Criminal jurisprudence

Summary

From the recent national bar exam questions as well as the first national judicial examination score distribution, average scores of criminal law at around 55-65, the objectivity of choice in about 40 minutes, the case analysis topic in 20 minutes. Single from the perspective of value distribution , criminal law has the same contract law together, in the first place in all laws, regulations included in the scope of judicial examination. Therefore, is crucial to the criminal law review.
The criminal law questions in proposition characteristics and rules, and contract law is also quite similar. Can say, the general provisions of criminal law are part of each chapter section is the focus of the judicial examination. Compared with the general provisions of sub section, there are only 101 articles (sub 350 articles), but for the criminal law item total score of 45% or so. If we take into account the answer criminal law section of the test is a moment also cannot do without the provisions of general principles of criminal law part of this fact, the status and role of the general provisions in the criminal law in the examinations is higher.
The key content of general provisions of criminal law:
1 the scope of the criminal law;
2 crime and criminal responsibility including: age, criminal responsibility, criminal responsibility, the justifiable defense;
3 forms of crimes: stop, attempted, preparation;
4 common crime;
5 kinds of punishment;
Application: 6 penalty commutation, parole, probation, aging, the combined punishment for several crimes, recidivism, surrender and meritorious service, sentencing etc..
This part of the test examination content more details, but figures each clause (period) is more examination hot, should be accurate memory.
And every provision of criminal law in the general part is very important for different number of specific provisions, though large, complex content, but the heavy point method is prominent, but relatively minor or less often considered to occupy most of the law. This book will focus on the law of all one one refined, and most often test law made a detailed analysis, should be accurate, complete grasp.
According to many previous test scores are arranged, the key content of sub section is in turn:
1 offences against socialist economic order;
2 the hindrance social management order crime;
3 violation of civil rights, democratic rights of crime;
The 4 crimes of property violation;
The 5 crimes of embezzlement and bribery;
6 the crime of endangering public safety.
Again, the law, especially the multiple-choice knowledge involved in high precision request, the application of correlation method the ability to solve specific problems and higher requirements. Candidates must not be crude and careless in the review, the key method book lists a must and fine, refine on command.
Finally, the revision of this part, focus on the amendment to the criminal law of the first national judicial examination examination of criminal law since the trend and new plus "(four)," the legislative and judicial interpretation. This part is reflected in the judicial interpretation of up to 50 (of course or two high judicial interpretation for selection result), also a characteristic is the book.

The first part of the general principles of criminal law

The first chapter, the task of criminal law, the basic principles and scope of application

[method] key
Article sixth where the people's Republic of China is a crime, except when otherwise stipulated by law, the law is applicable to.
Anyone who commits a crime in the people's Republic of China aboard a ship or aircraft, this law is also applicable to.
Criminal act or consequence takes place within the people's Republic of China, that is brought domain crime in the people's Republic of china.

[method]The act of eleventh, 90.

[] mean decomposition
The effectiveness of the 1 on the application of criminal law, the provisions of the criminal law has the territorial principle, nationality principle, protective principle and the universal jurisdiction principle , were established by the "criminal law" sixth, 7, 8 and ninth. The review should pay attention to the conditions of applying the principle of.
2 this article content is "the principle", which is the basis of validity of criminal law in china. Three jurisdiction provisions of this act of seventh, 8, 9 of the is to supplement it.
3 "law" meaning, pay attention to the article eleventh of the "foreigners" enjoy diplomatic privileges and immunities in crime in China and ninetieth "national autonomous areas" development of the alternative or supplementary provisions of this section is the exception to the principle of.
4 of the second paragraph of this article is the extension of our natural territorial, ship and aircraft including civil, including military. But this subsection does not provide "the train" is also in the range, the concrete solution should refer to the Supreme People's court "interpretation" of criminal procedure specified in article 10 .
The implementation of the provisions of the 5 act of the third paragraph of this article, "crime" includes not only the crime, including crime in preparation.



[method] key
The seventh PRC citizens to commit the crimes specified in this law field outside the people's Republic of China, shall apply the provisions of this law, but according to this Law prescribes a maximum punishment of three years in prison, may not be dealt with.
PRC state personnel and military personnel who commit the crimes specified in this law field outside the people's Republic of China, the applicability of this method.

[] mean decomposition
The provisions of this article is the validity of criminal law applicable "principle of nationality". For the knowledge points, should pay attention to:
1 everyone who belongs to the Chinese citizens, regardless of their overseas where, based on the principle of national sovereignty, the crime should be applied in our criminal law.
2 key techniques of this article is to define the "general" and "all" problem, namely ordinary citizens abroad crime, general or principles are applicable to China's criminal law shall be investigated for criminal responsibility, but for the national staff and soldiers is applicable to China's criminal law shall be prosecuted for criminal liability, the former the exceptional rules, the exception condition is when the action is the maximum statutory penalty misdemeanor (less than 3 years. Pay attention to both compare memory.



[method] key
Eighth of foreigners in the territory of the people's Republic of the people's Republic of China national or civic crimes, and punishable according to the provisions of this Law for more than three years in prison, this law may be applicable, but according to the criminal law is not punishable.

