The amendments to the criminal law applicable to the changes brought about by the criminal law

 

Shanghai lawyer Liu Wenguang

 

The principle of legality is accompanied by the progress of human civilization and gradually release their dazzling rays of light, the stability of the criminal law, the criminal law of national prediction on the possibility of eliminating the feudal monarchy dictatorship, brings people fear. Retroactive law as an important content of the principle of legality, including: (1) the act does not constitute a crime under the ban, after making charges behavior has been implemented at the end of the defendant guilty; (2) prohibits the application after making the lower crime standard evaluation has been implemented for the defendant the end of the guilty (3) prohibits the application after the formulation of the more severe punishment for the accused to discretionary punishment ended has been implemented, etc..

Human beings never forget the dictator, fascist leader Hitler, has used the Weimar constitution of 116 ("any act, only when the law had stipulated the penalty, can be sentenced to a punishment" defective retroactive law) and the 1871 German penal code article second (complete retroactive law) difference the negative effect of the German penal code, article second, implementing fascism penalty, the subsequent increase the punishment has legal support, any suspects, defendants are subject to capital punishment, severe threat. "No more than under the law excuses and act fairly do more brutal tyranny, because in this case, we can say, unfortunate people are drowning in their own salvation on the springboard". Retroactive law principles on the other hand, is not prohibited from the original behavior after charges of innocence, is not increased after the offence standard is not forbidden to apply after the light punishment regulations etc..

"PRC Criminal Law" Twelfth article: "after the people's Republic of China was established before the implementation of this law, if the law is not considered a crime, applicable law at that time; if the laws at the time considered a crime, in accordance with the provisions of law fourth chapter eighth section should be prosecuted, in accordance with the the criminal responsibility of legal, but if this method is not considered a crime or imposes a lighter punishment, this Law shall apply." On the retroactive law embodies the principle from the old criminal law principles and light. Today, the seven amendment to the criminal law as a new criminal law, due to the presence of add, delete, reduce the charges, increase, increase, reduce crime constitution standard and so on, in the judicial process will inevitably encounter modifications have been made on how to apply the criminal law amendment. Therefore, changes in the explicit cognition criminal law amendment brings, can avoid the fuzzy about the retroactivity of criminal law, the lead defense during the big direction error.

 

Note: the name is discussed in this paper, modify, delete the amendment to increase charges, the basis for "The Supreme People's Court on the implementation of the people's Republic of China Criminal Law '' to determine the regulation of charge"And"The Supreme People's court, the Supreme People's Procuratorate on the implementation of the people's Republic of China Criminal Law '' of the supplementary provisions to determine charges"(a) to (three).

 

 

The criminal law amendment

1999Years12Month25DayPromulgated by the

Criminal law amendment a total of nine, made eight changes. Add 5 crimes; crime composition standards increased 1, reduce crime constitutes the standard 2;

First, modify the article 162nd of the criminal law. Increased crime, concealment, deliberately destroying accounting vouchers, accounting books, financial and accounting reports of crime.

Second, to modify the article 168th of the criminal law. Increased crime, increase the State-Owned Company, enterprise, institution personnel dereliction of duty crime. Reduce the offence standard, reduces the State-Owned Company, enterprise, institution personnel breach of privilege offenses constitute a standard, do not need to "play favouritism and commit irregularities" this objective elements, "play favouritism and commit irregularities" change as the penalty heavier punishment.

Third, to modify the article 174th of the criminal law. Reduce the offence standard, increase the financial institutions to set up the crime, counterfeit, alter, transfer of financial institutions operating license, approval documents of the objective elements of crime, "securities exchanges, securities companies, futures exchange, futures Broker's Firm, insurance company also constitute a crime".

Fourth, to modify the article 180th of the criminal law. Reduce the offence standard, modified the insider trading, the subject of the crime, the objective elements, subject to increase the "futures trading insider" "illegal futures trading information staff", objective behavior increased "has significant influence on the related futures or futures price information before engaging in futures trading has not yet been made public, associated with the insider information".

Fifth, to modify the article 181st of the criminal law. Increased crime, constitution of selective accusations and sin, fabricate and disseminate false information of securities, futures crime; increase the lure investors buy and sell futures contracts crime.

