Criminal law confusing key knowledge induction 15

One hundred and fifty-four, focus on the law:
Article 387th.
Related articles: "criminal law" article 385th.
Mean decomposition:
1,The provisions of the unit bribery crime. And 385th of the bribery crime in the objective aspects consistent. The main difference is the most important, the subject of this crime is only unit, for the state organs, enterprises, institutions, State-Owned Company, people's organizations and other state-owned nature of the unit, unit crime is typical, and the subject of bribery crime is only natural person or national staff.
2,The unit bribery crime objective aspect of behavior way has three kinds: one is the demand property from others; two is to accept bribes; three is in economic activities, their secret kickbacks, charges in various names. Notable is, whether the unit or units of bribes, accepting bribes, for the benefit of others are essential elements of constitution of crime of bribery, this point obviously different; moreover in economic transactions kickbacks, fees, must be secretly in outside, that is not in accordance with the law established financial the account to account, if the received kickbacks, fees, but truthfully recorded, do not constitute a crime.
One hundred and fifty-five, focus on the law:
Article 389th.
Related articles: "criminal law" article 164th, article 390th, article 391st.
Mean decomposition:
1,The provisions of this article is the crime of bribery. A key identifying the crime of bribery is behavior person to give the functionaries of the state property is to seek illegitimate interests, including illegal interests, including violation of policy, regulations, system and benefits (such as does not have the entrance conditions up to learn). If the behavior of people in order to get the legitimate interests and to the working personnel of the state property is given, it does not constitute a crime. But note that, even if the bribery in order to get the legitimate interests and property does not constitute a crime, but the national staff accept financial bribery can constitute the crime of bribery (because there is no property interests for others in bribery crime limit), visible, in the bribery crime, bribery crime and bribery crime relationship not one one corresponding.
2,To seek illegitimate interests in a bribery meaning should be analyzed concretely, in active bribery occasions (i.e. the first paragraph of this article), to seek illegitimate interests for the subjective elements, namely, if people have this purpose and offering property, would constitute bribery; bribery in the passive situation (i.e., extortion and forced bribery), seek improper interests is the objective elements, namely, only the briber given property and obtain improper benefits, it constitutes the crime of bribery. If as a result of extortion and give the property, but did not obtain improper benefits, does not constitute the crime of bribery. This is the third paragraph of this article and requirements. This shows again that bribery and bribery is not one one to one correspondence.
3,The subject of bribery is the only object of national staff, it is to the company, the enterprise personnel bribery of the difference between the crime and the 164th place. If people do not bribe bribery national staff, but to state organs, enterprises, institutions, State-Owned Company, and people's organizations to pay bribes, constitutes a "criminal law" in article 391st to the unit crime. Visible, bribery, the key to the company, the enterprise personnel bribery, crime of offering bribes to a unit of three kinds of bribery of the difference is the object of bribery. But they subjectively require the behavior person to seek illegitimate interests is essential.
4,According to the second paragraph of this article, the economic activities, in violation of the provisions, give the working personnel of the state property, large amount of, or in violation of state regulations, to state functionaries in kickbacks, fees, also constitute bribery.
5,Punishment of the crime of bribery, there is an important legal sentencing circumstances: that is provided for in the second paragraph 390th before prosecution, briber confesses his crime may be given a mitigated punishment or be exempted from punishment. This with the 164th to the company, the enterprise personnel bribery punishment consistent.
One hundred and fifty-six, focus on the law:
Article 393rd.
Related articles: "criminal law" article 389th, article 390th, article 391st.
Mean decomposition:
1,The provisions of this article is the unit crime, the crime is the unit crime, subject can only be a unit, its nature is not restricted, can state-owned nature of the unit, but also for the non state owned property unit. Subject is the key to this crime and the crime of bribery between 389th.
2,Object unit bribery behavior is the only object of national staff. If the state-owned nature of the unit bribery, it does not constitute a crime, but can constitute 391st of the crime of offering bribes to a unit (second, 391st). The difference between the unit crime and the crime of offering bribes to a unit is: one is the object of bribery of national staff or state organs, state-owned State-Owned Company, the nature of the unit subject of crime; two is the only unit, while the body of bribery units in addition to the unit, also can be other natural person.
3,Note that the unit crime into bribery case. Although it is in the name of unit to the national staff bribery, but the illegal income if because of bribery and the (illegitimate interests) and not to the units and individuals of all cases, according to the provisions of the second half, should be based on the bribery crime, and no longer will the unit crime.