[] mean decomposition
The purpose of this article is the validity of criminal law applicable "protection" principle, the application of this principle must also meet the following conditions:
1 actors must be foreigners, including stateless people; otherwise the application principle of the person the seventh article of this law. "".
The 2 act must be in our country domain, otherwise applicable principle of territoriality of the sixth article of this law. "".
Object 3 behavior for must be "state of the people's Republic of China or the citizens", which is a violation of our country or the legitimate interests of citizens.
The 4 act more serious nature, or standard severity is according to the provisions of this law, the minimum statutory penalty of the crime is more than 3 years in prison, which belongs to the "felony".
The 5 act in line with the "double crime", namely the behavior of law and China's "criminal law" the Act provides for the crime. Otherwise , do not apply this principle.



[method] key
Twelfth after the founding of the PRC and 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, shall be investigated for criminal responsibility according to the law, but if this method was not deemed a crime or imposes a lighter punishment, this Law shall apply.
Before the implementation of this law, in accordance with the law has made the effective judgment, continue to be effective.

[method]The eighty-seventh article of this law; the Supreme People's Court on September 25, 1997 "criminal law potency stipulated time between a number of issues of interpretation".

[] mean decomposition
1 the provisions of criminal law is the retroactivity "-- from the old and lighter" principle, the first thing to consider is the applicable laws behavior when the old method.
For 2 of the retroactivity of criminal law is the only object of detainees, are not applicable to convict (specified in article second).
The provisions of the 3 old and the new law is not at the same time, the basic conditions for the new law is penal lighter or not deemed a crime. Sentences the weight should be when legal punishment weight basis.


The second chapter of crime

[method] key
Fourteenth knowing that their actions will cause socially dangerous consequences, and wishes or allows this to happen, so constitute a crime, is an intentional crime.
Intentional crime, criminal responsibility shall be borne.

[method]Fifteenth, 22 ~ 24.

[] mean decomposition
1 the provisions of this article is the content of the criminal intention. The content of criminal intention or structure should be from two aspects: one is the understanding of factors -- the behavior person to harm their behavior and its results have no awareness and understanding of how the degree, two factors will -- the behavior person to harm the social result of attitude.
2 criminal intention is divided into direct and indirect intentional. Among them, direct intent is twenty-second ～ crime pre twenty-fourth stipulation preparation, attempted crime, the discontinuance of crime precondition, other forms (including indirect intention) does not have the problem of these unfinished crime pattern. The problem of indirect intention lies mainly in its difference from the overconfident negligence.
3 clear direct and indirect intentional difference is the key of this article. The difference between the two: one is in understanding the factors aspects of behavior, resulted in the damage although all know, but know the degree is different: direct intent is behavior person knows his own act will inevitably harm result, but also can be knowing their behavior may have harmful consequences to society; but the indirect intention only is the act of knowing that their actions may harm result. Two in the will factor, namely two of harmful consequences of psychological attitude obviously different: direct intent is the hope is actively pursuing the occurrence of harmful results, while the indirect intentional occurred against the results of laissez faire is indifferent, allow someone to continue the mental attitude.
4 specific results or not, is different for these two kinds of intentional harm behavior under the control of conviction: for direct intent and words, occurs or not is a sign of his accomplishment specific results statutory, while the indirect intention, is what kind of crime or sign constitute an offence or not. Is the same as shooting the behavior of others: if it is the direct intentional, then whether or not causing death or injury, has constituted the crime of intentional homicide (just before death cases belong to attempted murder.); if it is out of laissez faire indirect intention, it should be a concrete analysis of qualitative problem: if hit others and cause of death, the establishment of the crime of intentional homicide; if hit but did not cause death but only wounded, may set up the crime of intentional injury, if not hit does not constitute a crime.



[method] key
Article fifteenth should have foreseen that his behavior may cause socially dangerous consequences, because negligence and do not foresee, or have foreseen readily believe can be avoided, so that the occurrence of this result, is a negligent crime.
A negligent crime law, criminal responsibility shall be borne.

[method]Fourteenth, 16.

[] mean decomposition
1 negligence crime must have two conditions: one is the behavior of harm results must be serious; two is law clearly stipulates the behavior should constitute a crime. There are two basic types of criminal negligence, one is the fault of over confidence, one is the fault of negligence. The key difference between the two lies in the understanding of factors: the results of hazards may occur: overconfident negligence has been predicted (understanding), and the fault of negligence did not foresee (know).
2 key mistakes too confident in its and indirect intentional difference: in the understanding of factors, although the two are foreseen the possibility to the behavior harmful consequences, but for this possibility will be translated into reality, that is actually happening subjective estimation harm results are different: the overconfident negligence on subjective thought because of its own capacity, technology, experience or some external conditions, the implementation of the act, the possibility cannot be the result of damage into reality, that is to be transformed into objective reality of error recognition, and indirect intention not to have this kind of wrong understanding. In the factors will, two attitude to harm result is different: the indirect intentional occurs on the results is not actively pursuing, but is not opposed, does not exclude the results occurred, but to allow someone to continue, laissez faire, and overconfident negligence not only not the pursuit of occurrence of results, and hope to avoid the occurrence of the opposition, namely, repel harmful consequences, which is the implementation of the harm behavior, must be by virtue of a self that can avoid the factors and conditions of the result of damage of certain (like his own ability, technology, experience, the natural force of favorable factors or other preventive measures etc.).
3 master key negligence negligence is a clear distinction between the sixteenth article of the accident. Although the two are is behavior person to harm results not foreseen, and therefore the occurrence of this result. But the two is different in principle: according to the specific situation of the actual ability to recognize human behavior and behavior when the accident occurred, is the behavior of harm results cannot be predicted, nor should foresee (no attention ability and duty of care), and careless negligence in the behavior person to the possibility of the result of damage, should foresee foresee (has attention ability and duty of care), is only due to the negligence of psychological and leads to the actual forecast failure.



