementation of the imbalance. "Criminal law amendment (eight)" in article fiftieth of the criminal law of criminal penalty reprieve made the following modifications:

1 dead slow criminals in execution period has major meritorious service, after a period of two years, by the provisions of the original "reduced to fifteen to twenty years in prison for" change "to fixed-term imprisonment is twenty-five years," improve the execution to fixed-term imprisonment is counted.

2 add "to be sentenced to death with a two-year suspension of execution, a criminal element sentenced to recidivism of death sentence with a reprieve for intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime, the people's court according to the circumstances of the crime prescribed in the decision on the penalty", clearly the 9 sentenced to death for crimes in two year stay of execution after the expiration of the restrictions on commutation can be "". This paragraph contains two meanings: (1) the "limits the sentence" the object. Includes two categories: the first category is the criminal was sentenced to death with reprieve recidivist, recidivist but was sentenced to death penalty is not on the list of other. According to the "criminal law amendment (eight)" the revised article sixty-sixth of the criminal law, the provisions of article eighty-first, recidivism in addition to the ordinary recidivist, also includes "from the criminal crimes of endangering national security, terrorism, organized crimes of the underworld, after the execution of punishment is completed or pardon, special recidivism at any time to make any one of the above crimes"; second were sentenced to death because of some serious crimes listed criminals, namely "for intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime were sentenced to death with a two-year suspension of execution of criminals" (2; ") if the people's court decides to criminal penalty" has considerable discretion. According to the provisions of this article, even belong to the former two kinds of cases sentenced to death criminals, not in the two year stay of execution period is reduced to fixed-term imprisonment, life imprisonment or twenty-five years later, will limit the commutation, if need to limit the commutation by the court in the case of a judgment according to the criminals and other specific where the decision.

(two) extended was sentenced to life imprisonment, with the lowest real criminal sentence after sentence

How will the death sentence with a reprieve, life imprisonment sentence, structure and severity maintained at a reasonable level, is a problem to adjust the focus on the structure of penalty. From the current situation, sentenced to death or life imprisonment, the actual implementation of the overall short term. About what ways to extend was sentenced to death with reprieve, life imprisonment sentence the lowest real criminals after the sentence has two views: a viewpoint, should increase a sentence in prison, generally improves the actual implementation period was sentenced criminals, the actual execution time is pulled big reprieve, life imprisonment distance. After the sentence for sentence to be forty to fifty years or even longer. So, if the above the actual implementation of the original term of 1/2 calculation, the criminals in actual sentence commutation time can reach twenty to twenty-five years. Another view, greatly improve the maximum statutory sentence in prison, changes to the structure of penalty. If the universal extension of all, no criminals sentenced to death in prison execution period, is not conducive to carrying out the criminal policy of combining punishment with leniency, easily lead to new social contradictions; the actual implementation, was sentenced to death with reprieve, life imprisonment of ordinary criminals were released after the elimination of social risk, ratio crime is relatively low, there is no need to extend the common jail term; considering the maximum sentence has been mentioned for twenty-five years, to keep in prison, life imprisonment minimum actual execution duration of the balance, to be sentenced to imprisonment of ordinary criminal actual jail term can be a little longer, not in prison sentence to make a big change, to maintain the basic stability of the penalty structure. Taking into account the "criminal law amendment (eight)" is one of the key to solve for the recidivism and intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime were sentenced to death with reprieve, life imprisonment, criminal execution period is too short, different problems and implementation the death penalty immediately, in order to better reflect the principle of suiting punishment to crime, to greatly increase the actual part of this criminal jail term, is necessary. "Criminal law amendment (eight)" adopted the latter opinion.

"Criminal law amendment (eight)" in the second paragraph Seventy-eighth of the criminal law will be amended as: after commutation the actual implementation of the sentence of not less than the following: (a) the term "sentenced to public surveillance, detention, are to be sentenced to not less than the term originally decided, 1/2; (two) sentenced to life imprisonment, not less than thirteen years (; three) Criminal Court stay of execution in accordance with this law, the provisions of the second paragraph fiftieth restrictions on commutation of the death penalty, after the expiration of the period of suspension of execution shall be reduced to life imprisonment, not less than twenty-five years, after the expiration of the period of suspension of execution shall be reduced to twenty-five years in prison, not less than twenty years."

"Criminal law amendment (eight)" to be sentenced to penalties under the criminal sentence after the implementation of the deadline does not change, but to be sentenced to death with reprieve, life imprisonment after commutation, the actual implementation of the deadline to make special provisions: (1) the minimum duration will be sentenced to life imprisonment, criminal sentence after the actual implementation of the past by not less than ten years to not less than thirteen years; (2) the provisions of the second paragraph of article fiftieth of the criminal law 9 sentenced to death penalty criminals sentenced to death, the recidivism and murder, rape, robbery, kidnapping, arson, explosion, throwing dangerous substance or organized violent crime was sentenced to death with reprieve, after the expiration of the period of suspension of execution shall be reduced to life imprisonment, the actual implementation of the minimum period of not less than twenty-five years; after the expiration of the period of suspension of execution shall be reduced to twenty-five years in prison, the actual implementation of the minimum period of not less than twenty years.

It should be pointed out that, the provisions of this article is the minimum period of commutation must perform the actual criminals in prison establishments, this does not mean that as long as the actual Prison Criminals to the lowest limit, can be released from prison. If the violation of prison rules, resist transformation, even if the actual serving to the lowest limit, also should be in jail. The actual implementation of the criminal sentence, should follow the principles of the provisions of this article, according to the criminals to accept education and reform and other circumstances to determine.

(three) an extension of the minimum real paroled criminals in prison

In order to solve the problem of death, death with reprieve, life imprisonment and a penalty term in the actual implementation of the imbalance, "criminal law amendment (eight)" to article eighty-first of the criminal law is amended as: "a criminal element sentenced to fixed-term sentence, the implementation of the above sentence sentence 1/2, was sentenced to a criminal sentenced to life imprisonment, the actual implementation of more than thirteen years, he conscientiously observes prison regulations, accepts education and reform, shows true repentance, there is no danger of re offending, may be granted parole. If there are special circumstances, with the approval of the Supreme People's court, can not subject to the restrictions relating to the term executed."

"Recidivists and for intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime was sentenced to ten years in prison, criminals sentenced to life imprisonment, without the possibility of parole. The parole of criminal decision, should consider its release on parole on the community impact."

"Criminal law amendment (eight)" in article eighty-first of the criminal law amendment mainly as follows:

The 1 expanding "parole". In 1997 the provisions of the criminal law on the recidivism and for intentional homicide, rape, robbery, kidnapping, explosion and other violent crimes was sentenced to ten years in prison, life imprisonment without parole, "criminal law amendment (eight)" will not be paroled scope expanded to "due to arson, release of hazardous substances or organized violent crime was sentenced to ten years in prison, life imprisonment of criminals". Here the "organized violence crime", refers to violent crime to crime organization implementation, such as the crime underworld organization, the terrorist organization, the implementation of the violent crime; the so-called "violent crime" includes not only the crimes enumerated in this article, but also includes other violence in particular, or no specific person aggrieved, deliberately endanger personal safety of crime.

2 extended was sentenced to life imprisonment sentence, parole criminals minimum actual sentence. The criminal element sentenced to life imprisonment, the lowest practical implementation from ten years to thirteen years. The main consideration of this rule is that, on one hand in order to safeguard the seriousness of law, ensure the criminals sentenced to get the necessary transformation, only in the criminal was sentenced to the practical implementation of a sentence, after the transformation of a period of time, organs and judicial organs to determine whether risk of criminal execution on the other hand, also easy; life imprisonment and punishment sentence to twenty-five years after the actual minimum execution time of phase equilibrium.

It should be pointed out that the provisions of this article, the minimum period just criminals in prison parole before must be practical, not as long as the actual prison time reached the minimum period, criminals can be on parole. On whether the offender parole, depends on whether they comply with the prison regulations, accepts education and reform, a comprehensive evaluation of true repentance, no criminal risk factors.

3 add "parole of criminal decision, it should consider its influence on parole after" the provisions of the residential community. The parole is for criminals to meet certain conditions, in the execution of a sentence, conditional to a system of early release of its. Adverse effects help reduce long-term imprisonment of offenders return to society caused by this system. In general, the criminals are on parole should be returned to the original residence community, they will affect the original community, if criminal broke up after the parole of residential community is not good, it will influence their social integration, and even induce a new crime, is not conducive to the stability and peace of society. Therefore, the "criminal law amendment (eight)" the provisions on the crime increase parole decision, should consider its release on parole on the community impact.

(four) increasing punishment sentence

Our country criminal law sixty-ninth stipulation, the combined punishment for several crimes carry a penalty of not more than twenty years. In some legislation, judiciary and legal experts, this provision in general can adapt to the needs of judicial practice, to punish, to educate and reform the criminal purpose. But in the judicial practice, there are also some problems, mainly, if a criminal offense a crime, each sin were each sentenced to long term in prison, punishment will appear after the actual execution of the sentence is too short, criminals make little difference between a crime and several crimes final penalty, to embody the principle of suiting punishment to crime. Especially in the crime crackdown special struggle, some black evil gang activists, mostly committed more crimes, crimes of sentences for up to seventy or eighty years in prison, but if can be sentenced to life imprisonment in the crime committed no crimes, highest penalty is twenty years in prison, punishment not enough. Suggestions will have a statutory maximum sentence in prison and combined punishment for several crimes increased to twenty-five or thirty years.

Also has the judiciary and legal experts think, China's felony repeat rate is low, no general improvement in prison and the urgent need for sentence. In the criminal law of our country all felony, maximum punishment are prescribed to more than ten years, life imprisonment or the death penalty. If even a life imprisonment crime are not committed to prison, and combined punishment for several crimes penalty greatly, will bring the imbalance problem, no need to raise a combined punishment for several crimes.

The legislature in repeated studies to the views of all parties, "criminal law amendment (eight)" on the sixty-ninth major made the following modifications:

1 the combined punishment for several crimes after the maximum sentence of life from twenty years to twenty-five years, to crack down on some kinds of crime, sentenced to the sum of the sentence is very high, but not convicted of felony offenders. In the "criminal law amendment (eight)" for the process of soliciting opinions, opinions and suggestions to delete "fixed-term total term limits in thirty-five years", directly will have to raise the ceiling for life to thirty years, thirty-five years or even longer. The study suggests that, in general, the combined punishment for several crimes have limits in prison for twenty years, can meet the requirements of punishment and reform of criminals. From the analysis of the judicial statistics, the implementation of more than ten years in prison with ratio of criminals after the punishment has been completely executed the crime is very low, it basically achieved the purpose of punishment. If the unity will have the punishment of fixed-term period extended to twenty-five years, to be large, there will be a large part of the criminal execution period extended to twenty years, in the implementation of shorter prison is sufficient to realize the purpose of penalty circumstances, generally extend the penalty period will have the problem of excessive punishment, not for the criminals return to society, will also increase the regulatory implementation and execution cost pressure. Based on the above considerations, the legislature to distinguish different situation, and for a few crimes are serious, are to be sentenced to more than thirty-five years the total sentence in criminal crimes, maximum limit was extended to twenty-five years; the total term of less than thirty-five years, the number of crimes ceiling unchanged. In this way, not only can better reflect the principle of suiting punishment to crime, and prevent the occurrence of common extended sentence.

Problems in the implementation of the additional penalty in the crime were sentenced to 2 pairs of further regulation. The 1997 criminal law, crime has a supplementary punishment is imposed, the supplementary punishment shall still be executed. But how the additional penalty of different execution not specified. "Criminal law amendment (eight)" on the amendments, mainly in order to be more additional punishment to punish the problem clearly in practice. This amendment stipulates: "the number crime in a supplementary punishment is imposed, the supplementary punishment shall still be executed, which combined to perform additional penalties of the same kind, different kinds of, respectively, the execution."

Three, improve the legal system of leniency, the applicable rules of non imprisonment punishment

(a) to perfect the elderly and the minor crime leniency

The central issues about deepening the reform of the judicial system and working mechanism reform of the views put forward: "to explore the establishment of legal mechanism on the elderly crime appropriate leniency, clear the conditions, scope and procedures."

1 to perfect the elderly crime leniency. Article seventeenth of the criminal law, the minor crime, shall be given a lighter or mitigated punishment. For the elderly crime, criminal law makes no provision for leniency. In recent years, the judicial authorities and experts and scholars put forward many, care for the young is the traditional virtue of Chinese nation, our country in the early Western Zhou Dynasty laws have provisions for elderly crime punishment, after the Han, Tang, Ming, Qing Dynasties to the period of the Republic of China formed a relatively complete system. With the progress of social civilization, formulate the corresponding provisions for elderly crime punishment in the law, but also present in many countries, the criminal law of our country should also be provided.

In the legislative research, some judicial organs and legal experts proposed to increase "has reached the age of seventy to the crime in the criminal law, the provisions of the lenient punishment", the main reasons: the first one is about the identification and the ability to control their own behaviour, a person to the elderly, the responsibility of the ability to have a weakening even the failure process, the elderly criminal responsibility for his crime commitment should be different and young people; the two is from the modern penalty goal point of view, the elderly crime, in addition to transformation of the recidivist and repeat offenders, the less harmful to society. Harsh punishment for the elderly, neither to deter the society unstable molecules, is also difficult to obtain public understanding and support, general prevention effect of punishment is not ideal; three is due to the crime of elderly people advanced in age, plus its capability and other factors, reduce the likelihood of their implementation crimes again, personal dangerousness was smaller than adolescents and adults. In order to reflect the principle of distinction, it is necessary to elderly crime punishment leniency, this is also the lenient and severe criminal policy meaning and requirement.

The legislature to solicit a deputy to the National People's Congress, the judiciary, the public and the views of experts and scholars, believe that overall, treatment on the elderly crime appropriate leniently, will not affect the social order, but also conducive to embody the criminal policy of tempering justice with mercy. On the basis of investigating, increase the provisions relating to elderly crime punishment. "Criminal law amendment (eight)" one article is added in article seventeenth of the criminal law, as one of seventeenth: "the full seventy-five years of age who intentionally the crime, may be given a lighter or mitigated punishment; criminal negligence, shall be given a lighter or mitigated punishment." Here the provisions of the "crime", refers to the criminal law fourteenth stipulation "knowing that their actions will cause socially dangerous consequences, and wishes or allows such consequences to occur, thus constituting a crime". "He may be given a lighter or mitigated punishment", is simply according to the specific situation of the elderly crime, discretion to decide whether a lighter or mitigated punishment. "Criminal negligence" is refers to the criminal law fifteenth stipulation "should foresee own behavior may cause socially dangerous consequences, because negligence and do not foresee, or have already foreseen but trust can be avoided, so that the results of the". "Shall be given a lighter or mitigated punishment" refers to the elderly criminal negligence, shall be given a lighter or mitigated punishment.

The elderly crime leniency to rules for good, is one of the problems in the process of legislation of the debate, mainly concentrated in two points: one is the age boundary problems of the elderly. Some put forward, our country senior citizen rights and interests protection law has clearly stipulated, "the elderly refers to a citizen aged sixty or above", suggested that the elderly crime lenient age line in sixty years. Also some paper, it raised the standard of living, life expectancy has more than seventy years of age, suggestions on seventy years of age, some eighty years of age. The legislature integrated views of all sides, at the same time, considering the physiological characteristics of the elderly, the elderly crime situation and the acceptance of the public, the elderly crime lenient age line in seventy-five years. Two is the scale for elderly crime punishment, is the elderly crime will be lenient, or to differ. Some ideas are put forward, the elderly crime will be lenient will not affect social order. Another opinion, the elderly although weakened, but the social experience, life experience, should abide by the law, crime will be lenient. The legislature after the comprehensive research of the views of all parties, for elderly crime punishment made different rules: "intentional crime, may be given a lighter or mitigated punishment; criminal negligence, shall be given a lighter or mitigated punishment". Such regulations, embodies the principle of suiting punishment to crime, is conducive to maintaining social order, for the subjective malignant large intentional crime, the lenient measure more strict, the subjective malignant small negligence crime provides a wide scale.

2 of the elderly do not apply the death penalty. In the process of legislation, judicial organs and legal experts, should be clearly defined in law, to seventy years of age or older do not apply the death penalty, the main reason is: one is for the elderly offenders do not apply the death penalty to conform to the requirements of the criminal policy of the death penalty restriction. "Strict control and careful application of the death penalty" is the death penalty policy of our country has consistently adhered to strictly limit the important content, is also restricting the application of death penalty in the suitable object of death penalty. Disable the death penalty for more than seventy years old, is to adapt to the requirements of the times, the rational choice of restricting death penalty; two elderly people over the age of seventy to the non violent crime, the probability of serious criminal offense should be sentenced to death in the very low. Therefore, for more than seventy years of age the elderly criminals do not apply the death penalty, big impact to not judicial practice in our country, not only will not impact the current judicial system, and will improve our judicial international image; three is to disable the death penalty for the elderly over the age of seventy, which is the ethical spirit of criminal law.

The "criminal law amendment (eight)" at the time of trial has attained the age of seventy-five years to increase the "death penalty," not applicable ", like the elderly crime lighter or mitigated punishment", has aroused a heated discussion in the legislative process, mainly focuses on two issues: one is to much age of the elderly do not apply the death penalty. "Criminal law amendment (eight)" the provisions for seventy-five years, the main consideration is the front has been elucidated, linked also in accordance with Article seventeenth of the criminal law of the lenient punishment of age for the elderly. The two is whether the year full seventy-five one full year of life of the elderly will not apply the death penalty. Some members of the NPC Standing Committee and the people put forward, penalty should be considered a crime situation, although some offenders under the age of seventy-five, their physical, intellectual, in good spirits, such as by especially cruel means killing people, and social influence is extremely bad, if not to apply the death penalty, it is difficult to adapt the practice of complex situation recommendations are provided for the elderly, do not apply the death penalty should not be too absolute, want to leave adequate leeway.

The legislature to solicit a deputy to the National People's Congress, the judiciary, the public and the experts' opinion, after repeated research, decided in the criminal law of the forty-ninth paragraph is added as the second paragraph: "the time of trial has attained the age of seventy-five years, the application of the death penalty, but especially cruel means death caused exception."

The provisions of this paragraph of "judgment day has attained the age of seventy-five years", is in accordance with the provisions of the criminal procedure law, in the court proceedings in the case when the defendant has over seventy-five years of age. "By especially cruel means death" refers to make one's hair stand on end means, such as lead to the dismemberment, cruel, destructive appearance, the removal of human organs be brutal and inhuman means death to the victim. This paragraph does not apply the death penalty, including the death penalty execution.

In the legislative process, some opinions will "judgment day has attained the age of seventy-five years" to "when the crime has attained the age of seventy-five years", the reason is, if a person commits a crime Qishiersan years old, in the investigation, prosecution stage try various devices to delay the proceedings, to seventy-five years of age before entering the trial the program, you can't judge death, escape from death to not easy to succeed? To account for the full seventy-five years of age were not sentenced to death mainly embarks from the humanitarian perspective, every year, over the age of seventy-five crime less and less, the death sentences of less. The national court in recent years only to spend at least seventy years old or older in death penalty cases, criminals also has not reached seventy-five years old. Therefore, the age limit in the "trial" is reasonable; moreover, about the age of seventy-five years of age who do not sentenced to death are not sentenced, speak from a certain meaning, sentenced to life imprisonment for criminals in prison process center guilty slowly died for him, perhaps more pain, and not indulgence criminals.

In the draft and review process, some people worry that, if the provisions for years he attained the age of seventy-five years, some criminal organizations may be specialized to hire people over the age of seventy-five to the crime, some of the elderly may seize the loopholes in the law, be without scruple the ground for various crimes, will have negative consequences very serious. But some people do not agree with this view, think that this view is based on people's subjective, not criminal law to crime control in criminal law, crime is not provided no death penalty to choose whether to crime. If according to this logic, the criminal law of our country has stipulated for people under eighteen years of age is not sentenced to death, some criminal groups may also be employed exclusively in people under eighteen years of age to the crime, thus infer for people under eighteen years of age should be sentenced to death, is obviously wrong.

3 relaxation for a crime over the age of seventy-five elderly, minors probation. The problem of our country in 1997 Criminal Law on the crime of the elderly, minors did not make special provisions, many judicial organs and legal experts, on the basis of the probation system perfect, can relax appropriately to the crime the elderly, minors probation, will greatly reduce the prison execution organs of pressure, not only to save the judicial resources, criminal law reflects the weak humanitarian concern, but also make it not from the society, education and reform the help and supervision in the family, grass-roots organizations, not only can obtain good effect, but also conducive to social harmony, stability.

"Criminal law amendment (eight)" in article seventy-second of the criminal law revised: sentenced to detention, the following three years there are criminals in prison, comply with the conditions of probation at the same time, suspension of sentence may be pronounced, "the people under eighteen years of age, pregnant women and has seven fifteen years probation, shall". For the general subject, in accordance with the applicable conditions of probation, the law can be placed on probation, give the judge a discretion, the judge according to circumstances of the case and the criminal personal decision probation, may also not applicable probation. However, in line with the conditions of probation under the age of eighteen and has attained the age of seventy-five years, the law should probation, as long as the applicable conditions of probation, you should apply probation, embodies the minors and the elderly crime special legislation spirit.