4,Note the differences among several crimes of bribery of the involved. The crime of bribery (389th), to the company, the enterprise personnel bribery) 164th), the unit crime (393rd), to the unit crime (391st), these kinds of criminal behavior (objective) completely consistent basically, had to seek illegitimate interests and bribery. The difference between them mainly from two aspects: one is the subject of crime (natural person or unit); two is the object of bribery (national staff, or the company, the enterprise personnel, need is the state-owned units).
One hundred and fifty-seven, focus on the law:
Article 395th.
Method: the Supreme People's Procuratorate on August 6, 1999 "directly accepted by the people's procuratorates investigation on file standards (for Trial Implementation)".
Mean decomposition:
1,The provisions of the first paragraph of the crime of huge unidentified property. Has two meanings to pay attention to the key lies in the objective aspect of the crime: one is the property or expenditure behavior have significantly more than the legitimate income and the tremendous amount; two is the legal sources of the huge difference of property people can't. Not that either act would not say (refuses to explain), can also be deliberately fabricates the legitimate source but was found negative.
2,The crime of huge unidentified property legislation intention with the illegal possession crime is basically the same, that I could not explain the legitimate sources, and judicial organs cannot identify the illegal income is obtained through illegal means under the condition of volume, in order not to indulge in criminal, was identified as the. If we can identify the source of the huge property to the behavior of corruption, bribery and other illegal and criminal activities, the crime of corruption, bribery crime, this crime and no longer set. If you identify the part of which originates from the behavior of corruption, bribery and other illegal and criminal activities, but there are still some cannot be ascertained and achieve "huge amount", can be considered also constitute the crime of huge unidentified property and corruption, bribery crime, a combined punishment for several crimes.
3,The second paragraph of this article is to conceal and external deposit of. The key to determining this crime is behavior person has a relatively large amount of deposit in foreign and not according to the provisions of the declaration, the source of the deposit is legal in question. So, if you identify the behavior constituted a crime of corruption or bribery, and will be money secretly moved into the outside, should be combined punishment for several crimes.
4,According to the "Regulations on the people's Procuratorate directly accept the case on file for investigation file standard (Trial)" huge amount of property of unknown origin, a huge amount of standard is 300000 yuan. Crime of concealing deposits abroad to RMB 300000 for filing standards.
5,The crime of huge unidentified property two the burden of proof should be paid attention to: one is a huge amount of property by the prosecution of criminal suspects and defendants, and legitimate income is inconsistent; two is the legal source of criminal suspects, defendants themselves proof of a huge amount of property. Please pay attention to distinguish.
One hundred and fifty-eight, focus on the law:
Article 396th.
Related articles: "criminal law" article 382nd.
Mean decomposition:
1,The provisions of the third paragraph is a crime of dividing the state-owned assets. This is actually a pure unit crime, which can only be formed by state organs, enterprises, institutions, State-Owned Company, people's organizations and other state-owned nature of the unit, but to take the punishment is a single penalty instead of the double penalty system, only punishment which caused units directly responsible personnel in charge and other directly responsible personnel. This point, so is the second paragraph of this article or confiscated property crime, but the main divide confiscated property is the judicial organs, administrative law enforcement agencies, is the specific state organs and units of all non state-owned nature.
2,The key point that the crime of dividing the state-owned assets and dividing the confiscated property crime lies in: one is the objective performance as "collective crime", which reflects the will of the unit, embezzlement of state-owned property range is larger, all personnel of the unit or the vast majority of staff; two is the specific object, the former state-owned assets rather than all public property, which is specific confiscated property (to be a part of the state owned property).
3,Limit note private - public owned assets crime, dividing the confiscated property and the crime of corruption. They are in the scope of subject, objective behavior and the object of crime, are different. If the above units although the name of the name of the group, but the state-owned assets or confiscated property to some individual or unit, rather than the vast majority of members, with the crime of corruption.
One hundred and fifty-nine, focus on the law:
Article 397th.
Related articles: "criminal law" the 400th -- 419; May 4, 2000 "the Supreme People's Procuratorate on director town of finance whether to re-examine the staff of state organs" application.
Mean decomposition:
1,The provisions of this article is the breach of privilege, be forgetful of one's duties crime crime. In general, breach of privilege is intentional criminal acts, to be forgetful of one's duties is the behavior of crime. The objective form of breach of privilege, manifested as mode, be forgetful of one's duties mainly for not as a way to. The two are required to cause public property, the interests of the state and the people suffered a major loss to the crime.