[method] key
Article seventeenth the full sixteen years of age who commits a crime, he shall bear criminal responsibility.
Over fourteen years of age under sixteen years of age, the crime of intentional homicide, intentional injury causing serious injury or death, rape, robbery, drug trafficking, arson, explosion, crime of throwing dangerous substance, he shall bear criminal responsibility.
The full fourteen years of age under the age of eighteen crimes, shall be given a lighter or mitigated punishment.
Under sixteen years of age are not subject to criminal punishment, his parents or guardian shall be ordered to discipline; when necessary, can also be to taken in by the government.

[method]The Supreme People's court in February 13, 2000 "on issues concerning the trial of rape cases interpretation"; the Supreme People's court and the Supreme People's Procuratorate March 15, 2002 "on the implementation of the criminal law of the supplementary provisions to determine charges".

[] mean decomposition
The provisions of this section and connotation should cause our enough attention, calendar year examination more or less involved in the aspects of knowledge, pay attention to the problem mainly includes:
1 full 14 years of age under 16 years of age, should bear criminal responsibility: 8 kinds of crime in 10 cases (or 8 kinds of serious crime), the crime of intentional injury and rape are included in the two cases, the former includes intentionally causing serious injury and intentional injury causing death two cases, not including light damage. The latter includes the rape of women and having sexual intercourse with a minor in two cases. (note, according to the Supreme People's court and the Supreme People's Procuratorate March 15, 2002's "on the implementation of the criminal law of the supplementary provisions to determine charges", the behavior of carnal knowledge of a child shall be determined on charges of rape, and non crime of carnal knowledge of a child, that the cancellation of the crime of carnal knowledge of a child of this crime, and unified identified as rape.)
2 note of robbery crime includes not only the "criminal law" the provisions of article 263rd of the typical robbery, also include other types of "quasi robbery", such as the provisions of article 269th, article 267th paragraph second of the crime of robbery.
3 pay attention to drug crimes, has over 14 years of age under the age of 16 only to bear criminal responsibility behavior of drug trafficking, the basic properties are the same, the harm degree equal to smuggling, manufacturing, transport behavior of drug ("criminal law" article 347th) does not bear criminal responsibility. With this feature is extremely similar to the "some provisions of the criminal law" article 114th the with dangerous means to endanger public security crime, only to fire, explosion, poisoning bear criminal responsibility, but against water or endangering public security by other dangerous means behavior would not bear criminal responsibility.
The calculation principle of 4 years of age, should be in chronological age as the standard, from second days before the birthday for the full 14 years of age or 16 years of age.
The 5 mentioned in this article refers to the implementation of the criminal behavior of age (rather than criminal results appear), crime person's chronological age.
6 all negligence crime regardless of the harm degree, has over 14 years of age under the age of 16 are not bear criminal responsibility.
7 for the full 14 years of age under the age of 18 crimes, two principles should be followed: one is the application of punishment shall be given a lighter or mitigated punishment; two is not to apply the death penalty (including death).
8 for under 16 years of age are not subject to criminal punishment, how to deal with, first consider their parents or guardian shall be ordered strict discipline, secondly, when necessary, can also be taken in by the government.



[method] key
Twentieth in order to enable countries, the public interest, the person himself or herself or others, property and other rights from being infringed, and to the suppression of unlawful infringement behavior, causes harm to the unlawful infringer, is justifiable defence, and he shall not bear criminal responsibility.
Justifiable defence obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment.
The ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, it is not undue defence, and he shall not bear criminal responsibility.

[] mean decomposition
1 pay attention to the basic condition of justifiable defense defense intention (such as the subjective conditions), defense, defense cause object (target), defense time (time), the limit of Defense (limitation).
2 excessive defense and defense, the relationship between the defense behavior. The justifiable defense is a defensive behavior, but the defensive behavior is not necessarily the justifiable defense, the difference two is whether meet the limit of defense, defensive behavior of the limit of defense than is excessive defense, otherwise it is justifiable defence.
3 of the third paragraph of this article on "the right of special defense" provisions, pay attention to its essence as justifiable defense did not require the defense limit of, applicable condition is:
(1) the causes of the condition must be violent crime of endangering the human body safety;
(2) act of defense to protect the interests of only the personal safety and does not include other legal rights such as property rights;
(3) the "attack" should be understood as intentional injury or harm, not including the slight injury.
4 note "excessive defense" itself is not an independent charge, should be clear about how to "excessive defense" qualitatively and punishment: qualitative should according to the behavior of people obviously exceeds the limits of necessity and caused major damage to the subjective and objective result, apply the criminal law code, such as the crime of intentional injury, the crime of negligence causing death; the punishment principle is "should be mitigated punishment or be exempted from punishment."



[method] key
Twenty-first in order to enable countries, the public interest, the person himself or herself or others, property and other rights from danger is , not the emergency action taken, caused the damage, he shall not bear criminal responsibility.
The emergency exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment.
To avoid danger to oneself on the provisions of the first paragraph, do not apply to the office, business person who is charged with specific responsibility.