The 4 increase in juvenile crime does not constitute recidivism provisions. In order to further implement the criminal policy of combining punishment with leniency, according to education, supplemented by the principle of punishment, to explore the treatment of minors in criminal judicial system. Taking into account the minor's physical and mental development is not yet mature, the juvenile delinquency better embody the education to save the policy that give priority to, so that they can receive a better education and reform, for their future smooth integration into the community service society, become a useful material, in the Criminal Law added on juvenile crime does not constitute recidivism provisions. "Criminal law amendment (eight)" to Article sixty-fifth of the criminal law is amended as: "a criminal element sentenced to fixed-term sentence or more severe punishment, punishment is finished or pardon, within five years shall be sentenced to more than make a punishment of sin, is a recidivist, shall be given a heavier punishment, but negligence crime and dissatisfaction the age of eighteen crimes except." That is to say, in addition to other conditions meet the recidivist, crime must be aged eighteen years or more in the former and latter crimes when committed. If before committing crimes is a minor under the age of eighteen, even if guilty of sin has over eighteen years of age, nor does it constitute recidivism.

5 get rid of crime under the age of eighteen was sentenced to the penalty of criminal record reporting obligations for five years. Minors in physical, mental development process, have certain discrimination and the ability to control their own behaviour, but because of its short, less social experience knowledge, their level of maturity are different from adults, so for the criminal record and adult juvenile when the criminal record should be treated differently. For juveniles with minor criminal records, if they joined the army, employment truthfully report he had criminal punishment situation, may cause difficulties for their admission or employment, has a negative impact on their life development. In order to carry out the criminal policy of combining punishment with leniency, reflected on the minor crime and education, supplemented by punishment, focusing on education, save and reform policy, legislative suggestions according to the National People's Congress and the relevant departments, the exemption of minors special terms record report obligations of the increase in the criminal law. "Criminal law amendment (eight)" in the 100th in one paragraph is added as the second paragraph: "when he committed the crime under the age of eighteen was sentenced to the penalty of five years, exemption from the provisions of the preceding paragraph reporting obligations."

According to the provisions of this paragraph, exemption from criminal record reporting obligations must meet the following conditions: (1) when he committed the crime under the age of eighteen. Both the army, the employment of minors under the age of eighteen, including the army when the job is full already eighteen years old adults, as long as the crimes under the age of eighteen, constitutes one of the provisions of the conditions; if the crime at the age of eighteen years of age who, not exempted from reporting obligations; (2) the crime is sentenced to punishment for sequentia the sentence of five years. Including was sentenced to five years in prison, the following detention, control, a single additional penalty and probation.

Of note, the above two conditions must also have to apply the provisions of this paragraph, a crime under the age of eighteen who was sentenced to five years or more punishment, not exempt from reporting obligations. Such provisions, is considered to be sentenced to five years in prison under penalty of crimes are lighter, does not belong to the crime of endangering behavior especially serious. A juvenile commits the crime is often due to a lack of self-control, impulse or other adverse factors, the minor crime the general subjective malignant is small, easy to accept education and reform. Exempt from obligation of report is mainly to the minors once fall into a wrong path, the path of crime is painful to the negative effects of selecting correct life path of development to a minimum, to encourage and to start a new life, to the people, be a useful person to the society.

In the drafting and review process, there are views, the juvenile crime is on the rise in crime, and the trend of younger age outstanding, blindly adopt lenient attitude is not conducive to play the role of criminal law on crime prevention. Study on the legislative thought, juvenile delinquency rate is a realistic problem of our society, the reasons for this phenomenon are various, the prevention of juvenile delinquency is not penalized, but from education and social environment governance, eliminate the factors may cause adverse effects on juvenile. For juveniles with minor criminal records, exempt from the criminal record reporting obligations has beneficial effects on them from a criminal record, to prevent the "label", and help them return to society.

(two) to further clarify the applicable conditions of probation

The criminal law seventy-second stipulation: "sentenced to criminal detention, the following three years there are criminals in prison, according to the circumstances of the crime and the performance of repentance criminals, probation does not cause further harm to society, to probation." Probation is of great positive significance for probation, save and transforming criminals, resolving social contradictions. From the practice of these years, the probation system design is good on the whole, embodies the criminal policy of combining punishment with leniency, will help to resolve social contradictions, but also conducive to the criminals return to society, but the system has some problems in implementation. The judicial authorities reflect, probation system has the following main problems in implementation:

One is the probation applicable standards are not clear. In judicial practice, due to the "crime", "repentance", "did not cause further harm to society" and the understanding of the relationship between the controversial, difficult to grasp, leading to the court in the application of the difference. Especially the substantive provisions of criminal law will apply probation conditions for "not do harm to the society", "really" a word on the accuracy of the judge's proposed mandatory standards, a variety of factors induced crime is diverse and many uncertain factors, to ensure that the judgment through a loss really difficult, to re crime possibility judgment as substantive conditions applicable to probation.

Two is the probation cases of narrow range. Criminal law only provides for the general criminal probation, advice shows special protection to the minors including specific groups of students, more than seventy years old, the disabled, pregnant or lactating women in probation object. Danger itself less this kind of criminals who belong to vulnerable groups, so called, in a humanitarian spirit, should be given special protection.

Three is the lack of clear rules prohibit or restrict the probation of offenders. As for the implementation of the crime of endangering national security, terrorism related crime, underworld crime, should not apply the probation.

The legislature to solicit the views of all parties, and repeated study, "criminal law amendment (eight)" in article seventy-second of the criminal law on the condition of probation for three changes:

1 pairs of probation conditions further improve, concrete. "According to the circumstances of the crime and the performance of repentance criminals, probation does not cause further harm to society" is amended as "at the same time with the circumstances of the crime is lighter", "repentance", "there is no danger of re offending", "Probation on the residential community has no significant influence not good" four conditions, the original abstract probation conditions specific, easy to grasp the details in court sentenced to probation. The so-called "small offences" refers to the behavior of crime people is not serious, the circumstances of the crime is not bad; "repentance" is refers to the criminal in the crime to recognize errors, sincere regret and repent of will and behavior, such as positive to the apology, compensation for the victim's loss, obtain the victim understanding; "dangerous" no crime refers to the criminal probation no crime possible; "Probation on the residential community has no significant adverse effects" refers to the criminal probation is not the living community safety, order and stability have significant adverse effects, reality the specific circumstances, by the judges on a case by case basis to judge. Four conditions of probation must have at the same time, indispensable. If according to the specific circumstances and the criminal cases of performance, not held not the education transformation or prevent the crime, can not apply the probation; although no longer has criminal crimes, but was sentenced to the punishment of more than three years in prison, also cannot apply probation.

In the "criminal law amendment (eight)" the drafting and review process, there is a view that the provisions of this article. "There is no danger of re offending" conditions of subjective judgments of the color is too strong, easy to cause the judges discretionary arbitrariness. The legislature by the study, social risk standard is a basic standard to judge the world to probation, for whether a suspect has the social risk criteria, and there is no absolute objective, deterministic, and can only be judged by the judge according to the circumstances of the case. The judge should according to the specific situation of the case and the criminal, considering all the factors, if the criminal "no crime risk", that is consistent with no social risk judgment standard. There are suggestions that will "probation, the community live without significant adverse effects" as one of the conditions of probation, may make the judge whether to probation decided largely by the opinions of community, thus affecting the probation application. Study on the legislature, the conditions of probation is basing on the reality of social development in our country, benefit from the regulation and transformation of criminals, have a good angle to community residents can live and work in peace to. Therefore, in the application of probation system, should not only consider the personal condition of the accused, but also consider the influence of probation for community, otherwise it can not achieve the probation of purpose and social effect. Of course, the adverse effects on community caused "major" can become must not applicable probation conditions, if applicable only in general the impact is not affecting probation.

2 to meet the conditions of probation special objects to make special provisions. Clearly defined in accordance with the conditions of probation people under eighteen years of age, pregnant women and people seventy-five years old and above, shall be declared probation, make up the criminal law provisions made no shortage of special provisions on special object in line with the conditions of probation.

3 judge criminals on probation can attach the prohibition provisions. In order to maintain social stability, protect the victims, witnesses the personal safety, at the same time in order to help the application of probation criminals to start with a clean slate, prevent the crime, the provisions of this article shall judge can use injunction way, for a criminal whose sentence is suspended in the test period of slow penalty for certain constraints. The people's court according to the crime ", also prohibit criminals to engage in special activities during the probation period, into specific regions, specific place, contact person". The so-called "according to the crime" mainly refers to the circumstances of the crime, crime subjective vicious as the size of the situation; the so-called "special activities", generally should be related with the original crime linked activities, such as correlation and manipulating the trading prices of securities, futures crime, corruption, and speculation activities of embezzlement crime accounting activities; the so-called "specific area, place" generally refers to the original crime regional, place or similar to the original crime place, area, such as related to the coercive indecency, insulting women sin of places of entertainment; "special" generally refers to the original crime associated with the victim and their close relatives, the witness. Ban contents shall be justified or are based on the rational inference, targeted. Prohibition may include one or more. Ban content should be reflected in the judgment, the legal effect of the mandatory, the criminals must comply with. This clause shall apply for selectivity in probation, and whether it is necessary to define what prohibition, ban, judges have the discretion, if the judge did not think it necessary to can be in the probation without additional ban.

4 rules to increase the ringleader recidivism and criminal group not applicable probation. "Criminal law amendment (eight)" to article seventy-fourth of the criminal law is amended as: "to recidivists and ringleaders of criminal groups, not applicable probation." The provisions of this expression of recidivism and crime syndicate ringleader the spirit of severe punishment. The provisions of this article seventy-two and the criminal law about the applicable conditions of probation are connected, two cases clearly applicable and not applicable to probation, perfect the legal system of our country criminal law about the conditions of probation. The primary molecular considering criminal group organization, the leading role in the criminal group, this kind of crime group often several crimes, crimes on the qualities of some bad, serious harm to the society, the first great subjective malignant crime group, need to be severely punished according to law, if a crime, even if was sentenced to three years in prison, also cannot apply probation, shall be the actual execution. It should be noted that, due to the "criminal law amendment (eight)" the scope of special recidivism are expanding, "the crime of endangering national security" to "terrorist crimes, organized crimes of the underworld crimes", not applicable probation range actually expanded.

(three) perfect control sentence and probation, parole execution mode, to provide a legal basis for community correction

Control, probation, parole is to take the non imprisonment penalty of criminal execution. From the legislative investigation, all generally reflect, public security organs as control, probation, parole execution subject, because of its own bear the heavy maintenance of stability and the maintenance of social security responsibilities, and widespread police shortage problem, for its commitment to the implementation of duties to attend to, and brings on China's economic and social situation changes grass-roots management ability is weakened, control, probation, parole in actual implementation faces many problems need to be solved: one is to control the criminal to in the actual implementation of the effect, often a mere formality, some local people called "control" for whether or not, the effect is very poor, leading to the judicial organ is seldom applied to the control punishment, made in China in criminal law, the only non imprisonment punishment did not fully play its due role; two is the supervision on probation, parole adverse. In some places, probation, parole migrant workers, business in limbo, removing pipe, drain pipe phenomenon is serious, widespread "no supervision", "no investigation" phenomenon, and even many people mistakenly believe that the defendant is sentenced to public surveillance, probation or parole decision is "OK", the probation, parole system plays a positive effect should not.

Since 2003, the relevant departments to carry out somewhere in the pilot work of community correction, 2009 in the overall trial implementation of community corrections. Community correction as non imprisonment penalty, will meet the statutory conditions of offenders under community, by the special social groups in the relevant state organs, non-governmental organizations and community volunteers with the assistance of, is sentenced to control, probation, is the temporary execution outside prison, convicted of five offenders on parole and deprived of political rights and serving in the community, for the ideological education, the psychological and behavior modification, criminals to promote healthy social personality, so that criminals can eventually to ordinary members of society identity to return to society smoothly, thereby reducing the prison reform may bring to the passive obedience, self-confidence and initiative loss and prison in cross infection etc. the negative effects, plays an important role in maintaining social harmony and stability, reduce the cost of the execution of punishment, perfecting the non imprisonment penalty system has made useful exploration, has accumulated rich experience, obtained very good result. According to statistics, as of the end of 2010, the country's 31 provinces (area, city) has 258 ground (city), 1998 counties (city, area) has been fully carried out the work of community correction, villages and towns (street) coverage reached 57%, 11 in Beijing province (area, city, district) has achieved full coverage. A total of 577000 people received the community inmates, the cumulative release correction of 307000 people. According to statistics, in the correction during the re crime rate is only 0.21%, far below the sentence crime rate around 8% criminals in prison.

In the legislative research, widespread around the hope to the community correction as non imprisonment penalty execution mode, should be reflected in the criminal law, in order to further promote the legislation of community correction. The NPC Standing Committee in accordance with the relevant views, "criminal law amendment (eight)" in article thirty-eighth of the criminal law, article seventy-sixth, article seventy-seventh, article eighty-fifth and article eighty-sixth of regulation, probation, parole provisions is amended and supplemented, add the following content mainly:

1 the community correction as non imprisonment penalty of legal status of execution method. In consideration of the draft process, member of the Standing Committee members to the "criminal law amendment (eight)" in the provisions of the community correction also put forward different views. Some believe that, at present in all parts of the country community correction is still in the pilot phase, the country development is not balanced, considerable differences exist between different regions, different city, city and countryside, many local community correction mechanism has not been established, though some of them are established to undertake the task of criminals, in does not have community correction of local conditions, may appear to some criminal community correction not implement, there will inevitably be a criminal, and problems such as loss of control tube. Recommended not specified, then the provisions when conditions are ripe. Taking into account the community correction as part of criminal penalty execution important reform approach, in part by local pilot to have been present in the country fully open trial, the practice proved to be feasible, the social effect is good. Members are put forward in consideration of the problems do exist in the work, the relevant judicial authorities can work through further strengthen cooperation and convergence, to prevent the delivery of community correction offenders off tube, drain pipe situation. Legal status in the criminal law explicitly community correction, helps to promote the development of community corrections and the community correction legislation as soon as possible. Therefore, still in the law of community correction made regulations.

"Criminal law amendment (eight)" the criminal law provisions of the original control, probation, parole criminals "execution" is amended as "by the public security organs shall be subject to community correction", the correction in the country community from the legal affirmation. At present there is no special community correction legislation, "criminal law amendment (eight)" in the relevant provisions stipulated in the still of control, probation, parole "shall be subject to community correction", mainly taking into account, the authorities are drafting of community correction law, criminal law should provide a legal basis for community correction, and will have to introduce community correction method cohesion. On the practice of community correction, can be based on summarizing trial experience, in the future introduction of the community correction made specific provisions of law.

In the draft and revision process, many of the views put forward, the draft should be made clear "the judicial administrative organ is the organ in charge of the community correction work". Considering the "competent" is in charge of the specific affairs in the meaning of the law, the community correction is a complicated system engineering, it changed our traditional imprisonment as the dominant mode of execution, has brought great changes to reform criminals concepts and methods, it will mainly by the public security organs to assume, change for the relevant state organs, social organizations, community organizations and volunteers, carry out their duties, division of labor cooperation; new correction mode to make the criminal transforming work. Chinese and foreign judicial practice has proved, no one agency can finish the work alone. The judicial administrative organ in community correction plays the lead organization, coordination of relevant units and community-based organizations to carry out the work of community correction, and to guide the management of community correction work. Although the "criminal law amendment (eight)" the criminal law provisions of the original control, probation, parole "executed by a public security organ" is amended as "shall be subject to community correction", but does not mean that the executive organ of community correction from the public security organs simply handed over to the judicial administrative organs, but not to say that the public security organs will no longer bear the supervision and management to be control, probation, parole criminals responsibility. Whether in the present pilot community correction work, or in the future after the introduction of community correction law, public security organs as the main social security administration department, always will bear corresponding responsibilities in the work of the community correction, play an important role in. Not only the public security organs, the people's court, the procuratorial organs in the work of the community correction also plays an important role. Therefore, the "criminal law amendment (eight)" no rules "the judicial administrative organ is the organ in charge of the community correction work".

The process of legislation, some suggestions should be clearly defined five kinds of objects of community correction is regulated, probation, parole, the temporary execution outside prison and deprived of political rights for criminals. The legislature takes into account the provisions of the criminal law of deprivation of political rights and control, probation, parole provisions are significantly different, it only requires criminals cannot exercise certain rights, and there is no other additional statutory obligations to persons deprived of political rights. Generally speaking, in other laws, regulations, rules and regulations are already explicitly stipulated in the exercise of political rights were deprived of deprivation of political rights, such as the "position in state organs" and "State-Owned Company, enterprise or institution or people's organization" rights issue, there are clear, the civil servant law lawyers, teachers, medical practitioners law and administrative regulations, departmental rules and even company, enterprise's charter. Article 100th of the criminal law also stipulates, subjected to criminal punishment according to law, in the recruitment, employment, shall truthfully report has been subjected to criminal punishment to the relevant units, and shall not conceal. And the right to vote and stand for election to exercise, the general electoral institutions at the time of registration will be clear from the review, the temporary execution outside prison and belongs to the criminal procedure law, therefore, "criminal law amendment (eight)" not to be "deprivation of political rights" and "the temporary execution outside prison" criminals as object of community correction.

A 2 increase in the people's court according to the situation of crime, criminals sentenced to control, probation additional prohibition regulations. "Criminal law amendment (eight)" in article thirty-eighth of the criminal law, the provisions of article seventy-second, the people's court according to the crime, to prohibit in its specific activity during execution in the criminal sentenced to control, probation, into specific regions, specific place, contact person and other contents of the ban, the punishment can be reflected more individual in execution, more targeted. What is the "specific", the law does not make specific provisions. In practice, the situation is more complex, difficult to make detailed provisions in the law, the people's court according to the need, every case criminal crime plot, the causes of crime and other specific circumstances, according to the need of maintaining social order, protecting the victims from the infringement actor again, again to prevent crime, make the prohibition of concrete in the judgment. The people's court injunction, can only matters involving the aspects, such as only prohibited behavior of people engaged in certain activities, also relates to matters in three aspects, namely also banned in its specific activity, into specific regions, specific place, contact person. The law "can" make a prohibition order according to the circumstances of the case, is that not all cases to make the ban. Whether to ban, the people's court may make a judgment according to the circumstances of the case and the need for.

3 further defined the criminals in the control, probation, parole violation of the relevant provisions of the relevant departments of the State Council or the Court banned the legal responsibility to. The probation, parole execution executed by the public security organs into community correction, "criminal law amendment (eight)" will be the original provision shall comply with the "criminal law" the relevant provisions of the State Council department of public security of probation, parole supervision and management regulations "amendment to the State Council departments" on probation, parole supervision and management regulations on parole during the period of probation. The original provisions of the criminal law has stipulated the legal consequences for violating probation, parole supervision and management requirements, but to the criminals sentenced to public surveillance violates the Court banned the legal responsibility that is not stated, "criminal law amendment (eight)" the provisions of the criminal law thirty-eighth aspects of increasing in the fourth paragraph, the public security organs in accordance with the provisions of the public security management punishment law punishment. According to the regulations on administrative penalties for public security law sixtieth, execution, deprived of political rights in accordance with the law or regulation on medical parole, probation, probation of criminals or criminal coercive measures taken according to law who, in violation of laws, administrative regulations and the public security department under the State Council relevant regulatory provisions of the act of ten, less than five days days detention, a fine of two hundred yuan to five hundred yuan fine.

Four, improve the heavier, lighter and mitigate legal provisions of punishment

(a) will confess lenient criminal policy and law

In recent years, the National People's Congress, the Standing Committee, the judiciary and legal experts have proposed many times, Frank is the party and the state of the criminal policy of criminals is consistent, long-term implementation, but has not been reflected in law, it is difficult to play its due role, should rise will confess lenient criminal policy for the law. The judicial authorities reflect, on the criminal suspect, defendant confession exists the following problems in practice: one is in the course of the investigation, "Frank" easily become a pigeon means, the formation of judicial injustice. "Confess" in the judicial practice only as a discretionary circumstances applicable in the investigation stage, and frankly, guilty, sometimes not recognized in the trial stage, even in individual cases exist because of the defendant's confession makes the judiciary that did not grasp the crime, and sentenced to heavy the penalty, dubbed the "Leniency to those who confess, sit in the prison". In the two phase of the trial, the defendant pleaded guilty as a discretionary circumstances of sentencing, completely rely on the judge's experience, not unified by sentencing. Especially in some job-related crimes, to the role of not less than surrender and other statutory sentencing plot, and this point is often ignored by the investigators, has not embodied in sentencing.