2,The subject of this crime is the state organ staff. The scope of state functionaries and the functionaries of the state are different, the former refers only to engage in public service in state organ personnel, the latter includes not only engaged in public affairs in the state organs of the staff, but also included in the State-Owned Company, enterprises, institutions, people's organizations and other personnel engaged in public service according to law. The staff of state organs only visible part of national staff. According to the "Regulations on director town of finance whether to re-examine the" staff for state organs, the state organs in the cadre management personnel according to the administrative law enforcement institutions of the town of finance, in the performance of government administration activities in breach of privilege, or neglect their duties to constitute a crime, should be based on the staff of state organs theory.
3,If the state organ personnel play favouritism and commit irregularities committed the crime, the crime of breach of privilege to play the duty crime, according to the second paragraph of this article, shall be as a breach of privilege, be forgetful of one's duties crime with aggravated circumstances of the crime of treatment.
4,Pay attention to the relation between the crime and other crime of breach of privilege breach of privilege. In this article the crime of breach of privilege is the "general provisions of the criminal law" crime of breach of privilege sub ninth chapters, this chapter in addition to the provisions of the crime of breach of privilege than general, will also be some special provisions for the crime of breach of privilege behavior independently, such as 403rd, 407th and so on, with the purpose of this article, the specific rules are special law in accordance with the law, special law is superior to the general principle of breach of privilege, when the behavior person which violates this article and other law this chapter of the crime, should act on the behavior of the other law is the special law stipulated the crime shall be punished. The same applies to the relationship between the crime and other crimes be forgetful of one's duties be forgetful of one's duties.
5,Note that the boundaries between some caused by the negligence of a major liability accident crime to distinguish negligence stipulated crime and "criminal law" the second chapter in the specific provisions. The main difference between them lies in: the subject of crime, the violation of the object is different, but the key point lies in the space and time behavior is different, be forgetful of one's duties crime occurred in state organs management activities on social issues, and a major liability accident crime, production, operating in a variety of process.
One hundred and sixty, focus on the law:
Article 398th.
Related articles: "criminal law" article 110th, article 111st, article 180th, article 219th, article 282nd, article 432nd.
Mean decomposition:
1,The provisions of this article are deliberately leaking state secrets and the fault of the crime of divulging State secrets. The subject of this crime principle for the personnel of state organs, but according to the provisions of paragraph second, non state staff also can constitute a crime, this is "criminal law" the ninth chapter only specific provisions of malfeasance in a non state staff can constitute the crime.
2,Subjective behavior of leaking state secrets either intentional or negligent, can constitute a crime, but the charges differ. But it is worth noting, leaking state secrets intentionally and negligently divulges State secrets applicable legal punishment is the same, this is extremely rare in the "criminal law" (432nd on crime and leaked military secrets either intentional or negligent crime and punishment are same, namely only 432nd legislative mode and the same).
3,Limit note this crime and other crimes involving state secrets. Is this crime and the 110th espionage, 111st stealing, spying, buying, illegally providing state secrets, 282nd of the crime of illegally obtaining state secrets of the boundaries of the problem, should from behavior, object leak or provided to distinguish. The 110th article, 111st of two people providing state secrets in the crime is the object of spy organization or outside agencies, organizations and personnel, and the crime of divulging state secrets object in principle only, but the actor holds that state secrets, the act itself is legal, and 282nd illegal gain country secrets on "illegal" behavior.
4,Note that this crime and other crime secret leaked. This crime and 180th disclosing inside information crime, 219th of the crime of infringement of business secret, the behavior may be the same, but the content is the key to the secret nature, the leaked different: the still limited to state secrets, and the 180th with the securities, futures, involve issue has great influence on the transaction or other securities, futures prices and not public information; 219th infringing commercial secrets, still unknown to the public but can bring economic benefits for the right people, practical and technical information and business information confidential measures adopted by the right owner's interest, after the two apparently does not belong to the national secret. In addition, the difference and because the 432nd intentionally or negligently divulges military secrets is also very obvious; one is the object of crime is the subject of crime is different in different; two.
One hundred and sixty-one, focus on the law:
Article 399th.
Related articles: "criminal law" article 385th.
Mean decomposition:
1,The first paragraph of this article is the crime. The key lies in the objective aspect of the crime that is two kinds of causes, three kinds of behavior. Two kinds of causes that favoritism and partial. The three kind of behavior is: one is that the innocent be prosecuted; two is the guilty party to shield against prosecution; three is a violation of the criminal trial of fact and law and pervert the law.