[] mean decomposition
1 the same self-defense, emergency hedge is not only to protect the behavior of their own interests, but also to protect the people and country, social interests, the protection of the legitimate interests of not only the personal rights, including property rights and other rights.
2 of the third paragraph of this article shall apply to the emergency system exception, is for the person who is charged with specific responsibility duty, business such as firefighters and other purposes, provided that when the "avoid danger to oneself".

[] don't confuse
Don't confuse the emergency and twentieth of this article the justifiable defense, the key point lies in the difference between the two:
1 causes. The condition causes of justifiable defence is unlawful infringement, the cause of necessity is a kind of risk, including natural disasters of non-human damage.
2 limit condition. The justifiable defense damage can be greater than or equal to the protection of the interests of the interests, not equal to more than the protection of emergency caused by damage.
3 conditions. Emergency requirements must have, there's no better way to. And self-defense has no such requirement.
4 object condition. Justifiable defence requirements against the object can only be illegal and against me, and the emergency could be innocent third party, object two damage have principle distinction.
5 of the third paragraph of justifiable defense is not similar to the twenty-first limit (i.e., subject to constraints).



[method] key
Article twenty-third has already begun to crime, due to reasons other than the criminals will not succeed, is attempted crime.
For the offense, can be accomplished crime shall be given a lighter or mitigated punishment.

[method]Twenty-second, 24.

[] mean decomposition
1 the provisions of this article is the feature and principle of punishment of the attempted crime. The attempt of crime has three elements or features that are distinguished with other stop the attempted crime signs: first, people have begun to crime, this phase difference and preparation for a crime; second, the incomplete crime (to no avail) and stop, the phase difference and the accomplishment of a crime; third, crime stop at the unfinished form is for reasons other than the criminals will cause the discontinuance of crime, and the distinction between.
2 preparation for a crime and attempted crime is the result of factors outside the will of crime did not succeed, have begun to commit , is the key point of preparation for a crime and attempted crime division. The so-called has already begun to crime, is refers to the behavior person has begun the implementation of criminal law the crime crime in the elements, such as the "criminal law" the 236th rape behavior is embarked on the women "s violence, threats and other means, to achieve the purpose of forcible rape. You can think so, preparatory behavior for a crime is completed for the sub specific crime behavior and the implementation of the crime to create convenient conditions, create the possibility for the realization and implementation; criminal behavior is to direct the completion of crime, variable preparatory stage implementation and completion of crime reality to reality directly.
3 from the time stage, preparation for a crime only exists in the preparatory stage, attempted crime only exists in the implementation stage, and the crime check can be found in the preparation stage, can also exist in the implementation stage.
Type 4 attempted crime has two: one is the completed attempt and not the completed attempt; two is the attempted crime and not attempted crime (of which, impossibility can be divided into tool impossibility and object impossibility). The criminal act is the end of the standard, which is the actual behavior can constitute the crime accomplishment standard.
5 for the principle of punishment of attempted offense, should pay attention to two aspects: one is the accomplished offense as reference, two is suitable when lenient punishment, that can be accomplished crime shall be given a lighter or mitigated punishment.



[method] key
Twenty-fourth in the criminal process, gave up the crime or automatically and effectively prevent the result of crime, discontinuation of a crime refers to.
The discontinuance of crime, no damage is caused, be exempted from punishment; damage is caused, be given a mitigated punishment.

[method]From twenty-second to 23.

[] mean decomposition
1 the provisions of this article is the features of desistance of crime and punishment principle. One of the most basic characteristics of discontinuance of crime is the "automatic ", namely the behavior people out of their own will and give up since at that time, this can continue to execute and complete the crime, this is the key to distinguish the discontinuance of crime in preparation for a crime, attempted crime.
2 the discontinuance of crime has two forms: one is stopped automatically give up crime; two is stopped automatically and effectively prevent the result of crime (a negative stop crime with omission of the continued implementation is not enough, it must take a positive form to prevent and stop the completion of the crime results and this prevents the behavior must work). The former is called passive suspension, the active suspension.
3 it is worth noting, intentional crime forms -- ready, suspend, and abortive are crime stop shape , between them is a kind of independent of each other, and can not be transformed into each other, such as when reach the crime accomplished offense would not be converted to attempted crime, discontinuation (as the thieves to steal the money and take the initiative back to its place, because of the crime has been completed to the crime, there is no time and space conditions, and therefore does not belong to the discontinuance of crime termination).
The principle of punishment 4 discontinuation of crime is special, the first clear is the "should be" lenient punishment rather than as preparatory crime, attempted made that "can" lenient punishment; second, pay attention to the punishment of the discontinuation of crime is different from the preparatory crime, attempted crime accomplished crime shall be punished as; third, to suspend the clear key punishment committed to see if harm results, the results damage, should be mitigated punishment, caused no damage results, shall be exempted from punishment.



[method] key
Twenty-sixth organization, leads a criminal group in carrying out criminal activities or play a principal role in a joint crime, are the main culprits. More than three people as the common crime is fixedly consisted of organized crime, criminal groups.
Ringleader who organizes, leads a criminal group, punishment according to all the crimes committed by the group.
The principal otherwise stipulated in the third paragraph, shall participate in or organize, command of all criminal punishment.

[method]The ninety-seventh article of this law.