Some of the judiciary and legal expert advice, the suspect, the defendant confession rules for the statutory mitigating circumstances of sentencing. The main reason is: first, to arrest the voluntary confession, the crime suspect, accused of law became, and remove the evil and follow the good intention, the relative to the last ditch, or even deliberately fabricates the suspect, the defendant lies misled investigation, trial work and voluntary confession, easy to transform, apply lighter penalty to achieve the purpose of punishment. At the same time, voluntarily pleaded guilty behavior to assist the judiciary timely detection and the law case, saving judicial resources, alleviate the burden of proof of the prosecution, while ensuring the efficiency of litigation, the guilty persons to be legal recognition, and the other criminals for inspiration. Secondly, from the relationship between the confession and surrender, surrender and confess to the same to the judicial organ to confess their crimes as its basic contents, the main difference between the two is that the initiative to confess their crimes, if they have more positive attitudes and actions, but we cannot ignore the frankly leniency. It is because of the lack of candor in the initiative, so frankly leniency to also should be distinguished and surrenders the lenient. The initiative to confess their crimes to give in the lighter treatment within the range of legal punishment, but not mitigated punishment.

"Criminal law amendment (eight)" the first trial draft on "to confess" the suspect only provisions "may be given a lighter punishment". In the process for the solicitation of opinions, some judicial suggestions on increasing "confession mitigated punishment", the reason is: criminal law clearly stipulates the to be lenient, can make the suspect truthfully confession crimes, which helps to break the case, the verdict, saving judicial resources, but also help reduction of torture, Yougong, illegal handling behavior. But to confess a lighter punishment, may not be sufficient to induce suspect confess a crime, still can not meet the need of practice. One is some cases may need to increase the cash reward policy efforts, such as some evidence is weak, no confession is difficult to finalize the case. Two is some cases may need to further differentiate treatment on Frank suspects, such as in the group crime case, willing to cooperate with judicial authorities and the first honest lenient efforts can be greater, more conducive to disintegrate criminals, rapid breakthroughs in the case.

"Criminal law amendment (eight)" in article sixty-seventh of the criminal law in one paragraph is added as the third paragraph: "the suspect is not with the provisions of the preceding two paragraphs plot, but confess, may be given a lighter punishment; for his truthful confession, to avoid serious consequences occur, can reduce the punishment."

The provisions of the criminal policy of leniency to those who confess, is first embodied in law, is of great significance. The provisions on Frank "may be given a lighter punishment", "special conditions may be given a mitigated punishment", mainly taking into account, if confess all can be lighter, then surrender without distinction. For can be mitigated punishment, only the major cases, and only to avoid because of especially serious harmful consequences, it can be used. The so-called "because of its truthfully confessed their crimes, to avoid serious consequences occur", mainly refers to some special crimes, such as put bomb explosion in the process of implementation of crime, criminals have to commit the crime, but the consequences of the crime has not happened, was arrested, because the confessed crime, the judicial authorities are especially serious for the impending explosion consequences can take timely measures to dispose of, so as to avoid the consequences etc.. In this particular case, although not the criminal gave up the crime or automatically and effectively prevent the occurrence of crime, but the honest truth after all to avoid major harmful consequences occur, the treatment than ordinary frankly and lenient some is also reasonable, so the law of this criminal, can be mitigated punishment. Of course is to alleviate only a discretionary choice, is not mandatory.

In the draft of the revision process, there have been suggestions will make confession "mitigated punishment" conditions "for his truthful confession, avoid especially heavy losses". But there are suggestions that the representation of meaning is not clear, some big corrupt officials may themselves actively chairman considered "avoid especially heavy losses" to escape punishment, not to punish corruption, proposed to amend the "because of its truthfully confessed their crimes, to avoid serious consequences occur," to avoid ambiguity in legal application. And that, according to a lighter or mitigated punishment applicable objects should not be confined to the criminal suspect, the defendant should be expanded to "". Considering that in accordance with the provisions of the criminal procedure law, criminal suspects to trial stage is called "the defendant", if the criminal suspects in the investigation, prosecution stage are not confess their crimes, to proceed to trial in court to make confession, practical significance has not, therefore did not adopt the views.

(two) improve mitigate legal provisions of punishment

1 remove the "crime after the surrender and major meritorious services, should be mitigated punishment or be exempted from punishment" provisions. The criminal law sixty-eighth stipulation: "criminals expose others to crime, verified, or provide important clues, and the cracking of other cases meritorious performance, may be given a lighter or mitigated punishment; there are significant meritorious performance, can be reduced or exempted from punishment. "" crime after the surrender and major meritorious services, shall be reduced or exempted from punishment"

The judiciary reflects the criminal law, the provisions of this article in the judicial practice the execution of some problems, mainly in criminal law of China is quite some felony highest a punishment for "more than ten years imprisonment, life imprisonment or death", in the judicial practice, there are some very serious criminal offences, but because of "surrender after committing a crime and major meritorious service", the law "should be mitigated punishment or be exempted from punishment", the death penalty criminals can only be sentenced to ten years in prison, the basic principles of adaptation from the crime of making decision, but also lead to different criminal in the same case the gap phenomenon. Suggestions on the provisions in a punishment "can be sentenced to ten years imprisonment, life imprisonment or death", how to reduce the specified punishment.

Some judicial organs and some legal experts think, for the crime of the sentenced criminal punishment, if a specified in "more than ten years, life imprisonment or death", across several kinds of punishment, and between each kind of punishment itself a huge difference, correct and reasonable mitigated punishment should first determine if no mitigating circumstances offenders may be sentenced to punishment, then determine the mitigated punishment shall be applicable penalty. For example, the criminals without mitigating circumstances, should be sentenced to death, a mitigated punishment shall be sentenced to life imprisonment; if the criminal should be sentenced to life imprisonment, was sentenced to ten years in prison, has been mitigated punishment.

The process of soliciting opinions, the judiciary, legal experts generally approve of the death penalty criminals sentenced especially according to the above principle to determine the mitigated punishment punishment. But some legal experts think, the mitigated punishment amplitude determined if from the law point of view, can be said to be mitigated punishment, but also can be said to be a lighter punishment results, because it was "a penalty of ten years imprisonment, life imprisonment or death" three kinds of penalty alternative. In judicial practice, the criminal cause slight penalty problem mitigated punishment, because the criminal law of the second paragraph of the original sixty-eighth "crime after the surrender and major meritorious services, shall be reduced or exempted from punishment" is too rigid, the court has no room for manoeuvre, proposed to delete this paragraph of article sixty-eighth of the criminal law, will not again the criminals sentenced to death, mitigated punishment sentencing underweight problem.

The legislature based on extensive solicitation of opinions, after careful research, adopted the views. "Criminal law amendment (eight)" to delete the article sixty-eighth of the criminal law of the second paragraph in the original "crime after the surrender and major meritorious services, shall be reduced or exempted from punishment". The future for the criminals after the surrender, meritorious, retaining only the provisions can be mitigated punishment or be exempted from punishment. The people's court in the voluntary surrender, meritorious criminals sentenced to a punishment, when, according to the facts of the crime, the nature of the crime, the plot and the degree of harm to society, to decide whether to waive or reduce the punishment. For the sin of the criminals sentenced to death, despite major meritorious service and surrender, can not reduce the punishment.

In the "criminal law amendment (eight)" the drafting and review process, has proposed to retain the original sixty-eighth provided for in the second paragraph of the criminal law and make appropriate changes, in order to encourage the meritorious, differentiation, the collapse of criminals, so as to save the judicial resources. Study on the legislative thought, article sixty-seventh of the criminal law and the first paragraph of article sixty-eighth has been on a lighter punishment of the voluntary surrender and meritorious service for the relevant provisions, the provisions of the first paragraph of article sixty-seventh of the criminal law "for the criminals to surrender, he may be given a lighter or mitigated punishment. Among them, the lesser crime, may be exempted from punishment ", specified in the first paragraph of article sixty-eighth, the criminal has performed meritorious service", may be given a lighter or mitigated punishment; there are significant meritorious performance, can be mitigated punishment or be exempted from punishment ", the provisions of article two above, enough to meet the need of processing different circumstances of the case, play is to encourage voluntary surrender differentiation, crime and criminals, crime fighting role, so the second paragraph sixty-eighth delete the provisions shall not affect the lighter treatment to surrender, meritorious criminals. If we take into account the "criminal law amendment (eight)" amendment to criminal law of the first paragraph of article sixty-third has been made, explicitly criminals with mitigating circumstances, shall be sentenced to a punishment in after a range of statutory sentencing sentencing range within the provisions of the second paragraph, remove sixty-eighth of the criminal law has become necessary.

2 the mitigating sentencing range. Reflect some judicial organs, with the provisions of the criminal law for criminal mitigating circumstances, how to accurately sentencing, in the actual implementation of the existing cognitive dissonance, no unified application, arbitrary large problems. Mainly in the provisions of the criminal law, criminal with mitigating circumstances, if the decision to reduce the punishment, punishment is in the next grade sentencing sentencing, still can span one or several grade sentencing sentencing and punishment, the courts have the standard is not unified, resulting in similar cases there are differences in sentencing on the situation.

In order to unify the mitigating sentencing standards, accurate measurement of penalty, "criminal law amendment (eight)" the sixty-third paragraph is amended as: "the criminals with the provisions of this Law of mitigating circumstances, shall be sentenced to a punishment in legal punishment under the provisions of this law; a plurality of sentencing, he shall be sentenced to a punishment in the next the sentencing range within the statutory sentencing."

To have been confirmed to be mitigated punishment, criminal law with a plurality of sentencing, he shall be sentenced to a punishment in a range of statutory sentencing sentencing range within which the provisions of the criminal law, this crime has more than two of sentencing, sentencing range under a mitigated punishment only in the range of statutory sentencing followed within the penalty, but not across a range of sentencing punishment. If the range of statutory sentencing is the lightest or criminal law only provides a sentencing range, is mitigated punishment can only be within this range a lighter sentence or the lightest punishment.

Five, improve the fight against organized crimes of the underworld society crimeLawRegulations

(a) improvementThe criminal lawArticle 294th

The crime of the underworld organization as one of the most serious form of crime in crime, great harm to society. It seriously interfere with national normal political and economic order, erosion of state power, the corruption of social morals prevailing custom, a serious threat to people's safety. The 1997 revision of the penal code, the legislature of the organized crimes in our situation in-depth study, the thought, our country has not formed the underworld like some countries do large-scale, on the national economy and social life have a significant impact, but the Mafia organized crime in some places has begun, serious harm to the state and society have gradually emerged, in order to combat against Mafia organized crime, maintain public order, specifically stipulated in article 294th of the criminal law of the underworld nature organization crime.

In recent years, the underworld of organized crime is increasingly rampant in some places, the judicial authorities generally reflect, article 294th of the criminal law. In practice, there exist the following problems:

A description of 1 articles in the not fully reflect the essential characteristic of gangland organizations. In the legislation of the judicial organ generally reflect, counts of article 294th of the criminal law on the crime of the underworld organization is described using the "dominate the party, do evil, oppression, harming the masses" and other literary language to describe, in fact state performance of this kind of crime behavior is reflected, not express the essential characteristic the social nature of organized crime. In practice, because of this crime not clearly defined, expression is unclear, resulting in the cognizance of the underworld, between justice between regional differences. Recommendations in a timely manner to the article 294th of the criminal law revision, a description is as likely to reflect the nature characteristic of the underworld organization.

2 no provisions of the property punishment. The judicial organ thinks generally, maximize the huge economic interests is one of the most important purpose of the crime of the underworld organization, the development process of the underworld organization is a "black Pro business, circulation business to the black". A convergence of various illegal means money and this property to support their illegal and criminal activities, on the other hand, relying on its economic strength, corrosion, to government officials, and to penetrate the commercial potential field, and the illegal income into legitimate income, and through legitimate business to maintain their own vested economic interests, to obtain more social wealth, illegal control, formed in a certain area or trade expansion of territory and influence, the power savings. Practice has proved, have a certain economic strength is a necessary condition for the underworld organization into a potential. The economic base and destroy the underworld property organization, which has important significance to realize "the goal the evils". But because of article 294th of the criminal law has not stipulated the property punishment, only around the article sixty-fourth of the criminal law provisions dealing with underworld property, which is recovered, the illegal gains confiscated criminals and contrabands, crime's own property used for the underworld organization, the property, the judiciary can only be based on the relevant judicial interpretations to be recovered to the underworld organization "convergent property and income," the organization with underworld society nature often duration longer, their industry wide areas, personnel change complex, its assets is also developing in a changing. A lot of the underworld property organization in order to achieve self upgrade, often by companies, enterprises and other legitimate coat for cover, through shares, shares, investment means the money "bleaching", and in various forms can be transformed into the members of the organization of individual or family property "legitimate". Because of the complex legal relationship, forensics difficult, to distinguish between the nature of the property has become increasingly difficult, showing a property source properties of complex, multi subject of property, the status of the property diversification characteristics. In addition our country financial, economic, asset management mechanism is not perfect, a lot of money transfer, assets cannot be verified original documents nowhere find nature, judicial organs to prove underworld property is "convergence" to the very difficult. Only rely on the recovered, confiscate the illegal income, has not been able to satisfy the need to completely destroy the nature crime of underworld organization economic basis.

Public security organs to reflect, as the underworld property are not confiscated, some Mafia members but also by the black social organization to help and care in prison, not only their own regular "living expenses", the family will bring "comfort fee", their family members and members of the organization can use a huge amount of money about, through joint. Members convicted after prison can immediately return to the underworld organization. In the fight against crime syndicate, only to punish the crime, not the eradication of the black economy, can only lead to the organized crime leaders change, it is difficult to clear it fundamentally. Suggestions on the crime of the underworld organization crime increase the punishment property.

3 of the underworld property organization organizer, leader the penalty is low. All generally reflect, the underworld property organization not only disrupt the country normal political and economic order, but also to national staff, to control political power at the grass-roots level, the corruption of social morality, especially the organization with underworld society nature dominate the party, do evil, their illegal and criminal activities and people's daily life, a serious threat to the social order, the criminal law only ten years in prison for the crime of the organizer, leader of the maximum penalty, punishment is obviously too light, is not conducive to the organization with underworld society crime punishment and deterrent to other crimes.

Public security organs to reflect, decision black struggle since the underworld organization, the average involving 5 charges, 32 cases, some involving more than 20 charges, more than 500 cases, the harm far more than ordinary crime. Especially the organizer, leader is at the core position in the organization with underworld society, embodies the social harmfulness of the crime organization. The organizer, leader should be statutory sentence to life imprisonment, to make the social harmfulness degree and organization, the leadership of the penalty crime syndicate to adapt, but also the spirit of the legislation strictly against organized crimes of the underworld society.

4 punishmentLaws and regulationsSet cover, condone Mafia Crime Subject of crime and the legislative interpretation provisions are inconsistent, and the lighter punishment. Some departments to article 294th of the criminal law, the subject of this crime is only limited to the personnel of state organs. The Standing Committee of National People's Congress on 2002 April "(the people's Republic of China Criminal Law) the first paragraph of article 294th the interpretation of" the expression is "state personnel", the two provisions of the inconsistency of the subject scope. The proposed changes to the national staff, the workers of state organs who committed the crime, be given a heavier punishment.

In addition, the highest legal punishment, for the criminal law 294th stipulation condone Mafia Crime legal punishment and the provisions of article 310th of the ordinary crime of harboring criminals are sentenced to ten years in prison, not reflected on the cover, condone Mafia protection umbrella severely crack down on the legislative intention.

5 should be the crime of the underworld organization into the special recidivist range. The judicial authorities, the crime of the underworld organization compared with the general crime, not only has the greater harm to the society, but also in the crime of the underworld organization's illegal control, obvious anti-government and anti social. Because of its stability and maturity of the organization, is the use of organized violence, once with certain individuals or organizations, illegal political groups combined, it is bound to evolve into a more powerful anti - government organization, endangering the state security. Therefore, it is necessary to take it as a kind of special recidivist, focus on.

On the basis of abundant investigation, extensive solicitation of the National People's Congress and the Standing Committee, the judiciary, legal experts, and after repeated research, "criminal law amendment (eight)" in article 294th of the criminal law amendment mainly as follows:

The 1 National People's Congress Standing Committee on the organization in the nature of the characteristics of black society into the provisions of legislative interpretation. In order to judicial organs apply law correctly, accurately strike with the Mafia organized crime, the ninth session of the Standing Committee of National People's Congress in April 28, 2002 passed the "criminal law of the people's Republic of '' the 294th the first interpretation", to the underworld organization to explain the meaning, the provisions of gangland organization shall at the same time have four characteristics. Judicial organs and legal expert thinks generally, the NPC Standing Committee on article 294th of the criminal law of the first paragraph of legislative interpretation, the accurate representation and grasp the essential characteristics of the present gangland organization, providing a legal basis for the fight against organized crimes of the underworld society. But because of its existence to explain the form of legislation, easy to be ignored, some local judicial authorities still to the Department of judicial interpretation as defining the underworld property organization basis, leading to the identification of the crime of the underworld organization's diverge. To apply law correctly, that this crime strictly in accordance with the characteristic of the underworld organization, "criminal law amendment (eight)" the relevant legislative interpretation in article 294th of the criminal law.

In the legislative process, a suggestion for revision of the provision "to dominate the party, do evil, oppression, harming the masses" and other literary modification language. But another view, the description of clauses in although not by legal language, but very image in the illegal control characteristics and summarized the underworld property organization. After failing to find a more accurate representation of legal language before, recommendations or to maintain the original provisions do not change for good. After a careful study, the amendment adopted the latter opinion.

2 to improve the organization with underworld society nature organizer, leader of punishment. In a practice, underworld of almost all can be divided into organization members, leaders, three levels of active participants and general participants. But the original provisions are only divided into two sentencing range, the organization, leaders and active participants classified as a grade sentencing. Think some judicial organs, although the organizers and the active participants belong to the principal, but the status and role in the organization has very big difference, social harm is also different, is not appropriate to make no exception in the sentencing range. The underworld organization's organizer, leader is the ringleader of the underworld organization, is the organization sponsors, creator, or in a leadership position in the organization, the organization and operation, activity plays a decision, command, coordination, management role. Prescribes the sentencing range not only science, the fight is also more accurate. The revised article 294th of the criminal law of the organization, leadership and active participant in two main levels and two speed penalty is divided into three main levels: three punishment to the underworld organization's organizer, leader of the penalty from the original "three to ten years in prison for" improve "for more than seven years in prison, confiscation of property"; the active participants, three to seven years in prison, may concurrently be sentenced to a fine or confiscation of property; the other participants, is less than three years imprisonment, criminal detention, control or deprivation of political rights, can be fined.

To understand the legislation, the judicial practice in the trial shehei organization, leader, one of the biggest problems is clear of the underworld organization, whether the leader should I not to participate in the implementation by the other members of the organization crime criminal responsibility. Because of the underworld property organization specific implementation of various crimes, underworld organizations, leaders are not present or not personally, judicial organs often diverge in that whether the response to the underworld property organization and other members of the crime of criminal responsibility, and even appeared on the ringleader sentenced to life imprisonment sequentia the sentence the backbone, members of the other implementation of intentional homicide sentenced to death phenomenon. It should be pointed out that, the underworld property organization as a senior form of criminal groups, in the identification of criminal liability, shall apply to the general provisions of criminal law stipulates that the twenty-sixth principles, namely "ringleader who organizes, leads a criminal group, according to all the crimes committed by punishment" group, for the other principal "shall be in accordance with the the participation or organization, command of all criminal punishment". In the processing of underworld organizations cases in the underworld organization, the core and soul of the organizer, leader of all the crimes, shall be punished according to the crime of underworld organization. Specifically, all members of the underworld property organization implementation of the organization, to realize the organization will dominate the party's purpose or for the benefit of the whole of the organization crime, even specific crime underworld organization, the leader of the implementation of the first member of staff does not, also should bear criminal responsibility. For the underworld organization's participants, should be in accordance with the participation of criminal punishment.

In the legislative investigation and consultation process, a kind of views, whether we admit it or not, the underworld property organization already exists in our country is undeniable fact, starting from the curb and attack angle, the proposal to delete "nature of the underworld organization" in "two" word, direct provision "organization, leadership triad crime". Considering our country although there is no black society organizations like the Mafia Yamaguchi group Italy, Taiwan of China, the Japanese bamboo Gang as typical, but with black social organization the embryonic form of the underworld property organization still exists, the underworld organization already has the basic characteristics and the embryonic form of gangland organization, but also in the initial stage of development, not to remove the "nature" two words, more conducive to the implementation of the central proposed to the underworld organization "play early, small, outcrop hit" policy.

3 an increase of property punishment. 294th of the criminal law revised in the stall Penalty specified in both the property punishment. On the organization, the leader concurrently be sentenced to confiscation of property; the active participants, may concurrently be sentenced to a fine or confiscation of property; the other participants, you can be fined. This can greatly weaken the economy foundation organized offender, combating organized crime.