Sixth, to modify the article 182nd of the criminal law. Increased crime, constitution of selective accusations and sin, manipulating the trading prices of securities, futures crime.

Seventh, to modify the article 185th of the criminal law. Increased the offence subject limit standard, the crime of misappropriation of funds for the "commercial" bank; reduce the offence standard, increase the "securities exchanges, securities companies, futures exchange, futures Broker's Firm, insurance company" has become the subject of the crime of misappropriation of funds. Reduce the offence standard, "the state-owned banks, stock exchanges, securities companies, futures exchange, futures Broker's Firm, insurance company" has become the subject of the crime of embezzlement of public funds.

Eighth, to modify the article 225th of the criminal law. Reduce the offence standard, increase the "unless approved by the competent departments of the state, illegal operation of securities, futures and insurance business" as the objective behavior of the crime of illegal business operation a new.

Criminal law amendment two

2001Years8Month31DayPromulgated by the

The amendments to the criminal law two a, do a revision: reducing crime constitutes the standard 1.

First, modify the article 342nd of the criminal law. Increase the "forest" as the object of the crime of illegal occupation of land the new crime.

Criminal law amendment three

2001Years12Month29DayPromulgated by the

Criminal law amendment Sankyo nine, made twelve changes: increase 4 charges, increased crime constitutes the standard 1, reduce the offence at the standard 2 increased 5.

The first, second, modify the article 114th of the criminal law, 115th. Increased the offence standard, restrictions on poisoning crime "poison", limited to "poisonous, radioactive, infectious disease pathogens and other substances".

Third, to modify the article 120th of the criminal law. Increased crime, increase the "organization, leading a terrorist organization" as a plot of aggravating circumstances, make the organization, leadership, participating in terrorist organizations crime in aggravated circumstances. Increased crime, on the "other participants" increased "deprivation of political rights" novel.

Fourth, to modify the article 120th of the criminal law. Increased crime, increased funding terrorist activity crime.

Fifth, to modify the article 125th of the criminal law. To reduce the crime constitution of second standard, the objective constitution behavior extends the "illegal manufacturing", "illegal storage", from "nuclear material" to "toxic, radioactive, infectious disease pathogens and other substances" in the behavior of objects, from the type of crime, this crime by the abstract dangerous crime is amended as concrete dangerous crime, in addition to other articles clear requirements of constitutive elements of the crime of endangering public safety, but also "".

Sixth, to modify the article 127th of the criminal law. Increased crime, on the basis of the original theft, snatch firearms, ammunition, explosives, this crime with the abstract dangerous crime of theft, robbery, increased the dangerous substance. The concrete dangerous offense. Increased crime, make the abstract danger based on the original robbery guns, ammunition, explosives, crime, robbery crime of dangerous substances increase the concrete dangerous offense.

Seventh, to modify the article 191st of the criminal law. To reduce the crime of money laundering offence standard, increase the content of subjective intention "is clearly illegal income, increase the crime of terrorism and its benefit" as the subjective elements of the crime of money laundering new. Increased crime, the crime of money laundering crimes increase plot of aggravating circumstances.

Eighth, increased crime, increase the crime of spreading false dangerous substances and fabrication, deliberate dissemination of false terrorist information.

Criminal law amendment four

2002Years12Month28DayPromulgated by the

Criminal law amendment four, a total of nine, made ten changes: increase 4 charges; reduced crime constitutes the standard 5; number problem also modify a crime.

First, modify the article 145th of the criminal law. Reduce the offence standard, the production, sales do not meet the standards of health equipment crime by the actual damage offense is amended as concrete dangerous offense "to serious harm to human health". In reducing crime constitution standards at the same time, reduce the starting point of punishment, the "under five years" to "three years of the following". Modify the punishment files, modify the "harm" penalty "three to seven", "serious consequences" penalty "ten to no period".

Second, to modify the article 152nd of the criminal law. Increased crime, added the crime of smuggling of waste.

Third, changes to the article 155th of the criminal law. Reduce the offence standard, will be "smuggling in river, Lake" is also included in the "indirect smuggling" the way to set up a smuggling crime behavior.

Fifth, to modify the article three hundred and thirty-nine of the criminal law. To reduce the crime constitutes the standard, the crime of smuggling of waste behavior object expand from the "solid waste" to "solid waste, liquid and gaseous waste".