[] mean decomposition
1 pay attention to the crime group feature (number -- more than 3 people; purpose and behavior -- the common crime; organization -- more fixed).
Several forms of the 2 principal:
(1) the first molecular organization, leads a criminal group;
(2) from the criminal organization, planning, command in the crime mob (i.e. the ringleader in the crime of);
(3) other plays a principal role in a joint crime crime molecules (the main perpetrator).
The 3 principal criminal responsibility
The third paragraph of this article and paragraph fourth made special provisions, according to this provision, the principal's criminal liability can be divided into two cases: one is to ringleaders who organize, leads a criminal group, according to all the crimes committed by the punishment group; two is for the other principal, shall be in accordance with its participation in the organization, or command of all criminal punishment.
4 special attention should be paid to the "principal" is not legal weight penalty plot, if no special provisions, should be in accordance with the statutory sentence directly to specific crimes corresponding punishment.



[method] key
Twenty-ninth who instigates others to commit a crime, shall be punished according to the role he plays in a joint crime. Instigates a person under the age of eighteen weeks crime, shall be given a heavier punishment.
If the instigated person does not commit the instigated crime, the instigator, may be given a lighter or mitigated punishment.

[method]The act of 295th, 353.

[] mean decomposition
1 the abettor role in a joint crime. Instigator may be the principal, there may be an accessory, but may not be coerced offender.
2 the instigator of the accusation. To clear the key no independent abetting crime, and should be based on the specific content of the crime of abetting the fixed , such as abetting theft should be abetting theft, rape should be the crime of rape.
To determine the criminal responsibility 3 abettor. First, make sure he has played in the joint crime function (principal or accessory); secondly, to consider factors severely or leniently punish. If the object is under the age of 18, shall be given a heavier punishment; if the instigated person does not commit the instigated crime (i.e. attempted instigation), may be given a lighter or mitigated punishment.

[] don't confuse
The difference between impart crime method 1 "criminal law" article 295th of the crime and the crime of solicitation. Instigator is just his crime, and impart crime method behavior is to teach skills, specific implementation of a crime to others, whether there is abetting others to commit the crime in question. Furthermore, impart crime method behavior has its own independent crime and the legal punishment.
2 do not take a method to the instigator of the law clearly stipulates the crime as the instigator. Such as the "criminal law" the 353rd stipulation: "lure, instigate, deceive others smoking, injecting drugs", because of "criminal law" the provisions for the separate crime that lure, instigate, deceive others drug crime and the provisions of the corresponding legal punishment, so this kind of abetting behavior is different from the abetting crime.



[method] key
Article thirty-first a crime committed by a unit, the unit is to be fined, and the person in charge directly responsible and other directly responsible persons officer sentenced to a punishment. The provisions of this Law and other laws provide otherwise, in accordance with the provisions.

[method]Thirtieth; the Supreme People's Court on the trial of September 28, 2000 "unit crime pieces on the directly responsible person in charge and other directly responsible personnel are distinguished principal, accomplice the reply of the Supreme People's court"; in June 18, 1999 "on the trial of the unit crime case concrete application law issues related to interpretation"; in 2002 July 4, by the Supreme People's Procuratorate "about the alleged crime unit, cancellation, revocation of the business license shall be revoked or declared bankruptcy should be how to reply the prosecution problem".

[] mean decomposition
1 of the unit crime, we should first make clear the must is legal, as long as the law unit can be the crime crime lord body, that of unit crime and the criminal responsibility of unit commitment problem, not all the crimes can be composed by unit.
The 2 constitution of unit crime "companies, enterprises, and institutions" includes both the state-owned companies, enterprises, institutions, also includes a lawfully established joint ventures, cooperative enterprises and legal person owned, private and other companies, enterprises, undertakings. According to the Supreme People's Court on the trial of criminal cases in June 18, 1999 "unit issues related to law application explanation", should pay attention to the following two may in theory of unit crime situation: one is individual to set up illegal and criminal activities of the companies, enterprises, the business unit crime, or a company, enterprise, institution establishment later, to implement the crime as its main activities, shall not be criminalized units; two is the name of the unit crime theft, the illegal income by crime of individual crime, directly to the conviction of natural person crime punishment rather than in the theory of unit crime.
3 pairs of criminal penalties to double punishment principle, to a single penalty for exceptions, the double punishment principle, which means the unit found fined, executives at the same time is directly responsible to the unit and other directly responsible personnel penalty. While the single penalty system is one of the few units in the specific provisions of criminal law crime to punishment, that is only the direct responsibility personnel (such as the 137th major responsibility for security engineering. the crime, the 161st crime of providing false financial report, 244th of the crime of forced labor). Notable is, only the unit criminal responsibility is fine form.
4 when the unit crime, the criminal responsibility of the personnel directly responsible for the crime behavior of many people, the distinction between whether should decide offender, accessory, according to the Supreme People's court in September 28, 2000 "on the trial of the unit crime case the persons who are directly in charge and other directly responsible personnel are distinguished principal, accomplice problem replied" provisions, the person in charge directly responsible and other persons directly responsible for the crime of, can not distinguish the principal, accessory, according to the unit crime in the role of punishment.
5 in the processing unit is suspected of committing a crime criminal cases, there is a practical problem that the unit because of suspected illegal and criminal activities and revocation, cancellation relevant competent departments, the business license shall be revoked or declared bankrupt, how to deal with, according to the July 4, 2002 the Supreme People's Procuratorate on suspicion of crime unit "revocation, cancellation, its business license shall be revoked or declared bankrupt shall specify the reply" how to prosecute the persons directly in charge of the unit, with the implementation of crime and other personnel directly responsible shall be investigated for criminal responsibility, and no longer prosecution to the unit.