In the legislation process, a kind of viewpoint thinks, illegal property confiscation of property can be confiscated criminals, the legitimate property cannot be confiscated criminals. As everyone knows, the purpose of criminal law sets the property punishment is the ability to get rid of criminals and crime. According to the legislative interpretation, one of the characteristics of the underworld property organization is "organized to obtain economic benefits through illegal and criminal activities or other means, has a certain economic strength, to support the activities of the organization", therefore, from the elimination of underworld organizations criminals commit force point of view, the confiscation of the Underworld Criminal property the eradication of underworld organization, economic strength, it is more urgent, the more necessary. According to the criminal law fifty-ninth stipulation, "confiscation of property is the whole or a part of" the confiscation of property, criminal law never will "confiscation" limit the illegal property can only be confiscated criminals "". Because, according to the provisions of article sixty-fourth of the criminal law; "the illegal proceeds of the criminal shall be recovered, or ordered to return", the illegal income belongs to recover the list, recovered after the rest of the majority is the legitimate property of criminal forfeiture of property, but begin from the lawful property of criminals, it the criminal law is intended to set the property punishment is.

4 improve the underworld organization "umbrella" punishment. The functionaries of a state organ shield, connive penalty first gear maximum penalty from three years to five years, the second tallest penalty from ten years to fifteen years. By a functionary of the state organ to provide protection for the underworld property organization, is illegal and criminal activities of the underworld organizations can implement or not main root after the implementation of punishment is. Because of the special subject of crime crime object, shield, connive special, social harm is also different from the ordinary crime of shield, the penalty is higher than that of a common crime of shielding increase five years.

The so-called "harboring the underworld property organization", mainly manifested as obstruction, interference of underworld organization implementation specific crimes investigation, from the public security organs in recent years destroyed "umbrella" situation, "shield, connive" common performance for the following three specific behavior: one is the effect of using the convenience of duty or authority, status, and say hello, set the tone, obstruct, interfere the illegal and criminal activities of the underworld property organization and its members are banned, so as not to be investigated for criminal responsibility, this is the "protective umbrella" is the most common behavior. Two is the effect of using the convenience of duty or authority, status, provide convenience or assistance to the underworld property organization and its members of illegal and criminal activities. The three is that the underworld property organization and its members to engage in illegal and criminal activities, because of bribery, favoritism, not to punish the illegal and criminal activities, do not perform their duties according to law.

In the legislative process, some departments, the subject of crime of criminal law and the legislative interpretation shield, connive provisions inconsistent, legal provisions are the subject of this crime is only limited to the "staff" state organs, and the NPC Standing Committee's legislative interpretation rules expressed in "the shield is national staff or indulge", will unify the two recommendations. In the course of the study, some suggestions that, illegal control features in defining the underworld property organization when shield, indulgent subject scope and criminal responsibility of the subject range of inconsistency is understandable, the two in the range of variation is "state organ staff" state-owned enterprises, institutions and people's organizations of persons engaged in official duties do not include. But from investigating shehei cases "umbrella" situation, truly and crime can be played the role of the asylum, mainly to the criminal state functionary in charge of interdiction duties. It is due to blocking interference, the staff of state organs, the underworld organization to survive and develop. If you want to modify it, should modify the legislative interpretation, the subject of crime to "staff" state organs. But this will cause a difficult technical problem: the original legislation dealing with legislative interpretation is still valid? If effective, black "umbrella" is not identical problems remain interpretation of legal provisions and legislative; if not, the NPC Standing Committee in a proper manner what declared invalid? From the angle of legal validity maintenance of legislative interpretation, try not to change, "criminal law amendment (eight)" the NPC Standing Committee Legislative Interpretation of the contents into the criminal law did not make any changes.

(two) to adjust the crime of blackmail and impose exactions on threshold for conviction, improve its legal punishment

The criminal law 274th stipulation: "blackmail and impose exactions on public and private property, large amount of, a fixed-term imprisonment less than three years, criminal detention or control; the amount is enormous or other circumstances are serious, three to ten years in prison." Blackmail and impose exactions on, refers to the threat, blackmail and intimidation and other means, make the victims have fears, but have no alternative against one's will hand over the behavior of property. According to the public security organs to reflect, the law of the crime of blackmail and impose exactions on some problems in the practice of law enforcement, urgent. Some criminals repeatedly blackmail and impose exactions on others, blow to escape the criminal law, every time the blackmail and impose exactions on the small amount, only from the amount does not live up to blackmail and impose exactions on the "large amount" conviction criterion (judicial interpretation of one thousand yuan to three thousand yuan), unable to blackmail and impose exactions on crimes shall be investigated for criminal responsibility, can only be given administrative punishment. In recent years, blackmail and impose exactions on has become a common means of black evil forces seize the wealth accumulation of economic power. Especially in some parts of the black evil gang, with overwhelm with numerical strength, notorious, frequently blackmail and impose exactions on behavior, showing some new features: some criminals on entrepreneurs, celebrities, in the name of banquets, sightseeing, the cheat to one place, and then sent to a hand, the threat of the I or the family member's personal harm, forced draft signature good so-called owed huge debts files already in, or to force it to write to others to borrow huge sums of money. Some evil forces crime gangs using this means a short period of time will be an easy job to be a huge amount of property income in the capsule. In such cases the so-called ious victim's signature, the victim said he felt threatened hard, difficult to crack down on this kind of crime. Even if the case was cracked, because this crime maximum statutory penalty of only ten years in prison, such as lack of attack problems.

In the legislation, the judicial organ thinks generally, the actor takes the threat, blackmail and intimidation, forcing the others because of fears and the delivery of property act, and theft secret theft and fraud facts or conceal the truth, as compared to the victim into mistake and voluntary delivery of property act, the means of crime more serious nature. The protection from the criminal law point of view, the crime of theft, fraud violations of the law is the property rights, and the crime of blackmail and impose exactions on violations of the law benefits in addition to the property rights, including the freedom decided by idea, human rights and other rights. Under normal circumstances, the same amount of crime, the social harmfulness of the crime of blackmail and impose exactions on more than social harmfulness of theft, fraud. But the theft crime in China's criminal law, the crime of fraud can be more than ten years of fixed-term imprisonment or life imprisonment, and the maximum punishment of crime of blackmail and impose exactions on only ten years, the setting is not balanced. The legal punishment of the crime of blackmail and impose exactions on partial light, and does not require the property punishment, suggestions to modify the provisions of the crime of blackmail and impose exactions on.

"Criminal law amendment (eight)" in article 274th of the criminal law crime of blackmail and impose exactions on the following modifications:

1 "many blackmail and impose exactions on" as one of the independent condition to constitute a crime, reducing the crime threshold for conviction. The so-called "blackmail and impose exactions on many times", refers to the repeated blackmail and impose exactions on behavior, does not require every time the amount reach to a certain standard, but as long as the repeated, can be convicted. "Many", generally refers to more than three times. To reduce the threshold for conviction, to more effectively combat this seriously endangering public security crime.

2 raise the maximum statutory penalty of the crime of blackmail and impose exactions on, and increased the property punishment. The original provisions of criminal law out of fraud blackmail only provides two file criminal law set maximum punishment of ten years in prison, no provisions of the property punishment. "Criminal law amendment (eight)" a penalty increases in this article, "if the amount involved is especially huge or other especially serious circumstances, department for more than ten years in prison, fined", and in each grade sentencing are added provisions of property punishment.

(three) to revise and improve the crime of forced transaction

The criminal law 226th stipulation: "by means of violence or threat, buy and sell goods, compelling others to provide or receive a service, if the circumstances are serious, is less than three years imprisonment or criminal detention, or be fined." According to the public security organs to reflect, in recent years, with the rapid development of China's economy, the criminals use violent means to obtain illegal economic interests in economic activity trend. Especially some black evil gang, in the project bidding, auction, trade competition and transfer of assets acquisition and other fields, is by means of violence or threat, forcing others to violate the will of the individual acts or omissions, commonly used means to seize the social wealth and resources. This behavior not only seriously disrupt the order of socialist market, but also infringes on the citizen's rights of the person, with serious social harm, should be severely punished.

"Criminal law amendment (eight)" in article 226th of the criminal law amendment mainly as follows:

1 an increase of specific acts constitute the crime of forced transaction. According to the new situation, new characteristics of the crime of forced transaction, the increase of three kinds of forced transactions: the first, "forcing others to participate in or withdraw from bidding, auction", refers to the behavior person by means of violence or threat, pressuring other this is not willing to participate in the bidding or auction in bidding or auction, in order to let others as a foil, in order to cover up their illegal or the third bid rigging or auction, or force the other wanted to participate in the bidding or auction bidding or auction people from using violence, threats, squeeze out competitors, illegal interests to obtain unfair price to make their own or third in the no bid or bidder case. Second, "forcing others to transfer or acquiring company, enterprise shares, bonds or other assets", refers to the transfer of assets in the process, the behavior of the human use of violence, threats pressuring others in violation of market law of value and is not conducive to the transfer of the company, the enterprise stock, bonds or other assets price transfer, make oneself or the third party profit from, or in the acquisition process, by means of violence or threat, forcing others to violate the law of value and the market is not conducive to the Purchaser under the condition of high priced acquisition or third companies, corporate shares, bonds or other assets, the purpose is to make yourself or third from profit. Third, "forcing others to participate in or withdraw from a certain business operation", refers to the behavior person to themselves or the third gain illegal economic interests, forcing others by means of violence or threat, to participate in or withdraw from the specific business activities, such as making others succumb to violence or threat, hand, forced to become a shareholder, but give returns not commensurate with the proportion of investment proportion, or by means of violence or threat, forcing rival out of the specific business activities, their monopoly position to be an easy job to obtain huge illegal profits behavior.

2 improve the forced transaction crime punishment. The original provisions of the maximum punishment for a period of three years in prison, the amendment adds a penalty, the tallest penalty of up to seven years in prison. The forced transaction, if the circumstances are serious, is less than three years imprisonment or criminal detention, or be fined; if the circumstances are especially serious, department for more than three years of less than seven years imprisonment, fined. Among them, "if the circumstances are especially serious" mainly refers to the use of forced transaction means particularly bad, illegal profit amount is particularly huge, if the consequences are especially serious circumstances.

(four) the law to perfect the crime of provocation, severely punish organizations, leaders

The 1997 revision of the penal code, the crime of hooliganism is decomposed, defiance and affray crime is one of the decomposition of the crime. In the legislative investigation of public security organs generally reflect, in recent years, fight affray crime have encountered some problems, mainly:

1 pairs of psychological deterrent to others using intimidation against blind behavior encountered. Some criminals, especially some black evil gang, of means to gain profits gradually from the past "looting" and other violent means to evolve into more use of the so-called "soft violence". Black evil force by virtue of their local notoriety in sound, in the control of construction contracting, fair trade products wholesale, catering and entertainment market, to interfere with the economic disputes, occupy the mineral resources, dun debts, help people settled the matter and so on, without the need to strike violently, a lot of things by verbal intimidation, the campaign will non violent means to work. They called, hired many thugs unified action, or specific hairstyle, wear the same uniform for clothing, or unity with tattoos, or uniform hand sticks, machetes and other equipment, in the relevant places lined up into battle, with the help of overwhelm with numerical strength, manufacturing site tension, panic. Part of the black evil force leader asked men to take "force and not playing, playing without injury, injury not heavy, heavy is not fatal" strategy, to the other party or the local people a huge psychological deterrent, causing panic, the nation can achieve the purpose. Such acts of intimidation, no fighting occurred, not identified as affray; many a pendulum field place not in public places, or in public places but causing no serious disorder, it is difficult to determined to stir up trouble. But this kind of behavior to the social order of great harm, serious damage to the environment of living normal civil, caused great psychological pressure to the parties and the family, the social impact is very bad. Such threats, nuisance, harm is greater than the list of defiance and affray in "chasing, intercepting, abuse", suggesting that "intimidation" others as affray crime crime.

The 2 criminals gathered others repeated affray punishment too light. Judicial organs and legal expert thinks generally, people gathered to cause trouble, its social harm has been far more than the ordinary person crime. Public security organs to reflect the provisions of the criminal law, the maximum penalty crime is only five years in prison. In the practice of the affray crime sentence is very light, sentenced to probation many, some even only in cases of public security processing. Such processing results, criminals, especially some evil force instead of a crackdown on proper, but become aggravated do evil, evil forces a greater reputation, influence, threatening force is stronger, the public reacted strongly. Suggestions for improving the penalty of sin, the form of joint crime of affray, a severe blow to the organization, the leader.

"Criminal law amendment (eight)" to stir up trouble crime mainly made the following modifications:

1 clear will "intimidation" added provisions of defiance and affray crime, to crack down on those who use violence or non violence threat, irritating, intention to create a psychological deterrent to others, which makes people fear, panic behavior. This is a new situation in practice of defiance and affray crime, especially in recent years, the evil forces of defiance and affray crime is often adopted in the so-called "cold violence", "soft violence" means the new increase.

2 strengthen efforts to crack down on several principal gathered others affray. Provisions "gathered others repeatedly commits the act, serious damage to the social order, the Department for more than five years to ten years in prison, can be fined". The so-called "many people", refers to the combination of others, polymerization, indicate that such provocative acts more than one person to participate, but do not necessarily exhibit organization closely, in most cases, may be manifested as multiple or very loose gang crime, may also represent the form of gang crime. The maximum penalty crime was originally only five years, considering the way to many people commit crime and repeated provocative acts, its social harmfulness than to individual crime, thereby increasing a penalty, the maximum penalty from five years to ten years, can be fined. A necessary condition for the gear punishment is gathered others repeated provocative acts. Repeated provocative acts, does not require every provocative acts must constitute a crime to apply the provisions of this paragraph, as long as the others gathered many implementation of the act, serious damage to the social order, which is in accordance with the applicable conditions of this paragraph.

(five) to expand the scope of special recidivist, increase the intensity of the organized crimes of the underworld society crime punishment

The 1997 criminal law only provides special recidivist crime of endangering national security. In recent years, the National People's Congress, the judiciary and legal experts have repeatedly pointed out, that the crime situation and judicial practice, except for the crime of endangering national security, terrorism crime has become a serious crime in the world each country must face together. Globally, terrorist crime both in scale, or in the damage extent, has expanded trend. Our country also by terrorism, separatism, religious extremism and the terrorism crime of bitterness, it seriously damaged the social normal order of life, of a citizen's personal, property and social stability caused by a serious threat. In addition, organized crimes of the underworld has become one of the most serious crimes of disrupting social order, compared with the general crime, not only has the greater harm to the society, but also in the crime of the underworld organization's illegal control, obvious anti-government and anti social. Therefore, it is necessary to take it as a kind of special recidivist, focus on.

"Criminal law amendment (eight)" in article sixty-sixth of the criminal law mainly conducted the following modification:

1, expand the scope of special recidivist. The special recidivist expanded from the crime of endangering national security to the criminal terrorist crimes, organized crimes of the underworld, more conducive to crack down on this kind of crime.

2 modified the special recidivist. According to the provisions of the revised, constitute the special recidivist must meet the following three conditions: first, criminals who committed the crime of the crime before and after any kind is the crime of endangering national security, terrorism, organized crimes of the underworld crime, constitute special recidivist, rather than as criminal law in 1997 so, before and after the crime crime must have the same type of crime. The drafting process, a viewpoint, the special recidivist should be strictly controlled conditions, or the crime and crime are limited to the same kind of crime more appropriate. But also with a view, regulation of special recidivism system is to crack down on some serious harm to the interests of the state of crime, the crime of endangering national security, terrorism, organized crimes of the underworld, belong to the harm of crime, then before and after the crime must be of the same type of crime is too harsh. If the criminals who committed the crime is the crime of endangering national security, crime and crime crime of terrorism, in a sense, the subjective vicious and harmful to society than before and after the crime is the same type of crime is more serious, not as the same kind of crime restrictions. Legislation adopted the views. Secondly, not subject to Article sixty-fifth of the criminal law on the recidivism of the former and latter crimes should be "sentenced to prison conditions above punishment". Namely, whether or not sentenced to a punishment, sentenced to the penalty or punishment, as long as the crime constitute special recidivist. Finally, the criminal crimes of endangering national security, terrorism, organized crimes of the underworld in front of the penalty is executed or pardon, at any time to make any of such crimes, constitute recidivism, not subject to the five year time limit.

Six, to strengthen the criminal law for the protection of people's livelihood

(a) to add the crime of dangerous driving

According to statistics, by the end of 2010, the national highway mileage has reached 3984000 km, the highway traffic mileage of 74000 kilometers; motor vehicle retains the quantity already amounted to 199000000; have a driver's license number is close to 205000000 people, including driving the number 144000000. With the improvement of people's living standard, car into the ordinary people, has gradually become an important means of transport, especially in some economically developed, densely populated city, the recoverable amount of the automobile is increasing year by year, the attendant is illegal driving behavior and traffic accidents caused by. The malignant accidents caused by drunk driving and drag racing caused, is caused by the extensive concern of the whole society; in recent years, the National People's Congress, legal experts and the public repeatedly put forward, due to the high risk after a drunken driving and driving behavior, probability caused casualties and property loss is high, its harm is far greater than the other illegal acts of road traffic. Increasing in drunk driving and drag racing social risk, increasing the risk control difficult circumstances, legislative ideas should also become the standard for behavior standard, will drunk driving, drag racing to increase the provisions for the crime, in accordance with the needs of risk control. In the thorough investigation and study foundation, listen to the views and demonstration, "criminal law amendment (eight)" the drunken driving and racing two kinds of dangerous driving behavior increased crime.

"Criminal law amendment (eight)" one article is added in article 133rd of the criminal law, as one of 133rd: "drive a motorized vehicle on the road racing, if the case is serious, or in the way of drunken driving motor, detention, and shall also be fined." "The acts mentioned in the preceding paragraph, which also constitutes another crime, in accordance with the provisions of punishment heavier punishment." The article on the crime of dangerous driving. The following is the main content of the provisions:

1 subject of crime is general subject. Anything that drive a motorized vehicle on the road.

2 people must have "drive a motorized vehicle on the road racing, bad plot, or in the way of drunk driving behavior". Includes two behaviors: the first kind of behavior is "racing", is usually said "racing", refers to the behavior of people with gambling games or for the purpose of pursuing stimulation, drive a motorized vehicle on the road at high speed, and repeated the line, illegal overtaking behavior. Considering the competitive driving on the road, influenced by time, road, road, the traffic flow, the speed limit and other complex factors, legal provisions "aggravated" to constitute a crime, to determine whether the "vile", we should pursue overspeeding driving and may cause harmful consequences. Identification of. The second is in the way of drunken driving motor behavior. In consideration of the draft process, some ideas are put forward on the road, as long as the drunken driving motor vehicles will be investigated for criminal responsibility, on the face is too wide, people drink wine to drink the same amount of different, the reaction is not the same, suggestions for drunk driving have "serious" and other constraints. In fact, this view is the judgment of national standard and usually drunk to judge whether a person drunk folk standards be confused. Folk to judge whether the drunken standard is generally based on whether the drinker feel dull, staggering gait, do not listen to discourage, slurred speech, be dead drunk, vomiting in external performance to be judged. And the judgment of drunken national standard is judged according to the alcohol content in the blood. According to the provisions of the State Administration of Quality Supervision Inspection and Quarantine issued in May 31, 2004 "vehicle drivers blood, breath alcohol content threshold and inspection", every 100 milliliters of blood alcohol concentration vehicle drivers is greater than or equal to 20 mg, and less than 80 mg for drink driving; every 100 milliliters of blood alcohol concentration greater than or vehicle drivers equal to 80 mg for drink driving. According to the concerned department, as long as a person drink three two liquor, alcohol content in the blood can reach a standard. In consideration of the draft are proposed to increase the "conditions of serious" drunken proposal, by the Ministry of public security, the State Council Legislative Affairs Office and other departments to study that, drunk driving standard is clear, to draw the line between driving and drunk clear, and has been implemented for many years, not a big problem occurs in practice. If the additional provisions "serious" and other constraints, it is difficult to grasp the actual implementation, is not conducive to the prevention and punishment of this crime, proposed to maintain the provisions of the draft, the legislation adopted the views.

In the process of soliciting opinions, a lively discussion on drunk driving should be convicted. Opponents say, different concepts of crime in China and the western countries, the public security management punishment behavior in China, is the basic crime in foreign countries. If we take the other punishment still acts violating the administration of public security, only to drink driving, drag racing and other act provides for the crime, the punishment and the penalty may be uncoordinated places. Drunk driving will be as a crime in the criminal procedure, from the public security organ for investigation, the procuratorial organs prosecution, the parties entrusted, as well as the court of first instance, the second instance, and the judgment comes into force after the possible appeal, retrial, the consumption of social resources, time, energy and money cost, will be several times or even several times in the administrative penalty, even through summary procedure the most economical, the cost is far higher than that of administrative sanctions. The relationship between the input and output efficiency, is needed to be considered in the process of legislation of the problem. In addition, every year because of drunk driving conviction is not a decimal, heaviest sentence just six months in detention, after wearing a top hat criminals, resettlement will become a burden of the society, the side effects. Proposed changes to the road traffic law, not to drunk driving traffic accidents, increase administrative penalties.

In view, a behavior should be crime should be based on the social hazardous size to choose. Drunken driving caused heavy casualties happened again, prove to prohibit drunk driving ineffective administrative punishment. Drunk driving to endanger people's lives and health caused by the more and more big, the society requires the drunk driving into the punishment of the voice of a wave after wave, drunk driving will be the crime is a positive response to public opinion, embodies the people-oriented, to protect the people's livelihood concept and laws for drunk driving behavior of zero tolerance of judicial spirit, can compression discretionary space law enforcement, reduce the interference of human and privileges, conducive to the implementation of equality before the law.