Sixth, to modify the article 344th of the criminal law. Reduce the offence standard, manner of the original objective behavior will be illegal logging, the destruction of the national key protected plants by the "Regulations" the crime violates silvan law to "in violation of state regulations"; increase in an objective manner, "illegal logging, destroy countries in other plants and products protection". Increased crime, increase the illegal acquisition, transportation, processing, sale of national key protected plants, national key protected plant products of sin.

Seventh, to modify the article 345th of the criminal law. Reduce the offence standard, removed the illegal purchase, transportation, trees felled crime "to profit for the purpose of" the subjective objective elements "in the forest", this objective elements.

Eighth, to modify the article 399th of the criminal law. Increased crime, increase the implementation of ruling, ruling the dereliction of duty crime; crime of breach of privilege, increase the execution order. To amend the provisions of law and also constitutes crime of bribery crime number, the original law stipulates whether wrongful behavior and bribery or bribe behavior has the situation, do not constitute a crime, and in accordance with the imagination of concurrence from a heavy punishment. Revised law, case only after prior acceptance of bribes in the imaginative joinder of from a heavy punishment, ruled out bribes pervert the law after a heavier punishment. Because the fourth section of the 399 article of the criminal law stated, "the judicial personnel accepting bribes, the difference between the original law acts mentioned in the preceding three paragraphs of", "take bribes and bend the law...... At the same time. The 385th article of this law the crime stipulated in ", so the bribes and perverted the law case regardless of has were not in the imaginative joinder of from a heavy punishment, but punishment; to pervert the law, after the bribery case, also cannot be applied to this paragraph, but only the combined punishment for several crimes.

Criminal law amendment five

2005Years2Month28DayPromulgated by the

Criminal law amendment five, a total of four, made three changes: increase 2 charges, reduce crime constitutes a standard 1.

First, modify the article one hundred and seventy-seven of the criminal law. Increased crime, increase the hindrance credit card management crime.

Second, to modify the article one hundred and ninety-six of the criminal law. Reduce the offence standard, increase the objective behavior of the crime of credit card fraud, increased "applies to the false identification of fraudulent credit card, credit card fraud" the crime of credit card fraud new objective behavior.

Third, to modify the article three hundred and sixty-nine of the criminal law. Increased crime, increase the fault sabotage weapons and equipment, military facilities, military communications sin.

Criminal law amendment six

2006Years6Month29DayThe promulgation and Implementation

Criminal law amendment seven a total of 21, made sixteen changes: 9 new crime, delete the 1 crimes; crime composition standards increased 1, reduce the standard 4 crimes increased crime; 1.

First, make amendments to article 134th of the criminal law. Reduce the offence standard, delete the serious liability accident crime "factories, mines, forestry, construction enterprises or other enterprises, institutions and workers" this subject limit. The crime of major accident liability "force others to illegal adventure homework" this behavior as an independent crime, the crime of forcing others illegal adventure homework.

Second, make changes to the article 135th of the criminal law. Reduce the offence standard, removed the major labor accident crime "factories, mines, forestry, construction enterprise or other enterprises and institutions," the subject limit. Delete "by the relevant departments or employees is proposed, the hidden dangers of accidents still fails to take measures" the objective constitution restriction.

Third, make changes to the article 135th of the criminal law. Increased crime, increase the safety accidents of large mass activities crime.

Fourth, make changes to the article 139th of the criminal law. Increased crime, increased by not reporting, false security accident crime.

Fifth, make changes to the article 161st of the criminal law. Increased the offence standard, made "in accordance with the law the obligation of information disclosure" restrictions on the subject of the crime of illegal disclosure of important information. Reduce the offence standard, expanded the scope of this crime, make "obligated to disclose the information enterprise" has become the subject of this crime. Increased crime, increase the illegal disclosure of important information is not crime, crime and illegal disclosure of important information consists of selective accusations breach disclosure, disclosure of important information is not crime.

Sixth, make changes to the article 162nd of the criminal law. Increased crime, increase the crime of false bankruptcy.

Seventh, make changes to the article 163rd of the criminal law. To reduce the crime constitute a standard, non subject of bribery by the "expansion of the company, the staff of the enterprise" to "the company, enterprise or other unit staff".