2,The second paragraph of this article is the crime of misuse law in adjudication, refers to the civil, administrative proceedings, deliberately contrary to facts and the law perverting the law.
3,Note the limits of this crime and crime of misuse law in adjudication; one is main range is different, the former mainly for the public, prosecutors, law institutions specifically responsible for handling criminal cases of persons, which is the court specifically engaged in civil, administrative trial work of the staff and managers; two occurred in different time and space, the former investigation, review in criminal cases, prosecution, trial and other criminal activities, which only occurs in the civil, administrative proceedings.
4,Pay attention to the behavior of people, perverting the law at the same time, as the favoritism and ask for or accept others' property and processing 385th bribery. The third paragraph of this article made the explicit stipulation, namely behavior because of accepting bribes and perverted the law, constitutes a crime or the crime of misuse law in adjudication, constitute a crime, should be a heavier convicted and punished them, but not for punishment. Visible, this is actually followed the principle of implicated offense.
One hundred and sixty-two, focus on the law:
Article 449th.
Related articles: "criminal law" the seventy-second -- 77, 450th, 451.
Mean decomposition:
1,The provisions of this article is the wartime probation system. A general rule in this one is the "criminal law" the tenth chapter "the specific provisions of the military crime of breach of duty". The wartime probation is a special kind of probation system, on the one hand to follow the "criminal law" provisions of seventy-second -- 77 on probation system basic principle (principle), at the same time, also has its own particularity.
2,According to the provisions of this article, apply the wartime probation should include the following conditions: one is the applicable time must be in wartime, the meaning of article 451st clearly defined; the two is the object of the application can only be sentenced to 3 years in prison (in the spirit of the legislation should contain sentenced to criminal detention punishment) soldiers. The soldiers "criminal law" article 450th scope is defined, the three is the fundamental basis for the wartime probation is declared in the war under the conditions of no real danger of probation.
Don't confuse:
The general prohibition provisions in this article the wartime probation and "criminal law" the general provisions although all belong to the category of the complaints, but there is a clear distinction between the two, this should not be confused with:
One is the different applicable objects, in addition to outside general probation recidivism sentenced to criminal detention or less than 3 years in prison for the criminals (including peacetime and wartime probation, criminal armyman) only applies to except the recidivism was sentenced to 3 years in prison (including detention) crime soldiers.
Two is the suitable time of different. The application of ordinary probation, no time limit, the wartime probation applicable only in wartime.
Three is a key condition to apply different. General probation, the key condition of probation application is not do harm to the society, the wartime probation is no real danger in the wartime probation.
Four different methods are applicable. The general is the application of probation, probation and must be in accordance with the law to determine the test period, the contents of the test period for the criminals is the "criminal law" seventy-seventh article of the cases. The wartime probation is not clear, the probation period, the probation test content for crime soldiers have rendered meritorious service.
Five different legal consequences. General upon expiration of the probation period, if there is no violation of "criminal law" seventy-seventh article of the cases, not the implementation of the original penalty, the crime is established (i.e., still had a criminal record); and the wartime probation, in criminal armyman a meritorious circumstances, the original sentence may be revoked, shall not be regarded as a criminal (i.e. don't think crime).
One hundred and sixty-three, focus on the law:
Article 450th.
Mean decomposition:
1,This article is about how to define the scope of "soldiers", a general principles and specific provisions of chapter tenth "Military Crime of breach of duty". Soldiers or military personnel, according to the article, which can be divided into two categories: the first category is Chinese servicemen, the people's Liberation Army and people's Armed Police Forces of China serving officers, civilian cadres, soldiers, police officers and cadets with military status; second is the military missions for personnel and other personnel (mainly in the staff members and workers).
2, about the article, need to pay attention to is: the military scope includes not only the people's Liberation Army series, but also including armed police series; with school students such as learning in military colleges and universities has the students also belong here in military area; reserve personnel and other personnel in performing military tasks as "soldiers", can also pose a military post crime.
One hundred and sixty-four, focus on the law:
Article 451st.
Mean decomposition:
1, the provisions of this article "the meaning and scope of the war", a general provision is divided tenth chapters "Military Crime of breach of duty". In this chapter, "war" may be some elements of crime of essential contents, such as crime of self injury in wartime, may also be the legal circumstances of some crimes, such as to impede the implementation of military tasks stipulated in the "war crime, shall be given a heavier punishment". For the meaning of the first paragraph of this article, the basic properties and characteristics. Need to pay attention to is the second paragraph: troops to execute martial law tasks or cope with emergencies of violence, but also as a "war" is a kind of special provisions.