The third chapter penalty

[method] key
Article thirty-sixth where the victim has suffered economic losses as a result of a criminal act, the criminal shall be given criminal punishment in , be sentenced to compensation for economic loss according to the situation.
The criminals bear civil liability for compensation, and was sentenced to a fine, and its assets are not sufficient to pay off, or be sentenced to confiscation of property, should bear the liability for civil compensation to the victim.

[] mean decomposition
1 the order of civil and criminal liability competes, "ancestors to punishment", the purpose is to protect the legal rights of the victims.
2 note that this article applies not only in scope, concurrence of civil liability and criminal liability, the key lies in the criminal responsibility of criminals including the property punishment responsibility, and its property is insufficient to pay the amount of fine penalty or be sentenced to confiscation of property of all time.



[method] key
The thirty-ninth criminals sentenced to public surveillance, during execution, it shall comply with the following provisions:
(a) to abide by the laws, administrative regulations, submit to supervision;
(two) without the approval of the organ executing the speech, may exercise, publishing, assembly, association, parade, demonstration of the right to freedom;
(three) according to the rules of the organ executing the reporting his activities;
(four) to comply with the provisions of the executive organ of the;
(five) leave live in city, county, or moved, it shall be submitted to the approval of the organ executing the.
Criminals sentenced to public surveillance, in labor should get equal pay for equal work.

[method]The act of seventy-fifth, 84, 43.

[] mean decomposition
1 control crime in penalty execution period, shall comply with several statutory obligations and other criminals different rights (i.e. should enjoy equal pay for equal work in labour).
2 control criminal penalty execution organs for the public security organs, instead of grassroots organizations and other units.

[] don't confuse
Several legal obligations and seventy-fifth 1 control criminal in accordance with the provisions of the probation, the provisions of article eighty-fourth of the parolee shall comply with the law duty not to be confused, because the control crime, probation, parole is a personal freedom is not in prison for execution of the punishment of criminals, statutory obligations of the observe in the execution period has great similarity: the terms of article (a), (three), (four), (five) content with seventy-fifth, eighty-fourth basic consistent, but the biggest difference lies in that the terms of article (two) is two no, that is to say, "the right to freedom of speech, the six" whether the deprivation is control crime, parole and probation obligation to distinguish.
2 pay attention to control crime and criminal offence in different labor remuneration on the right: the former is "equal pay for equal work", while the latter is the " can deliberate to return" (43.



[method] key
Article forty-eighth the death penalty criminals in the most serious offense. Who should be sentenced to death, if immediate execution not required may be announced at the same time, with two years suspended sentence.
The death penalty except for judgments made by the Supreme People's court in accordance with the law, should be submitted to the approval of the Supreme People's court. Death sentence with a reprieve,
May be decided or approved by a higher people's court.

[method]"The people's court organization law" thirteenth notice "; 1983 the Supreme People's court authorized high level people's court approved the death penalty cases".

[] mean decomposition
Relationship between the 1 death and 2 year stay of execution. 2 year stay of execution is not an independent kind of punishment, but a kind of application of death penalty system, namely in the criminal was sentenced to capital punishment case, it applies the possibility, that is sentenced to death is a prerequisite for a suspended death sentence.
The 2 issue of the death penalty approval right. The death penalty is decided by the Supreme People's court, in principle should be reported to the Supreme People's court for approval. "The death penalty" here refers to the "death penalty", because of being sentenced to death with a reprieve of 2 years of approval authority belongs to the higher people's court, no need to report.
Decentralization of approval right of death penalty problem 3. The revised "Criminal Procedure Law", "criminal law" although the provisions in principle on the death penalty should be
When approved by the Supreme People's court, but before the Supreme People's court in accordance with the provisions of the relevant provisions of the Standing Committee of the NPC and the "organization law" court authorized by the higher people's court approved the death penalty cases in judicial practice is still valid: the murder, rape, robbery, explosion and other serious harm public security, and in accordance with the law was sentenced to the immediate execution of death penalty cases, can be approved by all higher people's court. But to endanger national security, economic crime, corruption and bribery crimes in violation of duty soldiers, was sentenced to the immediate execution of death penalty cases are still reported to the Supreme People's court, approved by the. In addition, after 90 years, according to the drug crimes in serious cases, the Supreme People's court has authorized the death penalty, the higher people's Court of Yunnan, Guangdong, Sichuan, Guangxi, Guizhou, Gansu on the part of the drug cases have the right to approve (as the "criminal law" the provisions of article 347th of cases of smuggling, trafficking, manufacture, the crime of transporting drugs).



[method] key
When the forty-ninth crimes under the age of eighteen and trial of the pregnant women, the application of the death penalty.

[method]Reply of the Supreme People's Court on August 4, 1998 "pregnant women whether death penalty problem in custody spontaneous abortion at the trial".