About 3 of the dangerous driving crime punishment. Considering that the first paragraph of this article refers to drunk driving and drag racing is no accident, the law provides for the lighter penalty: "drive a motorized vehicle on the road racing, if the case is serious, or in the way of drunken driving motor, detention, and a fine of."

Applicable law 4 about dangerous driving constitutes another crime. The second paragraph of this article is about the pursuit of driving behavior driving or drunk, also constitutes another crime law how to apply. According to the provisions of this paragraph, with the concurrence of circumstances, shall be punished in accordance with the provisions of heavier punishment. Here mainly relates to how to deal with the relationship between crime and traffic accident crime, the provisions of the crime of endangering public safety and other charges in a dangerous way, mainly in the following circumstances: first, on the relationship between crime and the crime of causing traffic casualties of the provisions, if the driving or racing intoxicated person, causing casualties or heavy losses to public or private property, in accordance with article 133rd of the criminal law of the crime of traffic accident, according to the second paragraph of principle, should be in accordance with the provisions of article 133rd of the criminal law in the traffic accident crime shall be convicted and punished, and the behavior of people drunk driving or racing driver behavior, will be severely punished sentencing consideration. Second, about the provisions of crime and in a dangerous means to endanger public security crime of how to deal with relationship. Should be in accordance with the supremeCivil lawInstitute "drunk driving criminal law guiding opinions" spirit, accurate identification, treatment. The article 115th of the criminal law of the crime of endangering public safety is a serious crime, the crime should be strictly, on the behavior of people is regarded as the crime of endangering public safety also need to be appropriate punishment, penalty according to the crime.

(two) added to avoid paying, crime of refusing to pay the remuneration

In recent years, labourers remuneration always is an outstanding problem in the labor dispute. According to introducing the labor administrative department of the State Council, relates to labor compensation dispute has been the highest in all kinds of labor dispute at the top. Arrears of wages to migrant workers is particularly prominent, the UN is the most severe. The laborers' remuneration for labor survival and other basic human rights and family harmony, social stability. Default worker pay a serious violation of the legitimate rights and interests of workers, destroyed the order of the socialist market economy, some even lead to mass incidents and many social contradictions, become an important factor affecting social stability. In recent years, governments at all levels have carried out the clean-up of arrears of wages special rectification activities, although received a certain effect, but still not fundamentally solve the problem. The competent department of labour administration by law enforcement power in the treatment on the dispute of limits, means is insufficient, inadequate, resulting in wage work formed in mid Qing, mid owe situation. In view of the above, in recent years, the National People's Congress, the relevant departments of the government and the unions repeated proposals, suggestions, and points out that the malicious arrears of workers compensation, is essentially a kind of exploitation and fraud, violations of the most basic human rights to remuneration of workers, administrative means to curb this phenomenon occurs, should apply to the criminal sanctions, the Act provides for the crime, deterrence and containment of the trend of increasing.

The process of soliciting opinions to the nation in the draft also has many opinions against the malicious back pay crime, as malicious wage belongs to administrative law, labor law, is mainly the labor contract law and the law has not been effectively implemented, should strengthen labor supervision and labor enforcement law, workers encounter malicious wages can be solved by the labor inspection, the labor contract dispute to arbitration or bring a lawsuit to the court, the court required to pay the labor remuneration, refusing to pay according to article 313rd of the criminal law refuses to execute judgment convicted processing, the direct use of the criminal law malicious back pay problem, will lead to the degradation of other dispute settlement mechanisms, to bring great pressure to the existing judicial power, attack is too large.

The legislature after thorough investigation and study, based on the demonstration, integrated views of all sides, "criminal law amendment (eight)" one article is added in 276th, as one of 276th ": labor remuneration to the transfer of property, escape to avoid paying the worker or the ability to pay and no pay labor remuneration the workers, the larger amount, the relevant departments of the government shall pay still do not pay, is less than three years imprisonment or criminal detention, or be fined; if the consequences are serious, department for more than three years of less than seven years imprisonment, fined.

"The unit crime mentioned in the preceding paragraph, it shall be fined, and the person in charge directly responsible and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph."

"The acts mentioned in the preceding two paragraphs, if serious consequences have not yet resulted, pay the remuneration of workers in the public prosecution, and bear corresponding liability for compensation according to law, can be reduced or exempted from punishment."

This article to evade payment, refusing to pay laborers remuneration crime made the following provisions:

1 the subject of the crime is general subject. Any natural person with escape, refused to pay the workers to pay labor remuneration or unit.

2 people have "to transfer property, escape to avoid paying the remuneration of workers or the ability to pay and no pay labor remuneration" workers' behavior. Specific include two kinds: one is "to transfer property, escape method to avoid paying the remuneration of workers", this is a very bad to evade payment of workers' compensation act. "The transfer of property" refers to the act of evasion pay worker will property or operating income transfer to him, to make administrative organs, judicial organs or on the person cannot find. "Escape" refers to the act of evasion to pay labor remuneration or to avoid administrative organs or judicial organs investigated and escape from local or hiding. The provisions of this article "Remuneration", refers to workers in accordance with the labor law and the labor contract law labor income, its scope includes but not limited to wages, wages. The labor department August 4, 1995 "on the implementation of the provisions of the labour law '' of the people's Republic of China:" opinion "in labor law 'wages' refers to the employing units in accordance with the relevant provisions of the state or the stipulations of the labor contract, the labor remuneration to the laborer directly in monetary form of payment, generally including hourly wages, piece rate wages, bonuses, allowances and subsidies, to extend the working hours of wages and the wages paid under special circumstances." Two is the "ability to pay and no pay labor remuneration" workers' behavior, refers to the behavior person has to pay worker's funds or property, but in a variety of ways, all kinds of excuses not to pay laborers remuneration.

3 escape payment or the ability to pay and not pay worker must reach a larger amount, and the relevant departments of the government shall pay still do not pay, will constitute a crime. This provision is mainly based on the following considerations: escape to pay or not pay worker phenomenon is relatively common in our country, the larger was treated as a crime, you can narrow the scope of attack. In addition, do not pay worker is solved by the civil procedure law in many countries, the criminal law of our country although the increase in crime, shall be investigated for criminal responsibility but not purpose, make people pay laborers remuneration was the ultimate goal. Therefore, we should make the existing labor dispute and give full play to the advantages and function of administrative procedure is simple, quick resolution mechanism, so that the worker as soon as possible to get remuneration. Are clearly defined in China's labor law, labor contract law and labor security supervision regulations and other laws, and regulations, do not pay worker behavior, by the relevant government department shall order it to pay. The provisions of this article is not to pay "by relevant government departments shall pay", it shall be investigated for criminal responsibility, help to urge people to perform its payment obligations, but also provides a strong legal backing for strong labor supervision department shall order it to make people pay labor remuneration. According to the provisions of this article, "the amount is bigger, the relevant departments of the government shall pay still do not pay" is the necessary condition of this crime, are indispensable. The article on the "large amount" did not make specific provisions, judicial authorities may summarize the experience of judicial practice in the law enforcement process, make specific judicial interpretation.

4 about the penalty. This article to evade payment, refusing to pay laborers remuneration crime punishment: two file is avoiding the payment or refusing to pay the remuneration of workers, which constitutes a crime, and three years in prison or detention, or be fined; for causing serious consequences, shall at more than three years to seven years in prison, fined. The so-called "serious consequences", generally refers to the worker's person, home security, life caused serious injury or cause socially very bad influence, such as do not pay or not pay worker in a timely manner, that affect the worker family life or survival; cause laborer self injury, insanity or because a life without forcing the crime of serious harm the social order; the mass incidents caused serious consequences.

5 the unit crime stipulated. This article is to avoid paying, unit commits the crime of refusing to pay the remuneration as stipulated. "The unit crime mentioned in the preceding paragraph, it shall be fined, and the person in charge directly responsible and other directly responsible personnel punishment," according to the provisions of the preceding paragraph, in accordance with the penalty prescribed in the first paragraph. The section of the "unit", refers to the provisions of the labor contract law for employers, including the legal qualification of the employing units and does not have the legal business qualification of the employing units and the dispatch of units.

6 specifies commits this crime can be mitigated punishment or be exempted from punishment condition. The provisions of this article: "the acts mentioned in the preceding two paragraphs, if serious consequences have not yet resulted, pay the remuneration of workers in the public prosecution, and bear corresponding liability for compensation according to law, can be reduced or exempted from punishment." To make this crime may be reduced or exempted two conditions of punishment:

First, the behavior constitutes the crime as prescribed in this article but "no serious consequences". Usually refers to: (1) although not paid or not paid promptly worker pay, but did not affect worker family life or survival; (2) did not cause laborer self injury, mental disorders or the implementation of crime; (3) did not lead to group events and other serious consequences etc..

Second, "pay laborers remuneration to initiate a public prosecution, and bear corresponding liability for compensation according to law". "Pay worker" to initiate a public prosecution, refers to the people's Procuratorate prosecution in front, the unit or individual on the full payment of the remuneration of workers; "bear the corresponding compensation liabilities according to law", mainly refers to the act in accordance with the labor contract law requires full payment to workers compensation and economic compensation responsibility.

It should be pointed out that, the above two conditions must be met, it "can be mitigated punishment or be exempted from punishment", and not be mitigated punishment or be exempted from punishment. Whether the reduction, exemption from punishment, according to the specific circumstances of the case made by the judges the discretion.

In practice, pay attention to the following areas shall, in applying this article: (1) the circumscription between criminal and civil disputes. Neither in the crime, blow too broad, also cannot have to deal with civil disputes, the criminals will not be punished. (2) strictly grasp the following three lines: first, correctly distinguish the crime prescribed in this rule and general wage behavior. For the reasons for difficulties in the capital turnover, operating without or mismanagement and temporarily unable to pay the labor remuneration, should not be included in the scope of criminal law. Shall require the operator to take the initiative to sign the settlement agreement with workers, clearly eliminate the time and amount, will not eliminate should bear the legal responsibility, this kind of cases to be resolved within the framework of the law on Mediation and arbitration of labor disputes to the next. Second, with the ability to pay without pay is restricted by many complex factors, should be based on more comprehensive judgment and grasp aspects of human behavior; third, the provisions of the third paragraph of the "may be mitigated or exempted from punishment" two conditions should be serious enforcement, when Yan, Yan, the width is wide. (3) of this article will delay the payment according to, or refuses to pay the workers' Compensation Act provides for the crime, but does not affect the worker in accordance with the labor law, labor contract law, the administrative civil way to recover wages, safeguard their legitimate rights and interests.

(three) modify, perfect production, sales of counterfeit drugs crime

Drugs for the prevention, treatment of special goods. Counterfeit drugs can not cure, but will delay, aggravating illness, and even cause disability or death. The problem of fake medicine in recent years is a social problem social reflect strong. The state has always attached great importance to the social public safety in production, the provisions of the criminal law, the crime.

Article 141st of the criminal law of the provisions of the first paragraph: "production, sales of fake drugs, to serious harm to human health, is less than three years imprisonment or criminal detention, or impose a single sales amount of fifty percent to less than two times the fine; cause serious harm to human health, Department for more than three years to ten years in prison, and sales the amount of fifty percent to less than two times the fine; when causing death or serious harm to human health, department for more than ten years of imprisonment, life imprisonment or death, and the sales amount of fifty percent to less than two times the fine or confiscation of property." In legislation, law enforcement agencies reflect the provisions, encountered the following problems in practice:

1 requirements must be "constitute the crime of fake drugs to serious harm to human health", practice due to difficult to determine causality, hit hard. Reflect the state drug administration departments, the causal relationship between the drug and the serious harm to human health which, due to individual physical condition difference, drug pharmacology, drug effect on the body length of time is different, some drugs harm symptoms in some physical, some symptoms was not obvious, some medicines for human health may be long time out. In practice, the harmful consequences to human health is difficult to pinpoint the drug or disease caused by itself, or because of other diseases, the long-term consequences of taking drugs more uncertain whether there will be hidden. According to the current level of science and technology and medical detection means, is difficult to fully identify the causal relationship between the drug and the harm to human health consequences, also weakened efforts to crack down on production, sales of counterfeit in practice. The article 141st of the criminal law "provisions to serious harm to human health", caused by the food and drug regulatory authorities transferred to judicial organs cases exist "difficult, difficult to register, the conviction difficult" phenomenon. According to the Supreme People's court statistics, 2005-2008 years, the complete production, sales of counterfeit cases only more than 300 pieces, accounting for about 1/1000 of the total investigation of counterfeit cases.

2 weak punishment. The original provisions, constitute the crime of producing, selling fake drugs, can also be a certain amount of sales or single point penalty, the punishment too light.

3 for the producers of fake drugs meet difficulty in the investigation. Although the criminal law legislative intent of this crime is to crack down on counterfeit production, the seller. But in practice, some departments, the provisions of the criminal law on the production, sales of counterfeit crime except to freedom penalty, but also "and the sales amount of fifty percent to less than two times the fine", no sales of counterfeit drugs on the production, there is no sales amount, the criminal responsibility, how to recognize the existence of the amount of the fine, differences, cause some fake producers did not receive due punishment.

In recent years, the National People's Congress, law enforcement agencies and the public have a strong appeal for the revision of the relevant legislation, to crack down on the production, sales of counterfeit drugs crime. The legislature on the basis of deep research, "criminal law amendment (eight)" the provisions of the first paragraph of article 141st of the criminal law was revised.

1 the production, sales of counterfeit provisions for the crime, reducing the threshold for conviction. Delete the original provisions of fake "elements to serious harm to human health" crime, revised the crime is the behavior crime, as long as the implementation of the production, sales of fake drugs constitute crime, can be more effectively crack down on production, sales of counterfeit drugs crime.

Remove the 2 "single penalty provisions", and can increase the applicable conditions of heavier punishment. In the second sentence "can be applied to the provisions of the three to ten years in prison in addition to retain the" conditions "has caused serious harm to human health", increased "provisions or other serious circumstances", which means, although there is no real consequences caused serious harm to human health Kang, as long as the mass production, sales of counterfeit and other serious circumstances, can also apply to the stall penalty; in suitable condition for third punishment "for more than ten years imprisonment, life imprisonment or death", in addition to retain the original provisions prescribed by the "causing death", will "or there are other particular harm to human health" is amended as "or other especially serious circumstances", mainly refers to the production, sales of counterfeit drugs are administered, leaving many people with severe disabilities, and with the production, sales of counterfeit drugs, particularly large number case, this will be more conducive to the fight against this kind of crime after modification.

3 more likely to apply fine penalty. Delete the original provisions of the "sales amount of fifty percent to less than two times the amount of the fine" calculation rules, direct provision "shall also be fined". Not only further clear, whether in production or in the sales of counterfeit drugs, producers, sellers should be punished, but also solve the judicial practice, some of the production of fake drugs crime due to the amount of the fine that the sales amount, it is difficult to determine the problem.

(four) to revise and improve the production, sales do not meet the food safety standards of food crime

Food safety problem in recent years has become one of the most concerned problems for the whole society. According to statistics, the number of food poisoning in China between 200000 and 400000 a year, about food poisoning each year in more than 100000 pieces of complaints. In recent years, some enterprises or individuals for profiteering, ignoring the basic moral bottom line, in all aspects of food production, processing and sales, or shoddy work to lower the quality standards, or join the poisonous and harmful inferior raw materials, additives, production, sales do not meet the food safety standards of food. From tonyred seasoning, clenbuterol pork, carcinogenic tea to melamine powder, poisonous rice, food safety incidents strongly stimulate the people's nerves. Illegal traders brought great harm and huge economic losses not only to the consumer's health and life safety, but also produced great influence in the domestic and international.

The criminal law 143rd stipulation: "the production, sales do not meet the health standards of food, enough to cause a serious accident of food poisoning or other severe food borne diseases, is less than three years imprisonment or criminal detention, or impose a single sales amount of fifty percent to less than two times the fine; cause serious harm to human health, department for more than three years less than seven years imprisonment, fined the amount of sales fifty percent to less than two times the fine; if the consequences are especially serious, department for more than seven years of fixed-term imprisonment or life imprisonment, and sales amount of fifty percent to less than two times the fine or confiscation of property." The relevant departments to reflect, this article encountered the following problems in implementation:

1 article 143rd of the criminal law and the rules of the food safety law does not converge. In abolishing the food sanitation law, China's edible agricultural products quality and safety standards, food hygiene standards, food quality standards are formulated by the agriculture administrative department of the State Council, the administrative department of public health and quality supervision departments. These standards, and some are mandatory standards, there is the recommended standard. In 2009 the Standing Committee of National People's Congress passed the food safety law, shall be specified by the health administrative department of the State Council compulsory standards on these standards be integrated, unified announced as the national food safety standards. The food safety law has "food sanitation standard" to "food safety standards". The relevant provisions of the criminal law should also be connected with the in.

2 weak punishment. According to the regulations, production does not conform to the hygiene standards of food constitutes a crime, the light can be fined, the punishment too light.

3 do not meet the health standards of food producers have difficulties in investigation. Although the original intention of legislation of this crime is the criminal law is to crack down on does not conform to the hygiene standards of food production, the seller, but in practice, some departments that do not conform to the hygiene standards, the provisions of the criminal law on the production, sale of food crime except sentenced to punishment against freedom, also set to "impose sales amount of fifty percent to less than two times the fine," on the production has not sold out, there is no sales amount, should be investigated for criminal responsibility, how to be sentenced to a fine amount, sometimes there are different views, resulting in some inferior food producers did not receive due punishment.

On the basis of deep research, "criminal law amendment (eight)" the 143rd was modified: first, will "do not meet the health standards of food" to "does not conform to the food safety standards of food", linked to food safety law in 2009 and adopted by the. Second, cancel the single fund punishment, strengthen the crackdown on crime. Third, increase the application of heavier punishment condition. Will not meet the food safety standards of food enough to cause "food borne disease" to "food borne disease"; in addition to the "serious harm to human health," added "or other serious circumstances", as one of the suitable second punishment aggravation plot punishment, increase the content is mainly to reduce the this kind of crime investigation, investigation evidence difficulty. "Other serious circumstances" includes the production, sales do not meet the food safety standards of food, although did not cause serious harm to human health or the consequences are difficult to ascertain, but from the illegal profits, sales amount of food quantity, food spread, which can prove its serious harm, still can legally impose heavier the penalty. Fourth, more easy to apply fine penalty. Delete the original provisions of the "sales amount of fifty percent to less than two times the amount of the fine" calculation rules, direct provision "shall also be fined". Not only further clear, both in the production chain, or in the sales process, the poisonous and harmful food producers, sellers should be punished, but also solve the judicial practice, some food safety crime because the sales amount is found, the amount of the fine is also difficult to determine the problem.

(five) to revise and improve the production, selling poisonous, harmful food sin

The criminal law 144th stipulation: "in the production, sale of food mixed with poisonous, harmful non food raw materials, or knowingly sells mixed with toxic, harmful non food raw food, is less than five years imprisonment or criminal detention, or impose a single sales amount of fifty percent to less than two times the fine; causing a serious accident of food poisoning or other severe food borne diseases, cause serious harm to human health, department for more than five years to ten years in prison, and sales amount of fifty percent to less than two times the fine; when causing death or serious harm to human health, shall be punished in accordance with the provisions of this article 141st." In legislation, law enforcement agencies to reflect, this article encountered the following problems in practice:

1 weak punishment. According to the regulations, the production of toxic and harmful food, which constitutes a crime, the light can be detention or fines, penalties are too light. In addition, the heavier punishment shall be sentenced to constitute a crime, more constraints. In addition to the requirements of "causing serious harm to human health," and "causing a serious accident of food poisoning or other severe food borne diseases" limit. In fact, serious harm to human health caused by poisonous and harmful food, not limited to cause serious food poisoning or other severe food borne diseases. Practice for the causal relationship and the appraisal conclusion caused by foodborne disease often debated, impact on the fight against crime.

2 for the toxic, harmful food producers should not be investigated for criminal responsibility and sometimes ambiguous. Although the original intention of legislation of this crime is the criminal law is to crack down on the poisonous and harmful food production, the seller. But in practice, some departments, the provisions of the criminal law on the production, selling poisonous and harmful food crime except to freedom penalty, also required to "impose sales amount of fifty percent to less than two times the fine", on the production has not sold out, no amount of sales problems, should be investigated for criminal responsibility of producers, how to be sentenced to a fine sometimes, understanding differences, lead to some toxic, harmful food producers did not receive due punishment.

Based on the study, "criminal law amendment (eight)" in article 144th of the criminal law of the production, selling poisonous, harmful food sin was modified.

1 in the first file delete the provisions of punishment can be sentenced to criminal detention and punishment, strengthen efforts to crack down on the crime of poisonous and harmful food production, sales.

