Five, improve the fight against organized crimes of the underworld society crime law

(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. Revised 1997The criminal lawIn our country, the legislature organized crime 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 the state and society is gradually revealed, in order to combat against Mafia organized crime, maintain public order, specialized inThe criminal law294th organization of the underworld nature crime provisions.

In recent years, the underworld of organized crime is increasingly rampant in some places, the judicial authorities generally reflect,The criminal law294th 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,The criminal lawArticle 294th for organized crimes of the underworld society crime description used "to dominate the party, do evil, oppression, harming the masses" and other literary language to describe this kind of crime, the external manifestations of facts is not only reflected in the expression, the essence of the underworld organization. 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 theThe criminal lawArticle 294th modification description, as far as possible to reflect the essential characteristic of gangland organizations.

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 ofThe criminal lawArticle 294th does not provide the property punishment, only around theThe criminal lawArticle sixty-fourth 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", because of the underworld property organization often the duration is longer, their industry wide areas, personnel change complex, its assets are in constant development and changes. 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 huge amounts of money around, 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 lawOn the crime of the organizers, leaders of the maximum penalty of only ten years in prison, 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.

4The criminal lawProvisions of the cover, condone Mafia Crime Subject of crime and the legislative interpretation provisions are inconsistent, and the lighter punishment. Some departments put forward,The criminal lawThe provisions of article 294th 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 ChinaThe criminal lawThe 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 criminal lawMaximum statutory penalty shield, the provisions of article 294th 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, did not reflect the umbrella to cover, condone Mafia type hammer from the legislative intent.

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 studies, "The criminal lawAmendment (eight) "toThe criminal lawThe 294th main made the following modifications:

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 NPC Standing Committee passed the "the people's Republic of China on 'in April 28, 2002The criminal law'294th the first interpretation ", to the underworld organization explanation of the meaning of the provisions, the underworld property organization should also have four characteristics. Judicial organs and legal expert thinks generally, the NPC Standing CommitteeThe criminal lawThe first paragraph of article 294th 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, "The criminal lawAmendment (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 modifiedThe criminal lawArticle 294th the original 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, fined 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 of 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 applyThe criminal lawThe general provisions of 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 participate in or organize, 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, proposed to delete "Underworld Organization" in "nature" two words, directly provisions "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. The modifiedThe criminal lawArticle 294th in the file specified in both the property punishment 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 criminal lawSet the property punishment to criminals and ability to eradicate 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. From theThe criminal lawThe provisions of section fifty-ninth, "confiscation of property is the whole or a part of the confiscation of property",The criminal lawNever 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 most common behavior is for umbrella". 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, subject of crime of shield, conniveThe criminal lawAnd legislative interpretations inconsistent,The criminal lawProvisions are the subject of this crime is only limited to the "staff" state organs, and the NPC Standing Committee's legislative interpretations presented in "the shield is state functionary or indulging in", 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 make changes, "The criminal lawAmendment (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 lawRule 274th: "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, in order to avoidThe criminal lawEach blow, 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), not 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, the victim in their mistake in understanding the voluntary delivery of property act, the crime means more serious nature. From theThe criminal lawProtective interest, 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 our countryThe criminal lawIn the crime of theft, 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 on the crime of blackmail and impose exactions onThe criminal lawAmend the provisions.

"The criminal lawAmendment (eight) "toThe criminal lawArticle 274th 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 criminal lawThe original provisions of the crime of blackmail and impose exactions on only stipulated two fileThe criminal lawSet the maximum punishment of ten years in prison, no provisions of the property punishment. "The criminal lawAmendment (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 lawRule 226th: "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.

"The criminal lawAmendment (eight) "toThe criminal lawThe 226th main made the following modifications:

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

Revised 1997The criminal lawWhen, on the original 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 criminal lawProvisions of the supreme punishment 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.

"The criminal lawAmendment (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

1997The criminal lawOnly 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.

"The criminal lawAmendment (eight) "toThe criminal lawArticle sixty-sixth 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 of 1997The criminal lawAs stipulated, 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 affected byThe criminal lawArticle sixty-fifth of the recidivist's 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, strengthen the people's livelihoodThe criminal lawProtection

(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, "The criminal lawAmendment (eight) "the drunken driving and racing two kinds of dangerous driving behavior increased crime.