[] mean decomposition
The provisions of this article is to apply the death penalty restriction:
1 the juvenile death penalty. First of all, the minor refers to people under 18 years of age; secondly, under 18 years of age is to make crime subject, rather than to the trial as the standard, therefore, the perpetrator was trial even adult, but as long as the crime before the 18 birthday (including birthday) implementation, do not apply the death penalty; third, the juvenile death penalty, including the immediate execution of death penalty, including the death penalty was suspended for 2 years, which indicates that the crime of minors,, in any case, the maximum penalty is life imprisonment.
The death penalty is not applicable for 3 pregnant women. First of all, "pregnant women" in time of trial based, rather than a crime, which is different from the minor crime case (a crime shall prevail, a judgment shall prevail); secondly, this "judgment day" specifically refers to the whole from custody the criminal litigation procedure execution, not only refers to the court phase; third, during the trial, even if the "pregnant women" abortion, the death penalty can not apply; fourth in the trial period, if is the natural abortion, they have a specific analysis, differential treatment, according to the Supreme People's court "about pregnant women in custody during spontaneous abortion trial whether death penalty issues concerning" provisions: pregnant women because of suspected criminal in custody after natural abortion, but also due to the fact that the same prosecution, trial, should be regarded as "time trial for pregnant women", do not apply the death penalty in accordance with the law. The prosecution or trial, criminal facts, and the facts of the crime is lawfully detention is " the same facts" as the standard to judge whether the spontaneous abortion women as "the pregnant women"; fifth, the "pregnant women" do not apply the death penalty, also do not apply suspended for 2 years.

[] don't confuse
Don't put the time premise "under the age of 18" and "pregnant women" confused, the former time standard is "time" crime, the latter is "judgment day".



[method] key
Article fiftieth sentenced to death with a suspension of execution, the execution period, if not intentional crime, two years after the expiration of , commuted to life imprisonment; if there are major meritorious service expires, two years later, reduced to fifteen to twenty years in prison; if the intentional crime, verified by the court, by the Supreme People's approval, execution.

[method]"Criminal law" article seventy-eighth.

[] mean decomposition
The legal consequences of 1 of the death sentence with a reprieve (or after the expiration of the period for processing) may have three kinds: one is the implementation of the death penalty, two is reduced to prison, three is the sentence (15 to 20 years).
The corresponding condition of 2 three consequences: first, must have their execution conditions during the 2 years implementation of intentional crime, verified, and shall have been approved by the Supreme People's court, the request is an intentional crime rather than just committed a crime, even though in the 2 year test period again a new crime, but for the negligence crime, still cannot be executed; secondly, to life imprisonment condition is 2 year test period no intentional crime, even if there are violations in general and even a loss of crime, should also be commuted to life imprisonment; thirdly, to fixed-term imprisonment is the conditions in the 2 year test period not intentional crime but a major meritorious services. Note that sentence is in the 15 to 20 years following the range, "major meritorious service" can refer to "criminal law" stipulates that the Seventy-eighth kinds of legal situations.
3 for an intentional crime and approved the immediate execution of death penalty does not need to wait until the 2 year test period, in principle that intentional crime and were verified to perform approval. But to life imprisonment with prison is not, need to wait until the expiration of 2 years after the test before they can legally commutation.



[method] key
During the fifty-first of the death sentence with a reprieve, calculated from the date of the judgment. Suspension of execution to fixed-term imprisonment is counted from the death sentence with a reprieve, expiration date.

[method]"Criminal law" forty-first, 44, 47; reply how to determine the period November 4, 2002 the Supreme People's court "off on the suspension of execution of death penalty.".

[] mean decomposition
The judgment shall be calculated from the date of 1 of the death sentence with a reprieve during 2 years. "Judgment day" is the suspension of execution of death penalty decision shall, according to the letter of approval, the calculation of legal documents with a judgment or ruling announcement or the date of service. Decision before the period of detention shall not be counted.
The 2 sentence is commuted from a known problem in prison. If it is reduced to life imprisonment, because life imprisonment is "no", "life", so there is no sentence starting problem; if it is to fixed-term imprisonment is, there is a sentence starting problem, should carry out the expiration of the suspension of the death penalty is calculated from a period of 2 years, is full of second days after the start calculating the prison sentence. Even after a period of 2 years, failed to make an immediate commutation but after several days or even months after the make, should also be calculated from a period of 2 years from the day after, but not from the commutation from the date of entry into force.

[] don't confuse
During the 1 of the death sentence with a reprieve from the date of judgment and not confuse "the date of execution", suspension of execution to fixed-term imprisonment is counted not confuse is computed from the date of commutation.
2 this sentence with "criminal law" the calculation not stipulated in article forty-first, the provisions of regulation forty-fourth of criminal detention, the provisions of article forty-seventh of prison sentence beginning confused, after the three term is the same as the starting point, is calculated from the date of execution, and the execution of the judgment before custody the term is to be shortened to.



[method] key
Fifty-third fine within the period specified in the judgment time or in installments. If no pay, forced to pay. For unable to pay the fine in full, the people's court at any time to find the person subjected to execution has the property, should be ready. If an irresistible disaster has true difficulties in paying, can be reduced or exempted according to the circumstances.
[method]In November 15, 2000 the Supreme People's Court on the "Supreme People's Court on certain issues concerning the application property punishment".

[] mean decomposition
1 of the implementation of fine punishment of several legal way:
(1) for a payment;
(2) for installment payment;
(3) forced to pay;
(4) at any time.
2 according to the provisions of the judicial interpretation, fine the minimum amount principle of not less than 1000 yuan, while a juvenile crime minimum amount of fine of not less than 500 yuan.
3 relief to pay the fine condition is the objective reasons and non subjective reasons: namely the behavior person suffered irresistible disaster, there are difficulties to pay. According to the judicial explanation, this situation by criminals and their families to the people's court shall file a written application, as ordered by the court whether to reduce and reduce the amount of. This is different from the "criminal law" the Seventy-eighth regulation constant commutation conditions.
4 at any time. There is no time limit, which the court at any time as long as found the person subjected to execution has the property should be with (when forced to pay).