2 modified the conditions imposed heavy penalties. In the second sentence can be "five to ten years in prison" deleted "conditions caused a serious accident of food poisoning or other severe food borne diseases," added "provisions or other serious circumstances", namely, whether or not to cause food poisoning and food borne diseases, as long as to human health caused serious harm, or with a large number of production, selling poisonous and harmful food, or other serious circumstances, can apply to the file in the applicable penalty; third punishment "for more than ten years imprisonment, life imprisonment or death" conditions ", in addition to retain the original provisions of the death", will "or to human health caused serious harm especially" is amended as "or other especially serious circumstances", mainly refers to the production, selling poisonous and harmful food, when consumed, leaving many people severely disabled, and has a particularly large number of production, selling poisonous and harmful food, etc., this will be more conducive to the fight against this kind of crime after modification.

3 more likely to apply fine penalty. Delete the original provisions of the "sales amount of fifty percent to less than two times the amount of the fine" calculation rules, direct provision "shall also be fined". Not only further clear, both in the production chain, or in the sales process, toxic, harmful food producers, sellers should be punished, but also solve the judicial practice, the crime of poisonous and harmful food, some production sales amount is found, the difficult problem of determining the amount of the fine, the court sentenced penalty more easy to apply.

(six) the new food safety supervision dereliction of duty crime

Food safety incidents in recent years around the frequency, the relevant government departments of dereliction of duty problems on the supervision of food safety has been the subject of social criticism. Some departments do not for food safety regulation exists in name only, some for food safety regulatory functions of the staff of state organs, although be forgetful of one's duties or suspected breach of privilege, has rarely been investigated for criminal responsibility. To ensure that the people's diet safety, rely on penalties related to enterprise is clearly not enough, must take the supervision departments of dereliction of duty staff should be brought into the scope of punishment, for dereliction of duty personnel shall be investigated for legal responsibility. In recent years, the National People's Congress, law enforcement agencies and the public are strongly called for amendments to the criminal law, shall be investigated for malfeasance government food regulatory dereliction of duty personnel.

In fact, in 1997 397th of the criminal law on the staff of state organs and the crime of breach of privilege be forgetful of one's duties crime made general provisions. Responsible for the food safety supervision and management responsibilities of the personnel of state organs breach of privilege or be forgetful of one's duties constitute a crime, is in accordance with the provisions of the conviction and punishment. Considering the food safety related to people's health and vital interests, in recent years in the areas of food and have a major food safety accident, the community reacted strongly, the legislature on the basis of deep research, one article is added in the criminal law, as one of 408th. This article on the food safety supervision dereliction of duty crime and punishment provisions of the following contents:

1 subject of this crime is the state organ personnel responsible for the food safety supervision and management responsibilities. Responsible for the food safety regulatory responsibilities mainly include the State Council and the local people's governments at all levels and health administration, agriculture administration, quality supervision, industry and commerce administration, food and drug supervision and administration staff. In some places, the authority of food safety supervision and management institutions authorized by the government to exercise, according to the Standing Committee of National People's Congress ("on the criminal law of the people's Republic) is the crime subject of the ninth chapter of the interpretation of the subject of crime", institutions and organizations entrusted by state organs exercise their functions and powers on behalf of the staff can constitute a crime.

2 people must have a "breach of privilege or be forgetful of one's duties". This is the two most typical behavior of malfeasance. "Breach of privilege", is the responsibility of food safety supervision and management duties beyond the authority, illegal decision, decision, its do not have the right to handle matters, or handle official business in violation of the provisions of the act. "Be forgetful of one's duties", is the responsibility of food safety supervision and management duties seriously irresponsible, do not perform or do not conscientiously perform their duties behavior.

3 "breach of privilege or be forgetful of one's duties, causing a major food safety accidents or other serious consequences", to constitute a crime. Here the "major food safety accidents", refers to food poisoning, food borne diseases, food pollution source in food, human health risks of major accidents or may be hazardous. The food poisoning, food is the acute onset of toxic pollution of food or food containing toxic and harmful substances in food after,, subacute disease. Foodborne disease, infection, poisoning, a disease of pathogenic factors of food into the human body caused by. "Other serious consequences," is not a major food safety accident, but because of the food safety supervision and management problems, causing other serious consequences.

About 4 of the penalty of sin. According to the provisions of this article, a food safety supervision dereliction of duty crime, the behavior person is less than five years imprisonment or criminal detention; if the consequences are especially serious, department for more than five years to ten years in prison. Here the "consequences" is particularly serious, including both lead to food safety incidents especially important, also cause other especially serious consequences.

The second paragraph of this article is about how to play favouritism and commit irregularities crime penalty provisions. Here the "play favouritism and commit irregularities", refers to personal affair, self-interest. This kind of behavior from the individual interests, the state and the public interests, subjective malignant than mere supervision dereliction of duty crime, therefore, the provisions of this paragraph, play favouritism and commit irregularities committed the first sin, in the first paragraph of the statutory sentencing range shall be given a heavier punishment.

(seven) modification and perfection of the crime of major environmental pollution accident.

Environment is the foundation of human survival and development. With the rapid development of China's social productive forces, the rapid economic growth, increasing population, industry and agriculture and life pollutant emissions continue to expand, the environmental pollution and environmental damage has reached an unprecedented level, the ecological environment of our country is facing a very grim situation. The criminal law 338th stipulation: "in violation of state regulations, to the land, water, air emissions, dumping or disposal of radioactive waste, waste containing pathogen of infectious diseases, toxic substances or other hazardous waste, causing serious environmental pollution accident, serious consequences resulting in serious losses to public or private property or human casualties" constitutes the major environmental pollution accident crime

Law enforcement department pointed out, environmental pollution has become a serious social problem in china. Pollution incidents is an indisputable fact, but it is inappropriate for criminal law, environmental crime ridden situation in front in the face of the feeble, cause serious pollution of the environment behavior is not due to criminal sanctions, investigate its reason, major environmental pollution accident crime criminal law problems in practice:

1 to the actual harmful consequences for criminal elements which leads to insufficient pollution combating environmental crime. The crime to the actual cause loss of public or private property or casualties as the constitutive elements of crime, means that no matter how behavior caused serious pollution to the environment, the serious consequences as long as no cause of public or private property losses or serious personal injury or death, shall be investigated for criminal responsibility is not polluters. From a number of major environmental pollution incident has occurred, the local government to take emergency measures, costs a lot of manpower and resources, to avoid the serious consequences of personal injuries, but because of the consequences of the legal requirements of the no pollution, to criminal sanctions.

2 pollution emission scope is too narrow. Emissions of criminal law has caused a serious environmental pollution accident is "to the land, water, air emissions, dumping or disposal of radioactive waste, waste containing pathogen of infectious diseases, toxic substances or other dangerous wastes", narrow scope. Toxic substances are not waste, causing serious pollution to the environment is not only waste and toxic substances, and other harmful substances.

The causal relationship between the 3 pollution act and harmful consequences difficult to determine. Because this crime to the actual harmful consequences as the constitutive elements of crime, must wait for harmful consequences and exact quantification can be investigated for criminal responsibility, human behavior. Environmental pollution consequences are diversity, latent, the causal relationship between the identified environmental pollution harm behavior and harm result, is a big problem. To accurately assess the direct damage to crops, livestock, aquaculture, pollution of the environment, the impact on public health, animal and plant life, water pollution and environment deterioration has been persistent, to clean up pollution, improve the environment need to how much money to invest, then calculates the loss of property, takes a long time. For not the sudden environmental pollution accident, pollution damage, but long-term accumulation, even to people's life and health, safety and property caused significant loss is also very difficult to be investigated for criminal responsibility. If the pollution of the environment is composed of some enterprises illegal discharge of various toxic and harmful chemical substances interact of common cause, to find out the causation and pollution liability between pollutant harmful consequences and all enterprises illegal discharge is more difficult. From the management of suspected of the crime of major environmental pollution accident cases, without exception, economic relations and causal pollution caused loss has become the focus of the dispute. A reality awkward is, a lot of serious pollution of the environment behavior should not be criminal sanctions, the relevant departments to the administrative penalty or punishment manner, and ultimately to administrative fines and civil compensation.

Some departments and legal expert advice according to the legislative experience of environmental protection characteristics, the punishment of crimes of endangering environment abroad and China's environmental protection needs, serious harms to the environment behavior, a necessary condition for the occurrence of harmful results constitute a crime as not will, increase the provisions of dangerous criminal of environmental crime in the legislation, strengthen the pollution of the environment criminal punishment, so as to better protect our living environment. After repeated study, "criminal law amendment (eight)" to article 338th of the criminal law is amended as: "in violation of state regulations, discharge, dumping or disposal of radioactive waste, waste containing pathogen of infectious diseases, toxic substances or other harmful substances, severe pollution of the environment, and three years in prison or criminal detention, or be fined; if the consequences are especially serious, department for more than three years of less than seven years imprisonment, fined." This article made the following changes to the original provisions:

1 reducing crime threshold. The crime from the original "has caused a serious environmental pollution accident, serious consequences" resulting in serious losses to public or private property or human casualties is amended as "serious pollution of the environment", this is the most important modification. This includes both a major environmental pollution accident resulting in personal injury or loss of property, also did not cause significant environmental pollution accident, but in the long run, in violation of state regulations, super standard discharge, dumping, disposal of hazardous substances, the environment is seriously polluted or destroyed.

The range of 2 to expand emissions, dumping or disposal of hazardous substances. The original provisions of the "other hazardous waste" is amended as "other harmful substances", including other included in the national list of hazardous waste and identified according to the identification standard for hazardous wastes as stipulated by the state and the identification methods have hazardous properties of waste and other common contaminants.

(eight) modification and perfection of the crime of illegal mining

Non renewable mineral resources, is an important guarantee for the sustainable development of national economy, the state has always attached great importance to the protection of mineral resources. Article 343rd of the criminal law on the crime of illegal mining first stipulates: "mineral resources law, not a mining license, unauthorized entry into national planning mining area, has the important value to the national economy and other mining area mining, unauthorized exploitation of the State applies the specified minerals of which protective mining, the shall be ordered to stop production after refusing to stop mining, causing damage to the mineral resources, is less than three years imprisonment, criminal detention or control, or be fined; caused severe damage to mineral resources, department for more than three years of less than seven years imprisonment, fined."

Law enforcement agencies reflect: the existence of a large number of undocumented exploitation of mineral resources make in practice. The crime, but the public security organ for investigation of the case are not many, transferred to the procuratorial organs prosecution of illegal mining case less, can sue to the court judgment on the crime of illegal mining generating very little. This embarrassing situation caused by the following main:

In "the 1 shall be ordered to stop the mining refuses to stop mining" as the constitutive elements of the crime of illegal mining, is not conducive to the fight against illegal mining act. From the elements of the crime of illegal mining point of view, there are three conditions: (1) no mining permit unauthorized mining, unauthorized entry into the criminal law of the mining area; (2) was ordered to stop mining refuses to stop mining; (3) causes damage to the mineral resources. These three conditions in the crime must be available at the same time, otherwise, the illegal mining activity that no matter how serious, can only be issued shall be ordered to stop the exploitation of the notice, still refuses to stop mining may constitute the crime of illegal mining and illegal mining people notice. Because of illegal mining in the mountains, and the communication tools developed, law enforcement action is easy to be found, law enforcement officers rushed to the scene, the illegal personnel have rushed to escape, not issued normative documents of administrative law enforcement of specific personnel, the lack of the legal evidence, cannot form "shall be ordered to stop mining refuses to stop mining". Many illegal mining personnel use of loopholes in the law to mining of mineral resources, mineral resources of the state suffered serious damage, it is difficult to be prosecuted.

2 illegal mining act "by the damage to the mineral resources" to constitute a crime, is not conducive to the illegal mining sanctions. Illegal mining will destroy the mineral resources and the ecological environment. But according to the provisions of the criminal law, shall be ordered to stop illegal mining act by mining refuses to stop mining, causing damage to the mineral resources will constitute a crime. The Supreme People's court "on hearing the illegal mining, destructive mining criminal case concrete application law interpretation of several issues" the sixth stipulation: "the destructive mining methods and causes damage to the mineral resources amount or serious damage, appraisal conclusion issued by the competent department of Geology and mineral resources at the provincial level or above, is verified to be found after." The identification of high threshold, great restriction to combat illegal mining. One is the private mining mouth too much, all by the provincial identification unit identification is not practical, not to make the appraisal conclusion; two is the identification of the cost is too high, the provincial identification of a mine mouth at least appraisal cost is in thirty thousand yuan of above. Because the private mining mouth too much, appraisal cost the local government can not afford, leading to the relevant departments to identify the enthusiasm is not high, handed over to the public security organs to investigate or transferred for examination and prosecution, the majority of cases because of a lack of evidence for withdrawing treatment, is not conducive to the fight against illegal mining act.

In recent years, the National People's Congress, law enforcement agencies and the public have a strong appeal for the revision of the relevant legislation, to severely punish illegal mining crime. The legislature on the basis of deep research, according to the views of all parties, the relevant provisions were modified.

"Criminal law amendment (eight)" on the crime of illegal mining of:

1 will be "shall be ordered to stop mining refuses to stop mining, causing damage to the mineral resources of the constitutive elements of crime," changed to "serious", reducing the threshold for conviction. Constitute the crime of illegal mining act in five ways: (1) not a mining license; (2) to enter the national planning mining; (3) entered has important value to the national economy of mining; (4) entered the mining area mining; (5) unauthorized exploitation of the State applies the specified minerals of which protective mining, delete "shall be ordered to stop mining refuses to stop mining, caused by the requirements of the mineral resource destruction" conditions, as long as there is any of the above actions, "serious", constitutes a crime of illegal mining, reducing the conviction criterion, and a more powerful to punish the illegal mining crime. As for what constitutes a "serious", can be made by the Supreme People's court, the Supreme People's Procuratorate on the basis of summing up the judicial practices, through judicial interpretation should be clear.