"The criminal lawAmendment (eight) "inThe criminal lawAfter a 133rd increase, 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 withThe criminal lawElements of the 133rd traffic accident crime, according to the second paragraph of principle, should be in accordance with theThe criminal law133rd the provisions of the traffic accident crime conviction and punishment, 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. The Supreme People's court shall, in accordance with the "drunk driving criminal law guiding opinions" spirit, accurate identification, treatment. BecauseThe criminal lawThe provisions of article 115th 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, is the mainThe labor law, laborContract LawSo the law has not been effectively implemented, should strengthen labor supervision andThe labor lawThe enforcement of 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 theThe criminal lawArticle 313rd of refusing to implement the judgment of court processing, the direct use ofThe criminal lawRegulation of the malicious back pay problem, will lead to the degradation of other dispute resolution mechanism, brings 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, "The criminal lawAmendment (eight) "one article is added in 276th, as one of 276th": to transfer property, escape to avoid paying the remuneration of workers or the ability to pay and no pay labor remuneration, labor amount is larger, the relevant departments of the government shall pay still do not pay, less than three years in prison or 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 the employee in accordance with theThe labor lawAnd laborContract LawThe provisions of the labor income earned, its scope includes but not limited to wages, wages. The labor department August 4, 1995 "on the implementation of 'of the people's Republic of ChinaThe labor law'opinions "provisions on some issues:"The labor lawIn the 'wages' refers to the employing units in accordance with the relevant provisions of the state or the stipulations of the labor contract, money paid directly to the units of labor remuneration of workers, 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, ChinaThe criminal lawAlthough 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. Our countryThe labor law, laborContract LawAre clearly defined 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 laborContract LawIn accordance with the provisions of the employing units, 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 laborContract LawFull 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 theThe criminal lawAdjustment range. 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 theThe labor law, laborContract LawAnd other laws, 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, inThe criminal lawSet production, sale of fake crime.

　　The criminal lawSpecified in the first paragraph of article 141st: "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 the amount of sales 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. BecauseThe criminal lawArticle 141st "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, from 2005 to 2008 years, the national total 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. AlthoughThe criminal lawProvisions of legislative intent of this crime is to crack down on counterfeit production, the seller. But in practice, some departments consider,The criminal lawProvisions of 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, should be investigated for criminal responsibility, how to judge the penalty amount, there are different views, led 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, "The criminal lawAmendment (eight) "toThe criminal lawThe first paragraph of article 141st provisions were modified.

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 lawArticle 143rd stipulates: "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, more than three years in seven years in prison, and sales amount of 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:

1The criminal law143rd the provisions of the food safety law does not converge with. 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 criminal lawThe relevant provisions should also be connected with the.

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. AlthoughThe criminal lawThe provisions of legislative intent of this crime was to crack down on does not conform to the hygiene standards of food production, the seller, but in practice, some departments consider,The criminal lawThe provisions do not meet the health standards of 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 in part, the inferior food producers did not receive due punishment.

On the basis of deep research, "The criminal lawAmendment (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 lawRule 144th: "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; serious food poisoning accidents 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; cause death or particular 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. AlthoughThe criminal lawThe provisions of legislative intent of this crime was to crack down on the poisonous and harmful food production, the seller. But in practice, some departments consider,The criminal lawThe provisions of 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, there is no sales amount, should be investigated for criminal responsibility of producers, how to be sentenced to a fine, sometimes understanding differences, resulting in part poisonous, harmful food producers did not receive due punishment.

Based on the study, "The criminal lawAmendment (eight) "toThe criminal law144th 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 have a strong appeal toThe criminal lawModify the accountability government malfeasance, dereliction of duty personnel of food.

In fact, 1997The criminal lawArticle 397th the State functionaries 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, in theThe criminal lawAdd a, 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 National People's Congress Standing Committee of the people's Republic of China ("The criminal lawThe problem of subject of crime) is the ninth chapter of the interpretation ", the subject of the crime of institutions entrusted by the representative shall exercise its functions and powers of state organs workers also 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 lawRule 338th: "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" constitute a 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, the reason,The criminal lawThe major environmental pollution accident crime 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.The criminal lawProvisions emissions 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, "The criminal lawAmendment (eight) "will beThe criminal law338th shall be 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, is less than three years imprisonment or criminal detention, or impose fines; if the consequences are especially serious, three years more than seven years in prison, 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.The criminal lawThe first paragraph of article 343rd of illegal mining crime stipulated: "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, through order stop after mining refuses 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 accessThe criminal lawProvisions 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 theThe criminal lawThe provisions of the act shall be ordered to stop illegal mining, the 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.

"The criminal lawAmendment (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.

(the writer is the Standing Committee of the NPC Law CommitteeThe criminal lawOffice of the deputy director)