Eighth, make changes to the article 164th of the criminal law. Reduce the offence standard, the bribery of non national staff bribery extended from "company, the staff of the enterprise" to "the company, enterprise or other unit staff".

Ninth, make changes to the article 169th of the criminal law. Increased crime, increase the breach damage the interests of the listing Corporation.

Tenth, make changes to the article 175th of the criminal law. Increased crime, cheating loan, bills acceptance, increase financial ticket.

Eleventh, make changes to the article 182nd of the criminal law. Increased the offence standard, objective behavior the manipulation of the securities, futures markets. "By manipulating the futures trading prices" is amended as "futures market manipulation"; a behavior will operate securities, futures market "by manipulating the securities, futures trading prices" is extended to "the manipulation of securities, futures trading prices of securities, futures or trading volume; third kinds of behavior" to themselves as the transaction object, to buy from sell "is defined as" securities transactions between their actual control account without transferring ownership of the stock "

Twelfth, make changes to the article 185th of the criminal law. Increased crime, increase the breach of entrusted property.

Thirteenth, make changes to the article 186th of the criminal law. Delete delete crime, crime of illegally granting loans to connections. The illegal loans to the relationship between human behavior rules for the crime of illegal loans plot of aggravating circumstances.

Fourteenth, make changes to the article 187th of the criminal law. Reduce the offence standard, the deletion of the absorption of client funds not accounted for the crime of "to profit for the subjective purpose" elements; the deletion of the "funds for illegal lending, loans" objective behavior constraints.

Fifteenth, make changes to the article 188th of the criminal law. Objective elements will be illegal issuing financial coupons crime by "caused great loss" is amended as "serious"; "will cause significant loss" results aggravating circumstances is amended as: "if the circumstances are especially serious" plot of aggravating circumstances.

Sixteenth, make changes to the article 191st of the criminal law. Reduce the offence standard, will the money laundering crime subjective intentional content expanded from the "known to be drug-related crimes, underworld of organized crime, terrorism crime, smuggling crime income and its benefit," to include " that corruption and bribery crime, destruction of financial management order, crime of financial fraud income and its benefit".

Seventeenth, make changes to the article 262nd of the criminal law. Increased crime, increase the organizations of persons with disabilities, children begging crime.

Eighteenth, make changes to the article 303rd of the criminal law. The "open the objective behavior casino" separation of independent crime from the crime of gambling, constitute the crime of opening casinos, and the crime of opening casinos do not require "for the purpose of profit".

Nineteenth, make changes to the article 312nd of the criminal law. Reduce the offence standard, will conceal, conceal the proceeds of crime, the proceeds of crime subjective content from "knowing is the proceeds of crime booty" expanded to "express is the proceeds of crime and its benefit". Increased crime, adding "if the circumstances are serious, department for more than three years of less than seven years imprisonment, fined" this plot of aggravating circumstances.

Twentieth, make changes to the article 399th of the criminal law. Increased crime law bending arbitration.

Criminal law amendment seven

2006Years2Month28DayThe promulgation and Implementation

Criminal law amendment seven a total of 15, made nineteen changes: increase the 8 crimes; crime composition standards increased 3, reduce crime constitutes the standard 6; increase the 1, reducing the 1.

First, make amendments to Article 151st of the criminal law. To reduce the crime constitution, criminal object expanded to remove all countries outside the smuggling of rare plants and their products and the provisions of article 152nd prohibiting the import and export of goods, articles.

Second, make changes to the article 180th of the criminal law. Reduce the offence standard, increase of insider trading, disclosing inside information crime a new objective behavior "express, implied others engaged in the trading activities".

Third, make changes to the article 201st of the criminal law. Reduce the offence standard, delete the objective elements of crime of evading taxes "after being notified by the tax authorities to declare", delete the specific behavior of deception, conceal the means of restrictions, as long as the "constitution of fraud, concealment means" that is consistent with the crime of tax evasion. Increased amount of tax evasion crime constitutes the standard, the starting point of punishment, the specific amount, from the original floating fine original to "avoid a large amount of pay taxes and the tax payable shall be accounted for more than ten percent, is less than three years imprisonment or criminal detention, and shall also be fined; a huge amount of tax payable and accounted for more than thirty percent, three years or more in less than seven years imprisonment, fined." increased the offence standard, increased from the social harmfulness subject: "mentioned in the first paragraph behavior legally issued recovered, after being notified by the tax authorities, tax payable taxes, pay a surcharge, has been subject to administrative penalties, shall not be subject to criminal liability; however, the five year internal escape payment has been subjected to criminal punishment or by the tax authorities or administrative punishment given two times."