[method] key
Article fifty-fourth deprivation of political rights is deprivation of the following rights:
(a) the right to vote and to be elected;
(two) speech, publication, assembly, association, parade, demonstration of the right to freedom;
(three) the right to hold a position in state organs;
(four) as a State-Owned Company, enterprise, institution or people's organization right.

[method]Article second this Law fifty-eighth.

[] mean decomposition
1 deprivation of political rights of the content or the criminals have been deprived of political rights shall comply with the prison Wu Yi, besides 4 kinds of obligations provided in this article, and the fifty-eighth obligation to abide by the laws, administrative regulations and national public security departments of supervision and management regulations, submit to supervision.
2 don't confuse this law article third and fourth of the content. Deprived of political rights can not serve as state organs duties (including leadership positions, including general duties), but not in a State-Owned Company, enterprise, institution or people's organization duty is only and does not include the position of leadership.



[method] key
The fifty-fifth term of deprivation of political rights, in addition to the law the fifty-seventh regulation, for one to five years.
For control of additional deprivation of political rights, and the control period of deprivation of political rights shall be performed at the same time.

[method]The fifty-seventh article of this law.

[] mean decomposition
Deprivation of political rights in accordance with the law term, there are four:
1 separate application, or when the punishment for criminal detention, fixed-term, deprived of political rights for the sentence of 1 to 5 years, this general.
2 when the principal punishments for regulation, the term of 3 months or more than 2 years; when the control is the punishment case, the longest sentence period up to 3 years.
3 when the penalty is life imprisonment or the death penalty, his sentence to life.
4 as life imprisonment or the death penalty punishments (suspension of execution of death penalty law) was reduced to fixed-term imprisonment, the term of deprivation of political rights from life reduced to 3 to 10 years.



[method] key
Fifty-eighth additional deprivation of political rights from prison, prison, detention is executed on the day or from the date ; deprivation of political rights shall of course be during the execution of punishment.
The criminal was deprived of political rights, during execution, shall abide by the laws, administrative regulations and the relevant supervision and administration of the public security department under the State Council provisions, submit to supervision; rights shall not exercise the fifty-fourth article of this law.

[method]The fifty-fifth article of this law.

[] mean decomposition
The counting method of deprivation of political rights:
1 in addition to the death penalty, life imprisonment, the sentence starting problem does not exist;
2 in addition to prison (including the original for the reprieve or life imprisonment shall be changed into the prison), his sentence in prison or detention from being completed date, if be paroled during execution, deprived of political rights from the date of parole sentence;
3 in addition to the control punishment, execution and surveillance and computing sentence, that is to say, the deprivation of political rights sentence from the execution date (Article 41);
4 may be sentenced to deprivation of political rights shall, calculated from the date of execution;
5 when in prison, detention punishment in the prison execution, additional deprivation of political rights. Although from prison, criminal detention. line end date, but during prison, criminal detention, still be deprived of political rights;
6 it is worth noting, if in prison, detention period was on parole, attached to the prison, sentenced to deprivation of political rights and punishment, should be the "parole date date" rather than "parole sentence expiry date".



[method] key
Article fifty-ninth confiscation of property is the whole or a part of the confiscation of property. Confiscation of all the property property, should keep the necessary living expenses for the criminal and his dependent family members.
When sentenced to confiscation of property, shall not be subject to the criminal's family members own or the confiscation of property.

[] mean decomposition
1 confiscation of property is limited to criminal individual existing property, which is different from the fine, the latter did not limit;
2 confiscated property scope and limited to the legitimate property of criminals, if the proceeds of crime, problem is to recover and non range penalty of confiscation of property;
3 confiscation of all the property, it should be noted that follow the principle of humanitarianism, must retain the necessary living expenses for the criminal and his dependent family members;
4 in the confiscation of property, pay attention to the nature and scope of property belonging to distinguish, for the criminal's family members own property is not within the scope of received No.



[method] key
As the liabilities of sixtieth before the property was confiscated criminals, need to use the confiscated property to repay, the request of the creditors, shall be repaid.

[method]In November 15, 2000 the Supreme People's court "Regulations" on certain issues concerning the application of the penalty of property seventh.

[] mean decomposition
1 use the confiscated property to repay the debt of three basic conditions: one is the debt is in the confiscation of property right before execution liabilities of crime molecules; the two is the need to use the confiscated property to repay (that is the general confiscation of all the property confiscated or although is part of the property but the criminals of property not enough to pay off the due debt); three is my request must be approved by the creditor.
2 use the confiscated property to repay the debt system reflects the democratic, humanistic principle, protect the legitimate rights and interests of other citizens. Conditions applicable law stipulates, who meets the above three basic conditions at the same time, the judicial organ shall be allowed to repay, rather than "can" to repay, the law didn't give judicial authority is the right to reimbursement.
3 it should be noted, the term "negative the confiscation of property before the criminal legitimate debts" time requirements, according to the provisions of the judicial interpretation, should refer to other people's legitimate debt criminals in the decision before the commencement of the negative.