The 2 second penalty will apply the condition by "serious violations" modification for "if the circumstances are especially serious". This includes not only has the mineral resources caused serious damage, but not limited to, the specific circumstances by the "two high" on the basis of summing up the judicial practices, through judicial interpretation should be clear. Seven, criminal law enlarges to the vulnerable groups
   (a) to revise and improve the crime of forced labor, forced labor crime added to assist others
   Forced labor is a naked violation of workers basic human rights crimes, it deprives the employee free choice the right to work, to restrict or deprive the freedom of the person, the workers as a "slave", forcing, enslave them long time engaged in the high strength work, not only bring harm to the health of the workers, causing serious damage to the laborer spirit. In recent years, something happened in brick kilns, black coal mines and enterprises in the frightful to the ear of the forced labor events once again attracted the attention of the whole society to workers of basic human rights.
   The Chinese government has been unequivocally opposed forcing others labor behavior. In 1997 the provisions of the criminal law of the crime of forced labor. The criminal law 244th stipulation: "the employing unit violates labor laws and regulations, forcing workers to labor by restricting personal freedom, if the circumstances are serious, the persons who are directly responsible, is less than three years imprisonment or criminal detention, or be fined." In legislation, administrative law enforcement departments, legal experts and lawyers reflected, the criminal law 244th stipulation encountered the following problems in implementation:
   1 subject of crime is not clear. The subject of the crime is the "employer", the premise is "in violation of the labor management regulations". "Employer" is the unique concept of labor law in china. According to the relevant provisions of the labor law and the labor contract law, establish labor relationships with workers to be called "the employer". In judicial practice, often encounter not having the qualification of legal entity employer or employers of illegal recruitment, employment practices, they are usually not signed labor contracts with workers, not establish labor relationships with workers, forced labor in its place, for the subject of crime and crime does not match the identity, should not be subject to punishment.
   2 this crime is the unit crime and natural crime has been debated. Some believe that, from the criminal law 244th stipulation, "employers violate labor laws and regulations, forcing workers to labor by restricting personal freedom, if the circumstances are serious", it is a crime. According to the principle of legality, subject of the crime of forced labor should be employer. When the natural person "to the restriction of personal freedom of forcing workers to labor", but did not violate other laws case, finally can only be innocent treatment, also influence on the crime of forced labor strike. What happened in Shanxi black coal kilns forced migrant workers labor cases, rarely investigated for criminal responsibility in the crime of forced labor, mostly to other convicted and punished.
   3 penalty too light. The constitution of this crime, "is less than three years imprisonment or criminal detention, or be fined", the penalty is too light, no show penalty according to the crime.
   Some departments, in recent years, the organizations and individuals dedicated to force others to work in places to recruit, shuttle, transport personnel society. They used the threat of violence, deception and other means to force others to work in places to recruit, transfer, their profit from. Although these people do not participate in the labor force others to work place in crime, but it is precisely because of these people to recruit, transfer behavior, the Everfount workers into forced labor of misery, the law shall be investigated for criminal responsibility of these people.
   In December 26, 2009, the eleventh session of the Twelfth Meeting of the NPC Standing Committee, China's accession to the "United Nations Convention against transnational organized crime prevention, suppress and Punish Trafficking in persons, especially women and children behavior of the protocol" (hereinafter referred to as "" Additional Protocol ""), the protocol requires States parties to take the necessary legislative and other measures, will be forced labor, slavery, servitude for the purpose of through coercion, threats of violence or other forms of transportation, recruitment, transfer, harbouring or receiving personnel, the Act provides for the crime.
   In recent years, the National People's Congress, law enforcement agencies and the public have a strong appeal for the revision of the relevant legislation, to crack down on crime of forcing others to work. Some NPC deputies, experts and scholars have proposed the establishment of the crime of forced labor, slavery crime in the criminal law. Facing the new situation appears in practice, for the protection of civil rights and perform the "Additional Protocol" obligation of States parties, to crack down on criminal acts such trampling the laborers' human rights, legislation on the basis of the in-depth study, the relevant provisions were revised and improved. "Criminal law amendment (eight)" to article 244th of the criminal law is amended as: "forcing others to violence, threat or restriction of personal freedom of labor, is less than three years imprisonment or criminal detention, and shall also be fined; if the circumstances are serious, department for more than three years of less than ten years imprisonment, fined.
   "Knowingly commits the act, for the recruiting, transporting personnel or other assistance force others to work behavior, shall be punished in accordance with the provisions of the preceding paragraph.
   "Where a unit commits the crime in the preceding two paragraphs, it shall be fined, and the person in charge directly responsible and other directly responsible personnel, shall be punished in accordance with the provisions of the first paragraph."
   "Criminal law amendment (eight)" in article 244th of the criminal law as amended:
   The subject of the crime of the crime of forcing others to work 1 extended from "employer" to the general subject to forced labor, the "workers" to "others". No unit or individual, regardless of whether or not to establish labor relationships with workers, who have forced others work behavior, can become the subject of the crime.
   2 add the crime of forcing others to work means, and improve the legal punishment of the crime of forced labor. In the criminal means, will "violence or threat," the two most forced labor of others crime means common list, to more effectively combat such crimes. The so-called "violence" is refers to the criminal offender directly to the workers, being beaten damage endangers personal safety behavior, so that it can not resist, escape. "Threat" is refers to the criminal offender to intimidate the laborer, spiritual force, so that it can't resist, escape. "Method" restriction of personal freedom is refers to the restriction from the factory, not to go home, even hiring thugs guarding methods such as illegal restriction of personal freedom of the workers, forced labor.
   In the penalty area, compared with the original provisions, cancel the first gear in the provisions of criminal punishment and an increase in the second sentence, will be the tallest penalty from the original "three years" to "prison" in ten years, reflecting the forced labor crime crackdown on legislative spirit. The so-called "serious" usually refers to the forced many people work long time, forcing others to heavy manual labor or to inhuman treatment forced laborers, specific criteria by the judicial organs according to the actual situation through judicial interpretation to determine. It should be noted that, in practice, if the criminals in the process of forcing others to work in the use of violence, causing the victims to disability, death, shall, according to the relevant provisions of the criminal law, in order to force others to work in crime, the crime of intentional injury or intentional homicide crimes.
   3 new assistance force others to work in crime. "Criminal law amendment (eight)" in the second paragraph of this article to increase assistance force others to work in crime, the main provisions of the following contents: first, the subject of the crime is general subject. The units and individuals can form. Second, the perpetrators have "knowingly commits the act, for the recruiting, transporting personnel or other assistance force others to work behavior". The so-called "knowingly commits the act", refers to the act of the recruitment, transfer the personnel sent to forced labor site mentality is clear. Of course, he suspects, can't listen to their explanations, and in combination with other evidence synthesis judgment. The so-called "recruit", refers to the so-called "legitimate" or illegal means, for certain or uncertain group, recruitment, recruitment, recruitment employment personnel behavior. The criminal practice often the victim eager to apply for a job, to legitimate jobs, preferential treatment means to induce the migrant workers. "Delivery" refers to the use of various means of transport workers. "Other assistance force others to work behavior" refers to the addition of recruiting, transporting personnel, as forced labor units and individuals transfer, harbouring or receiving personnel behavior. The assistance force others to work behavior, contributed to the forced labor crime, a serious violation of personal rights of citizens and social order, shall be punished. China's accession to the "Additional Protocol" also requires the Act provides for the crime. According to the second paragraph, forced labor act knowingly implementation of the provisions of the first paragraph, the recruiting, transporting personnel or other assistance force others to work behavior, shall be punished in accordance with the provisions of the first paragraph of this article. Third, increase the unit commits the crime of forcing others to work, to force others to work in crime penalty provisions. According to the provisions of this paragraph, where a unit commits the provisions of the first paragraph of this article, the two crime, it shall be fined, and the person in charge directly responsible and other directly responsible personnel, shall be punished in accordance with the provisions of the first paragraph.
   (two) improvement of assisting in the organization of prostitution
   China's criminal law to crack down on the organization prostitution crime, defines the organization prostitution crime, forced prostitution and assist the organization prostitution crime. Some departments, in recent years, there is specialized for prostitution recruitment, organization and individual transport personnel, each of them to prostitution, a person can recruit from prostitution operators to get the so-called "reward", "fee", "recruit fee" or "delivery fee". Under normal circumstances, the recruitment, transportation is not organized prostitution members, also do not participate in the places of prostitution prostitution, forced prostitution. At present, for prostitution or forced prostitution cases, "madam", forced prostitution and prostitution bodyguard, thugs, bookkeeper, be investigated for criminal responsibility according to law. But the only organization prostitution recruiting, transporting personnel, are not subject to legal liability. It is these recruitment, transfer, transport of Everfount exploited for sexual exploitation sites, enable more people to fall into hell, criminal law, criminal responsibility shall be investigated in these people.
   "Additional Protocol" requires States parties to take the necessary legislative and other measures, will be the exploitation of the prostitution of others or other forms of sexual exploitation and for the purpose of recruiting, transporting, transfer, harbouring or receiving personnel to establish as criminal offences. "Additional Protocol" to perform the obligation of States parties, to crack down on this kind of violations of human rights, "criminal law amendment (eight)" will be in the third paragraph 358th of the criminal law is amended as: "for the organization prostitution were recruited, transported personnel or other assistance in organizing others prostitution behavior, less than five years period in prison, and shall also be fined; if the circumstances are serious, department for more than five years of less than ten years imprisonment, fined."
   "Criminal law amendment (eight)" the provisions of the major changes the perfect place, is it clear "for the organization prostitution were recruited, transported personnel for assisting in the organization of prostitution" provisions of the act. The so-called "for the organization of prostitution were recruited, transported", refers to prostitution, recruitment, recruitment, recruitment employment personnel, or by providing vehicles transporting recruit for prostitution shuttle, behavior. The so-called "other assisting in the organization of prostitution behavior", mainly refers to the prostitution of others in the activities of the organization, other behavioral help, help, such as "madam" as enforcers, for prostitution watch towers etc.. Assist in organizing prostitution activities, it is also a link to organize other people prostitution, but the role and nature, the behavior of the prostitutes are very different, it is inadvisable to complicity in the crime of organizing prostitution, so this article to help organize the prostitution of others behavior individually prescribed penalty, namely five years in prison, and shall also be fined; if the circumstances are serious, department for more than five years of less than ten years imprisonment, fined.
   (three) the new organizing others betray body organs of crime
   Organ transplantation is a kind of method to treat diseases. Because our country is not perfect organ donation system, some through the human organ transplantation in China is in great demand, and voluntary donations of human organs are rare circumstance, stem from the sale of human organs crime, great human organ transplant market created living organ trading "underground black market". Means the sale of human organs of the organizer or use deception, inducement, or using other poor, need money predicament, in the nationwide recruitment live donor organ, once the living donor cheat to her, sent unified custody, the confiscation of identity cards and mobile phone, cut off all ties, fraud, brainwashing, mandatory means of circle to feed some of the donor, on illegal deprivation of personal liberty, to force the means to force the living donor selling organs, only a small portion of the money for living donor, most fall into their own pockets. Some lawless elements and hospital unscrupulous doctors collusion, without my permission, picked the organ, some against the deceased wishes or their close relatives will take the bodies of the dead organ. At present, in some places, the sale of human organs activities have evolved from scattered to a tissue type, by the early donor and recipient directly linked to trade, development in black intermediary colors organizer to control the entire human organ supply market.
   Organizing others betray body organs, without the consent of the organ or forced removal, deceive others organ donation behavior, is a kind of primitive bloody, acts against humanity, a serious violation of the citizen life, right to health, disrupting social order, with serious anti ethical and social harmfulness. China prohibited the sale of human organs. In 2007 the State Council promulgated the "Human Organ Transplant Ordinance" clearly states: "no organization or individual may, by any means the sale of human organs, and shall not engage in the sale of human organs related activities." In order to combat this crime objective needs and adapt to urge all aspects of society and to ensure the construction of the harmonious society, "criminal law amendment (eight)" one article is added in article 234Th of the criminal law, as one of 234Th ": organizing others betray body organs, and five years in prison, and shall also be fined; if the circumstances are serious, department for more than five years in prison, and concurrently be sentenced to a fine or confiscation of property.
   "Without the consent of the organ harvesting from, or under the age of eighteen organs, or force, deceive others donate organs in accordance with the provisions of this law, article 234Th, article 232nd convicted and punished.
   "Take the body organs against their wishes, or I was not agreed, in violation of state regulations, take the body organs against their close relatives will, in accordance with the provisions of article 302nd convicted and punished."
   "Criminal law amendment (eight)" to add the main rules the following contents:
   1 new organizing others betray body organs of crime. Other human organs as the sale of the object, from their own profit, this naked savage trading not only destroyed the organ provider's health, is also a kind of anti social ethics behavior. The so-called "organizing others betray body organs" specified in the first paragraph of this article, mainly refers to the recruitment, support organ provider of human organs, matching supply and demand sides, and profit from the sale of human organs in the human behavior of others. From the current case, black intermediary many captive human organ provider, is selling other human organ organizers, is the focus of the fight. The provisions of the two speed penalty: organizing others betray body organs, is less than five years imprisonment, fined; if the circumstances are serious, department for more than five years in prison, and concurrently be sentenced to a fine or confiscation of property.
   2 clearly defined for the illegal removal of human organs to the crime of intentional injury, intentional homicide conviction and punishment. Human organ plays an important role in maintaining normal physiological function and health of human body. Here the "removal", actually means in violation of state regulations, non medicine treatment need and cut, the removal of human organs "illegal harvesting", not including the need for medical treatment of medical institutions, resection of disease of human organs from "legal". The provisions of this article to the crime of intentional injury, intentional homicide conviction and punishment of the illegal removal of human organs mainly includes three kinds of act:
   (1) without the consent of the organ harvesting. "Human Organ Transplant Ordinance" is strictly prohibited without the consent of its citizens from living organ, without the consent of removal of the organ, including in my unknown truth from the organ, is a naked violation of personal rights of citizens.
   (2) gather under the age of eighteen organs. Minors are in the growth stage of physical development, the ability to judge of things is still not mature. According to the provisions of this article, whether I agree, as long as the removal of minors organ, will constitute a crime, show the special protection of minors.
   (3) force, deceive others donate organs. The provisions of the "Human Organ Transplant Ordinance", "should follow the voluntary, the principle of free donation of human organs." "Citizens to donate or not to donate their organs rights; no organization or individual may compel, cheat or induce others to the donation of human organs."
   Both without the consent of the organ removal or force, fraud or induce others to donate organs, or gather under the age of eighteen human organ, will "lead to loss of auditory, visual or other organ function", constitute the criminal law ninety-fifth stipulation heavy damage standard. The person who knowingly removal of human organs, will cause others to failure and loss of normal function of the human body, cause serious harm to human health, there may even cause death, still, in accordance with the constitutive elements of the crime of intentional homicide crime of intentional injury, convicted and punished, which is entirely right. From the case of view, engaged in the subject of crime of illegal removal of human organs is that other people in the doctor and collusion behavior.
   3 stipulates "against I liked to pick the body organs, or I was not agreed, in violation of state regulations, contrary to its close relatives will take the body organs in accordance with the provisions of article 302nd of the criminal law act" of the crime of insulting the corpse. This article said "in violation of state regulations, contrary to its close relatives will take the body organs", refers to the violation of the provisions of "Human Organ Transplant Ordinance" article eighth paragraph second, namely "citizens had not said don't agree to donate their organs, the citizen dies, their spouses, adult children, parents can said the citizen common consent to donate organs intention in writing". No organ donation wishes in his left dead, in the absence of their close relatives in written form jointly agreed conditions off its organ, if removal of the organ, contrary to the wishes or their close relatives of the dead will, integrity caused damage, not only is the dignity of the dead the desecration of the close relatives of the dead, but also to bring great pain and injury, insult to the body, which belongs to the criminal law, therefore, this article in accordance with the provisions of article 302nd of the criminal law of the conviction and punishment.
   Eight, modify and improve the relevant provisions of punishment harm national security and the crime of corruption
   (a) to revise and improve the fund crime of endangering national security crime
   Rival institutions, domestic and foreign organizations or individuals collude with each other, mutual support, endanger our national security activities together, is the new situation since the reform and opening up facing China's national security. The 1997 Criminal Law provides funding for crimes of endangering national security crime, the criminal law 107th stipulation: "domestic and foreign institutions, organizations or individuals within the territory of China by organizations or individuals to implement this chapter 102nd, article 103rd, article 104th, article 105th provisions of the crime, the person directly responsible, is less than five years imprisonment, criminal detention, control or deprivation of political rights; if the circumstances are serious, department for more than five years in prison." Some departments, the encountered problems in the implementation of the main, this article only provides domestic and foreign institutions, organizations or individuals within the territory of China by organizations or individuals to implement activities endangering State security crime. In recent years, along with the increase of economic income, the reverse situation occurs, the domestic institutions, organizations or individuals funded overseas organizations or individuals that engage in harm China's national security and criminal activities of the cases have also occurred, but the difficulties encountered in the application of the law. Taking into account article 107th of the criminal law only for funding within the organizational and individual provisions, has not satisfied the need of fighting crime, suggested not funded by the crimes of endangering national security activities were funded identity as a special provisions.
   "Criminal law amendment (eight)" to Article 107th of the criminal law is amended as: "domestic and foreign institutions, organizations or individuals to support the implementation of chapter 102nd, 103rd, 104th, 105th provisions of the crime, the person directly responsible, is less than five years imprisonment, criminal detention, control or deprivation of political rights; if the circumstances are serious, department for more than five years in prison." "Criminal law amendment (eight)" in article 107th of the criminal law amendment, the main is to be funded from object identity restrictions. According to the provisions of the revised by sponsors, no longer limited to or individuals in the organization, funded by overseas organization or individual to implement the hazard of the people's Republic of China national security related crimes, the same can be convicted and punished according to the provisions of this article. The modification and perfection of the provisions of the criminal law on the crime of endangering national security activities funded crime, providing a legal basis for the attack this kind of crime in the increasingly complex international environment.
   (two) modify the escape crime
   Who is a serious crime of endangering national security. China's criminal law in 1979 1997, the criminal law provides for the crime. In 1997, the criminal law 109th stipulation: "state functionaries in performing his duties, leaves his post without permission, from overseas or on the outside of the country, endangering the state security of the people's Republic of China, is less than five years imprisonment, criminal detention, control or deprivation of political rights; if the circumstances are serious, department for more than five years to ten years in prison." "Master state secrets commits the crime in the preceding paragraph, in accordance with the provisions of the preceding paragraph shall be given a heavier punishment."
   Some departments, the main problems encountered in practice the rule is: according to the provisions of this article shall flee crime must meet three conditions: one is the escape behavior in performing his duties; two is a criminal suspect who leaves his post without permission, foreign behavior, or absent without leave, on the outside of the country's behavior; three. Acts endangering the state security of the people's Republic of china. In judicial practice, the third condition is often understood as "the suspect conducted activities endangering State security in the country, can be recognized as crime". Resulting from between the crime and other crimes of endangering national security law concurrence. In addition, by personnel from overseas is implemented in harm China's National Security Act, the implementation of which harm China's National Security Act, the investigation organ is difficult to grasp and forensics. In recent years, some workers of state organs who outside or on the outside of the country, caused huge losses to the state, a serious threat to national security and interests, but no way to rebel against the treatment of escape. Some staff members of state organs as the public identity of its own, known in the relevant work in matters relating to state secrets, the traitorous act itself, is a violation of the state's betrayal, caused the state secrets, national security is endangered consequences. To strengthen the crackdown on the loose, suggested to cancel "endangering national security" provisions.
   "Criminal law amendment (eight)" to Article 109th of the criminal law is amended as: "the State functionaries in performing his duties, leaves his post without permission, from overseas or in the outside of the country, is less than five years imprisonment, criminal detention, control or deprivation of political rights; if the circumstances are serious, five to ten years in prison." "Mastering the state from overseas secret national staff or on the outside of the country, in accordance with the provisions of the preceding paragraph shall be given a heavier punishment." "Criminal law amendment (eight)" provisions of the original text make two changes:
   1 out of the personnel of state organs. The original provisions, required to constitute the crime of endangering national security. The so-called "performing his duties", mainly refers to the staff of state organs on behalf of the state to perform his duties during the period, such as the national authority, delegate to access our embassy diplomats consulate and represent our country to perform duties in foreign institutions and international agencies period. State organ personnel turnover in the overseas study, or to visit relatives and friends abroad, tourism, do not belong to the provisions of this paragraph during the performance of official duties. "". "Absent without leave", refers to the permission to leave the representative countries perform their duties in violation of the provisions of the post. "Flee", mainly refers to the organization in the overseas institutions,, or directly to relevant foreign organizations, against the state behavior, such as seeking political asylum or refuge to foreign diplomatic envoys, China announced the abandonment of the people's Republic of China nationality act. It should be noted that, although a treason to delete the original provisions of "endangering State security of the PRC" restriction conditions, but still retains a "renegade" provisions, need to have the behavior to prove whether a betrayal of the country. Workers of state organs in general to study abroad, visiting relatives and friends, travel abroad not to can not simply with "renegade" draw equal sign.
   2 for the secrets of the national staff constitute the crime of escape conditions has been modified, deleted the constraints in performing his duties being absent without leave. That is the master of the state secrets of the national staff whenever, in what circumstances will constitute the crime of escape, thereby increasing efforts to crack down on the crime.
   (three) the new bribery of foreign public officials, officials of public international organizations crime
   In 1997 163rd of the criminal law of the provisions of the first paragraph: "the company, the enterprise personnel who take advantage of their office, extort or accept bribes, for the benefit of others, the larger amount, is less than five years imprisonment or criminal detention; the enormous amount of, at more than five years in prison, and may concurrently be sentenced to confiscation property." Specified in the first paragraph of article 164th: "to seek illegitimate interests, giving the company, the enterprise staff to property, large amount of, is less than three years imprisonment or criminal detention; the enormous amount of, at more than three years to ten years in prison, fined." The amendments to the criminal law by June 29, 2006 tenth session of the National People's Congress Standing Committee of the twenty-second meeting of the "(six)" non national staff of article 163rd of the criminal law of the crime of bribery has been modified, added about the company, enterprises outside the "other units" of the non national staff bribery crime. Taking into account the bribery and bribery are on offense, with this correspondence, "criminal law amendment (six)" in article 164th of the criminal law was amended to companies, enterprises, other than "other units" non national staff bribery behavior crime.
   Some departments, along with China's reform and opening up, the international economic exchanges have increased, in the foreign exchanges if the bribery of foreign public officials and officials of public international organizations to seek illegitimate commercial interest, not only violates the fair competition of the market rules, also affect the reputation of Chinese enterprises and business reputation. "The United Nations Anti-corruption Convention" requires that each State Party shall take legislative measures necessary, the bribery of foreign public officials and officials of public international organizations act as crime and criminal responsibility. In October 27, 2005 tenth session of the National People's Congress Standing Committee of the eighteenth meeting approved to join the "United Nations Anti-corruption Convention". China as the "United Nations Anti-corruption Convention" of the parties, the bribery of foreign public officials and officials of public international organizations act as crime and punishment, and also an important measure for our country firmly carry out anti-corruption convention.
   "Criminal law amendment (eight)" in article 164th of the criminal law was amended, the main is to increase the bribery of foreign public officials, officials of public international organizations crime. The constitution of this crime has two main conditions:
   1 the perpetrators have given to foreign public officials and officials of public international organizations to property bribery. Here the term "foreign public official" refers to foreign appointed or elected to the legislative, executive, administrative or judicial office staff, as well as foreign countries and public institutions or state-owned enterprises to exercise functions of a public officer; "officials of public international organizations" refers to the international civil servants or the international organizations authorized to act on behalf of that organization personnel.
   2 people bribery purpose is "to seek illegitimate business interests". This is defined according to the relevant provisions of "United Nations Anti-corruption Convention". "Specified in the first paragraph of article sixteenth of the UN Anti-Corruption Convention": "each State Party shall take the necessary legislative and other measures, will intentionally, implementation of the Act provides for the crime: directly or indirectly to the officials of foreign public officials or public international organization promise, proposal to give or giving the public officer himself or other persons or entities illegitimate benefits, in order to make the public official or the officials in the performance of official duties or omission, in order to obtain or retain and international business related commercial or other unfair." The treaty "and the international business of commercial or other illegitimate benefits" range is greater than in the criminal law of our country "unfair interests", and not easy to hold, according to the statement for the purpose of bribery criminal law of our country, "criminal law amendment (eight)" as "to seek the improper business interests". This section also on where a unit commits the crime prescribed in the regulations and punishment. Adopt double punishment principle of unit crime, the unit shall be sentenced to a fine, and the persons directly in charge and other directly responsible personnel according to the provisions of the first paragraph of this article, about individual bribes to the company, enterprise or other unit personnel be punished.