Fourth, make changes to the article 242nd of the criminal law. Increased crime, add regulations of pyramid selling can also constitute a crime.

Fifth, make changes to the article 225th of the criminal law. Increased crime constitutes the crime of illegal business operation standard, the third kinds of objective behavior "and other illegal acts disrupting the market order," specific "without state approval of the relevant competent departments of illegal operation of securities, futures, insurance, or illegally engaging in fund payment and settlement business".

Sixth, make changes to the article 239th of the criminal law. To reduce the crime of kidnapping, to increase the plot to reduce the penalty situation, "if the circumstances are relatively minor, five years less than ten years imprisonment, fined".

Seventh, make changes to the article 253rd of the criminal law. Increased crime, illegal sale, increase, providing access to personal information can also constitute a crime.

Eighth, make changes to the article 262nd of the criminal law. Increased crime, shall increase minors to commit theft, fraud, plunder, blackmail and impose exactions on other acts violating the administration of public security activities can also be an independent crime.

Ninth, make changes to the article 285th of the criminal law. Reduce the offence standard, the illegal invasion of computer information system behavior object to expand "national affairs, national defense construction, advanced science and technology in the fields of computer information system" "outside of the computer information system", as long as the "serious" can also constitute a crime. And the four kinds of objective behavior, "using other techniques, access to the computer information system in storage, processing", "the transmission of data, or of the computer information system implementation illegal control", "to provide specialized for invasion, illegal control of computer information systems program, tool", "knowing that others invading the illegal control of computer information systems, criminal acts and to provide program tool", "serious" case.

Tenth, make changes to the article 312nd of the criminal law. Reduce the offence subject standard, will conceal, conceal the proceeds of crime, the proceeds of crime expanding, units can also constitute the crime of.

Eleventh, make changes to the article 337th of the criminal law. Reduce the offence standard, the deletion of the "violation of entry and exit animal and plant quarantine law provisions" one of objective limitation; increased "causes a serious animal or plant epidemic risk", so that the crime by the actual damage offense into concrete dangerous crime.

Twelfth, make changes to the article 375TH of the criminal law. Increased crime, theft, forgery, increased provisions provide illegal, use of military mark behavior can also constitute a crime.

Thirteenth, make changes to the article 388th of the criminal law. Increased crime, increase the "state personnel's close relatives or other state functionary and the close relations between people, through the state working staff's behavior, or by the state authority and position of the convenient conditions formed by other countries, working staff's act, which is to seek improper interest the trustee, the trustee shall ask for or accepting money or property as trustees" independent guilty..

Fourteenth, make changes to the article 388th of the criminal law. Increased crime, added the crime of huge unidentified property results aggravating circumstances, "the difference is especially large, more than five years to ten years in prison."

 

This paper, through the criminal law amendment seven to one by one by one analysis, draws the conclusion:

(1) the seven amendment added 32 charges, reduce crime constitutes a standard 21, increased the total 7; deletion of 1 crimes (Amendment seven), increased crime constitutes a standard 6 (Amendment seven accounted for 3), reducing the 1 (Amendment seven).

(2) of the criminal law amendment to the criminal law amendment mainly "increased crime", "reduce the standard".

(3) as part of the implementation of the criminal law amendment of the criminal law, common sense, the more offenses were evaluated as crime, reflected in the criminal law amendment to six; special sense, make some illegal behavior will no longer be evaluated as crime, reflected in the criminal law amendment seven.

(4) lawmakers have found no effect of amendment of criminal law is to expand the coverage of the criminal law, the modesty of criminal law should take into account. This idea comes from the criminal law second function (criminal law the first function is to punish crimes, the second function is to protect the freedom, protection do not violate the criminal law is without any person deprived of liberty rights).

For the judiciary, change the amendments to the criminal law brings about the correctness of the applicable law, the quality of the provision of legal services. For national, criminal law amendment changes related to freedom, and human rights. Don't forget, the judiciary is also the national.

 

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