   In the "criminal law amendment (eight)" the draft revision process, some departments, the new "given to foreign public officials and officials of public international organizations to property" and the provisions of the criminal law to the national staff bribery crime is very similar, should be placed in Chapter eighth chapter of crimes of embezzlement and bribery in criminal law. But others view, "foreign officials or officials of public international organizations" should not be equated with China's "national staff", "to seek illegitimate business interests" bribing foreign officials or officials of public international organizations and companies, enterprises in the economic activities "to seek illegitimate interests" bribery the more similar, and to the non national staff bribery together provides a more appropriate, the final adoption of the latter opinion.
   Nine, the improvement of the other crimes
   (a) new virtual development ticket crime
   In recent years, countries in the full implementation of the "Golden Tax Project", crime of falsely making out special invoices for value-added tax have been effectively curbed, lawless elements to illegal and criminal target and focus on common invoice. Because of the common invoice variety, judging is more difficult, more provides convenient conditions for this kind of illegal and criminal activities. Some units use false invoice cash for the unit welfare subsidies and other illegal purposes; some people to use the false invoices for reimbursement; in government procurement and construction projects, some of the commodity or the service provider false invoices to reduce costs, and by reducing the price, bribery and other channels conveying interests; some use of false invoices to avoid paying taxes. Sampling from the tax auditing organs and departments, in the finance and insurance, construction and installation, catering and other service industries, and even some administrative units, using fake invoices are already very common. The huge demand for false invoice the buyer's market has also spawned a seller's market flourishing business. Some lawless elements and units, the seemingly legitimate business and tax as a cover, from the tax authority a lot of arbitrage cheat invoice, in the absence of actual business situation, for obtain illegal interests, engage in false invoice activities, or they take "datouxiaowei", "Yin and Yang" ticket "true ticket Xukai" technique, or the direct use of forging or altering the invoice or invoices, according to the sale or charge billing fee, from profiteering. The spread of false invoices provides convenience for tax evasion, tax fraud, occurrence of financial fraud, embezzlement and bribery, the squandering of public funds, money laundering crime, seriously disrupt the market economic order, contributing to the spread of corruption, corrupt social values, with serious social harm.
   In recent years, the National People's Congress, law enforcement agencies and the public are strongly urged to revise and improve the criminal law to crack down on violations, false, false invoices. The legislature on the basis of the in-depth study, the relevant provisions were modified. "Criminal law amendment (eight)" in the second paragraph, delete the criminal law 205th at the same time, increase the one in article 205th of the criminal law, as one of 205th: "other invoices Xukai 205th article of this law, if the circumstances are serious, is less than two years imprisonment, criminal detention or control, and shall also be fined; if the circumstances are especially serious, department for more than two years of less than seven years imprisonment, fined." "The unit crime mentioned in the preceding paragraph, it shall be fined, and the person in charge directly responsible and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph." The provisions of this article mainly includes the following contents of falsely making out invoice crime:
   1 action "falsely making out other invoices" outside the law 205th stipulation behavior. The so-called "205th provisions other than the invoice", refers to the addition of special VAT invoices and can be used for other ordinary invoices for export tax rebates, tax function payment voucher and payment vouchers, including both really ordinary invoice, including forged, altered or false invoices. The so-called "false", consistent with the act of falsely making out the criminal law 205th stipulation, is for others, or do so for oneself, let others do so for oneself, introduce others to falsely issue.
   Falsely making out invoice behavior 2 behavior, "if the circumstances are serious". The so-called "serious", mainly for the number of general Xukai invoice, the invoice amount or any. The specific crime standard by judicial organs on the basis of practice through the judicial interpretation of specific provisions.
   3 the penalty of the crime. The provisions of this article the second sentence: for Xukai invoice, if the circumstances are serious, is less than two years imprisonment, criminal detention or control, and shall also be fined; if the circumstances are especially serious, department for more than two years of less than seven years imprisonment, fined.
   4 the provisions of unit crime. For where a unit commits the crimes, to implement the dual penalty system, namely, the unit is to be fined, and the persons in charge directly responsible for the direct responsibility and other persons, shall be punished in accordance with the provisions of the first paragraph.
   In the legislative process, some departments recommended the use of false invoices behavior crime, separate regulations. Taking into account the use of false invoices case is complex, false invoices itself, although most are using forged invoices, but also use true false false invoice transaction information; on the use of false invoices to see, the use of false invoices may be involved in a variety of crime. Such as the use of false invoices to obtain funds for personal possession, according to different main body, can constitute a crime of corruption, embezzlement; to use fake invoices for different purposes, can also constitute the crime of tax evasion, export tax rebate fraud crime, the crime of smuggling and the crime of dividing the state-owned assets. The use of false invoices for different purposes, different penalty charges, but also a big difference. No matter how to use purpose, unity of false invoices one crime to punish is not very appropriate, therefore did not adopt the views.
   (two) new holdings forged invoices
   The 1997 revision of the penal code, criminal behavior on the use of special invoices for value-added tax and other tax invoice management system of state failure has made the explicit stipulation. Of falsely issuing exclusive value-added tax invoices or other invoices to defraud export tax rebates, tax deduction of the crime; forge or sell forged special invoices for value-added tax crime; the sale of special VAT invoice illegal crime; illegal purchase special invoices for value-added tax or purchases forged special invoices for value-added tax crime; forgery, unauthorized producing or selling counterfeit, unauthorized manufacture can be used for defrauding export tax refunds, other invoices tax crime; theft of exclusive value-added tax invoices or other invoices to defraud export tax rebate can be tax deductible, a crime; illegal manufacturing, sale of illicit manufacture of invoice crime, or illegally selling invoice crime, criminal law has stipulated investigation of criminal responsibility.
   Reflect the public security, tax authorities, in recent years, the sale of ordinary forging false invoices has become a shortcut to illegal profits. A false invoice cost only a few cents, but after the transportation, wholesale and sales of intermediate links, highest can sell tens of dollars, if sold by the invoice amount, even can sell hundreds or even thousands of yuan. The huge profit driven, market the rapid prosperity of false invoices, showing some new features: one is the crime of occupation, networking, and regional characteristics. Some lawless elements to family, friends, geopolitical relationship as link, perennial entrenched throughout the city, forming the occupation crime network meticulous division of labor, well-organized forgery, fraudulent sales, false invoices, and spread to the surrounding area; two means of crime is high-tech, professional, strong concealment. Seized of the case from the look, in recent years the level of making false invoices significantly improve. Illegal use of computer, camera, scanner, printer, printing machines and other professional equipment and professional drawing software forged invoices, simulation is extremely high, authenticity, and changing the way, through regular migration counterfeiting production line, the use of printing on demand, large sell, single track connection method to avoid combat, strong concealment; three false invoices variety, large quantity, wide. In recent years, the number of false invoices, the tax authorities seized the annual increase the speed of a few times, the number of false invoices in 2010 only police seized over million copies. The present investigation of false invoices dens situation, each dens false invoice types at least a dozen, most of the hundreds of species.
   Law enforcement agencies in the investigation of criminal cases reflect, invoice, often seized a large number of false invoices in the suspect's side, premises or means of transport, but can not find out whether the suspect counterfeit false invoices. Although the judge these false invoices may be for sale according to the signs, but due to the sale of fake invoices behavior are not account, no other evidence, it is difficult to sell illegal invoice shall be investigated for criminal responsibility. The existence of blind spots in the forgery and selling fake invoices law intermediate link behavior. Fake invoices not only seriously disrupt the market economic order, but also provide the conditions for other crimes, further breeding corruption, corrupt social values, social harmfulness. If this kind of behavior can not be investigated for criminal responsibility, to combat and curb the rampant fake invoice crime momentum no good.
   The legislature on the basis of the in-depth study, the relevant provisions were modified. "Criminal law amendment (eight)" one article is added in article 210th of the criminal law, as one of 210th: "knowing is forged invoices and hold, large quantity, is less than two years imprisonment, criminal detention or control, and shall also be fined; the number of big, two to seven years in prison, and shall also be fined." "The unit crime mentioned in the preceding paragraph, it shall be fined, and the person in charge directly responsible and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph." "Criminal law amendment (eight)" in this article with forged invoices mainly has the following elements:
   1 the behavior must to knowing the holdings of forged invoices, not knowing that can not be regarded as crime. Of course, he can't listen to suspect my excuse, should other evidential materials combined with case of comprehensive analysis, comprehensive judgment.
   2 people hold forged invoices, a large amount of. The article "hold" refers to the behavior of people in a state of possession, control, control of forged invoices. Not only carry on forged invoices can be identified as holding, and found in their home, driving on the means of transport or act of mailing forged invoices can also be identified as holding. "Forged invoices", including not only the fake invoice, but also forged special invoices for value-added tax and other export tax rebates, tax function of payment or tax payment receipts. The provisions of this article shall hold forged invoices must be "large quantity", to constitute a crime. As for the "specific standards, a large number of" law is also difficult to make specific provisions, should be based on the practice, the judicial interpretation clearly.
   This article on the invoices with forged provides second penalty, considering that this kind of crime is a profit-making, in addition to the free punishment, also provides additional punishment. In view of the seized fake invoices crime involving units of also many, so this article to the unit invoice forged crime also made provisions.
   Application of this crime should be paid attention to when the point is that, in the "hold" should try to find out the real source of prior to hold suspects forged invoices, only when the evidence is unable to obtain the circumstances, only to the crime and punishment, so as not to put the longitudinal criminals.
   (three) modify the theft
   Theft is an ancient crime, the 1979 Criminal Law of theft. In 1997, the criminal law 264th stipulation, theft of public or private property, a relatively large amount of time or theft, theft. This article according to the social harmfulness of the crime of theft, cancelled after the single criminal law provisions on the crime of theft the circumstances are particularly serious, may be sentenced to death, only to the "theft of financial institutions, if the amount is especially huge" and "theft of precious cultural relics, two serious" retaining the death penalty. In recent years, the relevant departments, the National People's Congress, some experts have proposed, theft crime belongs to the non violent crimes against property, under normal circumstances would not cause personal or other aspects of the serious damage. Two cases of theft in 1997 Criminal Law retains the death penalty, also do not belong to the most serious social harmfulness of crime, the provisions recommended the abolition of theft crime may be sentenced to death. At the same time, the relevant departments, some practice such as theft, burglary, theft, lethal theft behavior, although serious harm to people's property security, and pose a threat to the personal safety, with serious social harm, but often consists of a crime in criminal case is not up to the conviction Standard cannot be convicted and punished, can only be punished, the crackdown is not enough, it is difficult to form an effective deterrent, also affect the enthusiasm of the police and the masses and pocketing the fight against crime, crime molecular secure to rely on, hit repeatedly incessant. Therefore, suggestions for the three act of theft, regardless of the amount, number, can be treated as a crime of theft, criminal penalties.
   The legislature by the study of theft, as amended. "Criminal law amendment (eight)" to article 264th of the criminal law is amended as: "theft of public or private property, the larger amount, or multiple theft, burglary, larceny, theft of carrying weapon, is less than three years imprisonment, criminal detention or control, or be fined; if the amount is enormous or other circumstances are serious at three years, more than ten years in prison, and shall also be fined; if the amount involved is especially huge or other especially serious circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property." This article on the crime of theft has mainly done the following modification:
   1 from the original provisions provisions of theft can be sentenced to death.
   2 will be "a burglary, theft, theft with lethal weapon" three types of direct provision to constitute the crime of theft. This is for major changes to crack down on theft crime made. The so-called "Burglary", refers to the relative isolation for the implementation of theft and into the lives of others and the outside accommodation, including an enclosed yard, nomad tents, fishermen as family living space, the boat house rent for living are stealing behavior. Identification of "home" to pay attention to the following points: one is the "household" should be understood as a residence, its character is for others to family life and relatively isolated from the outside two aspects, the former is the characteristic function, character of place, but not other places, such as unit of office buildings, schools, public entertainment place, dormitory, hotel, temporary work shed. Two is the "home" not only understood as into residential or indoor, to enter the single family residential theft, as long as the actor has entered a residential house, should also be regarded as "a burglary". Enter the family home theft, affect the most basic sense of security, but in such cases the perpetrators belong to the habitual or occupation crime, so it should be severely punished. The so-called "lethal theft", is in the implementation of theft, behavior carry guns, knives, explosives and other countries banned the murder weapon. Lethal theft not only violates the ownership of public or private property, and the person is also a potential threat to. People carrying weapons theft, often secure to rely on, once they are found or captured, use the weapon against them. This behavior is backed by violence, not only violates the property of others, but also for others formed a serious threat, shall be punished. In particular, this article in the crime of theft in the provisions of "carrying weapons theft", refers to the act of carrying weapons to the situation without the use of theft, if the behavior of people in the lethal theft, for booty, resist arrest or destroy evidence and the use of violence or threats on the spot the murder weapon, according to the Provisions Article 269th of the criminal law, shall be convicted and punished for robbery. The so-called "steal", generally refers to the public transportation or at the station, wharf, shopping malls and other public places to steal others' belongings away behavior. The theft of direct contact with citizens, often occur in a public occasion, seriously affect the safety of the masses, serious harm to society. "Criminal law amendment (eight)" will be a burglary, theft and pickpocketing carrying weapons increased crime, embodies the practical concern and strict protection of criminal law of the people's personal and property safety, provide stronger legal weapons to combat theft crime.
   (four) to revise and improve the crime of smuggling ordinary goods, goods
   Smuggling common goods, articles, destroy the customs supervision order, evaded customs duties, thus causing losses to the state tax, resulting in damage to the economy. The criminal law of our country in the 153rd article of the crime of smuggling common goods, goods in the crime of evading taxes should be how the provisions of the penalty, the maximum punishment to death. In the legislative research, reflect some law enforcement agencies, this article has encountered some problems in practice, and puts forward some suggestions:
   1 recommended the abolition of smuggling ordinary goods, crime death penalty. The crime of smuggling ordinary goods, goods economy belongs to the non violent crime, generally will not cause personal or other aspects of the serious damage, do not belong to the most serious social harmfulness of crime, in recent years, the customs general strengthening of the regulatory measures, smuggling cases decreased sharply, should be sentenced to death case is scanty, the provisions proposed to abolish the crime may be sentenced to death.
   2 will be a small number of smuggling crime. Article 153rd of the criminal law, the crime of smuggling ordinary goods items to evade tax fifty thousand yuan as the starting point of punishment, some smugglers to escape legal sanction, take "break up the whole into parts", "ants" type small smuggling, and the rapid spread of potential. This kind of smuggling activities are mostly in the crime of smuggling, the group under the control of a clear division of labor, well-organized, delivered from abroad to domestic goods source organization, each link closely and relatively independent. Some smugglers use packed in his luggage in the goods in the body, bound for means, carry significantly exceed the reasonable use a range of items smuggled by price, profit, or act as smuggling means of transport, goods handling to the designated place to obtain remuneration received. Occupation of the market, the "water", greatly facilitate the smuggling group with lower risk, the efficient implementation of large-scale smuggling activities. According to the relevant departments to reflect, not far from the "water" the station opposite the Shenzhen Luohu port of the Hongkong Special Administrative Region, a standard container high value goods less than half an hour can be made by the "water" in the small smuggling carried into the territory of Shenzhen, the smuggling of shocking magnitude. The smugglers to escape blow, the quantity of each batch of smuggled goods is controlled in fifty thousand yuan of the following. Even behind the smuggling organizers have been investigated for criminal responsibility, but for the "water", because the instant seized when tax evasion has not reached the starting point of punishment, can only carry on the administrative punishment.
   Although article 153rd of the criminal law provisions in the third paragraph: "the smuggling of untreated, according to the cumulative smuggled goods or articles, the amount of tax evasion punishment", but to have received administrative punishment behavior, regardless of the number of how many smuggling and tax evasion are not cumulative, shall be investigated for criminal responsibility. From the current situation of the administrative punishment law enforcement, has no deterrent effect, resulting in "go penalty, penalty situation vicious spiral.", suggest to smuggling to criminal sanctions against the "ant".
   3 modification and perfection of smuggling ordinary goods, goods crime amount standard. Article 201st of the criminal law crime of tax evasion and tax evasion in tax evasion amount amount of taxable amount ratio of the two standards to define crime standard, evade Customs also tax crime, but not the prescribed proportion standard, only provisions for tax evasion fifty thousand yuan as the starting point of punishment, for some foreign trade turnover of large taxpayers, to evade Customs tax fifty thousand yuan RMB as the starting point of punishment did not reflect the principle of suiting punishment to crime, the recommendations of the amount of standard is modified, adding "ratio standard".
   Based on the investigation of the legislature in the relevant provisions of criminal law, decided to make the revision. "Criminal law amendment (eight)" to article 153rd of the criminal law is amended as: "the smuggling of the 151st article of this law, except 152nd, 347th provisions of the goods, articles, according to the seriousness of the case, were punished in accordance with the following provisions:
   "(a) smuggled goods or articles, the amount of tax evasion is big or a year for smuggling is two administrative sanctions and smuggling, is less than three years imprisonment or criminal detention, and the amount of tax evasion is one to five times the fine."
   "(two) smuggled goods or articles, the amount of tax evasion is enormous or other circumstances are serious, department for more than three years to ten years in prison, and the amount of tax evasion is one to five times the fine."
   "(three) smuggled goods or articles, the amount of tax evasion is especially huge or other especially serious circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, and the amount of tax evasion is one to five times the fine or confiscation of property."
   "Criminal law amendment (eight)" on this article mainly made four modifications:
   1 is cancelled, the crime of smuggling ordinary goods the highest death penalty, the life imprisonment.
   2 will be a small number of smuggling crime. According to the practice of "ants" type of smuggling, shall be investigated for criminal responsibility in case of not, will be "a year for smuggling is two administrative sanctions and smuggling" act as crime.
   3 of the amount of tax evasion crime is no longer specified amount. The "amount of tax evasion in fifty thousand yuan less than one hundred and fifty thousand yuan" to "the amount of tax evasion is bigger", "the amount of tax evasion in one hundred and fifty thousand yuan less than five hundred thousand yuan" to "the amount of tax evasion is huge or other serious circumstances", the "tax evasion in the amount of five hundred thousand yuan of above." to "the amount of tax evasion is especially huge or other especially serious circumstances".
   For the amount of tax evasion crime punishment from the standard should not increase the provisions of "standard" also made a careful study. Considering that the import and export trade link to pay customs duties and the enterprise is different to pay tax or the tax authority of the business tax tax, national tax, local tax mostly in an accounting year tax, relatively easy to calculate the amount of tax payable shall be escape tax ratio, and import and export trade is not quantitative, or a year or even a few years only a single foreign trade, if in a fiscal year to calculate the "standard", will not only make the customs supervision difficulty, workload increases, the smugglers, voids may use legal left to get timely punishment. Therefore, does not increase the proportion of "standard".
   4 adjusting punishment order. The penalty from the original from heavy to light changed from light to heavy, and integrate the sentence level, will be five to three penalty punishment.
   (five) on the economic crime of several units directly responsible personnel penalty increases Fa Jinxing
   The criminal law of our country stipulates the principle of double punishment of unit crime. Article thirty-first of the criminal law, the unit crime, the unit will be fined, and the persons directly in charge and other directly responsible personnel penalty. In practice the implementation unit economic crimes, the directly responsible person in charge or the person directly responsible not only is the unit crime decision makers, to obtain illegal interests for the units at the same time, often also received illegal benefits. Personnel directly in charge of the economic crime unit and other directly responsible personnel shall fine penalty, one is the principle of suiting punishment requirements, is conducive to the penalty equilibrium, on the other hand, the criminals in the economy accounted for less than cheap, and is advantageous to the deprived of their ability to meet the crime, requirements of double punishment principle.
   The criminal law 200th stipulation: "where a unit commits the day 192nd, 194th, 195th provisions of the crime, it shall be fined, and the person in charge directly responsible and other directly responsible personnel, is less than five years imprisonment or criminal detention; if the amount is enormous or other circumstances are serious, five years more than ten years in prison; if the amount involved is especially huge or other especially serious circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment." The judicial authorities to reflect, the provisions of this article shall have the following problems in practice:
   1 the law of the amount of the fine low quota. Article 192nd of the crime of fraud, the amount of the fine law, a maximum of five hundred thousand yuan. At present, some of the crime of fraud in financing amount to millions, tens of millions or even billions of dollars, even a fine of five hundred thousand yuan, far below the amount of illegal gains and criminals involved, there should be no economic sanction and deterrent effect.
   2 to the unit crime directly responsible persons in charge and other responsible personnel not prescribed penalty. Article 200th of the criminal law made 192nd fund-raising fraud, 194th the bills defraud crime, crime of financial certificate fraud, 195th letters of credit fraud, the directly responsible personnel only provides freedom penalty, fine penalty has no provisions, to punish this kind of crime and illegal profit model is not enough.
   "Criminal law amendment (eight)" 200th shall be amended as: "where a unit commits the day 192nd, 194th, 195th provisions of the crime, it shall be fined, and the person in charge directly responsible and other directly responsible personnel, is less than five years imprisonment or criminal detention, can impose a fine; amount is huge, or if there are other serious circumstances, five to ten years in prison, and shall also be fined; if the amount involved is especially huge or other especially serious circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, fined." "Criminal law amendment (eight)" the provisions of the amendment is mainly, the unit made the article 192nd of the criminal law, article 194th, article 195th of the crimes specified in the provisions, increase the directly responsible persons in charge and other directly responsible personnel can or should be fined.
   Ten, about the "criminal law amendment (eight)" the implementation date and retroactivity
   In 1997 eighth session of National People's Congress fifth conference after the revision of criminal law, as of February 25, 2011 eleventh session of the nineteenth meeting of the NPC Standing Committee passed the "criminal law amendment (eight)", the NPC Standing Committee has passed the eight amendment to the criminal law. The first seven amendments to the criminal law amendment is effective from the date of publication. Taking into account the "criminal law amendment (eight)" involves many aspects, not only more than the sum of the first six articles of amendment to the criminal law provisions of numbers, and for the first time to the general provisions of criminal law was revised, more content. With the "criminal law amendment (eight)" the implementation of phase matching, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security and other departments need to modify or develop the related judicial interpretation, the judicial personnel training and law enforcement personnel, as the "criminal law amendment (eight)" shall make the necessary preparations. The "criminal law amendment (eight)" content also needs to be widely publicized, so that the masses in the "criminal law amendment (eight)" before the implementation of its contents are necessary for the understanding of the. Therefore, the "criminal law amendment (eight)" the fiftieth stipulation: "this amendment shall enter into force as of May 1, 2011", namely in the "criminal law amendment (eight)" through two months after the entry into force.
   For the effect after the occurrence of behavior, should be in accordance with the "criminal law amendment (eight)" shall be investigated for criminal responsibility. The effect of previous behavior, shall be treated in accordance with the provisions of article twelfth of the criminal law about the retroactivity of criminal law. Because the "criminal law amendment (eight)" is mainly to the 1997 criminal law amendment and supplement of the relevant provisions of the criminal law enacted in 1997, there are specific talk after the "criminal law amendment (eight)" before the implementation of the legal behavior, should be how to apply the criminal law in 1997 and the "criminal law amendment (eight)" the provisions of the processing problem:
   1.1997 years of criminal law is not deemed a crime or is considered a crime but the penalty is lighter, and the "criminal law amendment (eight)" considered a crime or punishment heavier, provisions can only apply to criminal law in 1997, "criminal law amendment (eight)" has no retroactive effect. No amendment to criminal law "(eight)" has the behavior of new provisions for the crime, the subject of crime, the crime scope has expanded into the threshold has been reduced or penalty has been aggravated by investigating the criminal responsibility of the perpetrator or impose a heavier punishment.
   2.1997 years of criminal law as a crime and punishment is heavy, but the "criminal law amendment (eight)" was not deemed a crime or punishment lighter, so long as the behavior without trial or in spite of the trial but the decision has not yet entered into force, should apply the "criminal law amendment (eight)" regulations, "the amendment to the criminal law case (eight)" has the retroactivity.
   3.1997 years of criminal law and the "criminal law amendment (eight)" is considered a crime, shall be prosecuted in accordance with the provisions of the criminal law and the fourth chapter eighth section, shall be investigated for criminal liability according to the principle of criminal law of 1997. However, if and the 1997 criminal law punishment than have to re apply, "criminal law amendment (eight)".
   4 according to the 1997 criminal law has made effective judgment, the judgment shall continue to be valid. Even in the "criminal law amendment (eight)" provisions, the act does not constitute a crime or sentences is the 1997 criminal law should be light, is no exception. Because of an act of criminal law, whether retroactive application, only without trial or even after hearing but has yet to make a judgment on occasion; judgment has come into force, in accordance with the provisions of article twelfth of the criminal law, shall continue to be effective, in order to safeguard the people's court verdicts of the seriousness and stability.

 

[author]
Huang Tai Yun, deputy director of the NPC Standing Committee, the criminal chamber.