Master of the review questions (eleven) -- criminal law to discuss the problem in 9

Similarities and differences between the 8 Legal Defense and emergency hedge.

Answer:

The same point:(1) the same purpose. The two is to protect the country, the public interest, the person himself or herself or others, property and other rights. (2) the same. The two must be in order to implement the legitimate rights and interests are violated. (3) the same responsibility. Two more than the legal limit consequential damage, it shall bear criminal responsibility, but should be reduced or exempted from punishment.

Difference.(1) the harm from different sources. Hazard sources can only be justifiable defense is illegal and criminal behavior; emergency hazard sources which may be unlawful infringement people, may also be derived from natural disasters, also may be the animal invasion or human physiological disorders. (2) behavior of different objects. Justifiable defense is the only object of illegal violate oneself, not for the third; and the emergency action must be third, is the damage to the legitimate behavior on the legitimate rights and interests of others. (3) restrict the behavior of different. The implementation of justifiable defense, necessity, even can use other methods to avoid illegal infringement, also allows self-defense; and the implementation of emergency behavior is out of have no alternative against one's will, in addition to hedge no other choice. (4) the behavioral limit of different. The justifiable defense damage, can be less than, can be greater than the unlawful acts against the possible damage; and the necessity of the third legitimate rights and interests of the damage, can only be less than the risk of possible damage. (5) the main limitation. Justifiable defence is the legal right of every citizen, is a legal obligation of the people's police to carry out their duties; emergency is not applicable to the office, business person who is charged with specific responsibility.

Condition 9 of self-defense.
Answer:Just Cause, refers to the state, the public interest, the person himself or herself or others, property and other rights from being infringed, the unlawful infringement behavior to stop their illegal violations of the implementation and no obviously exceeds the limits of necessity and causes serious damage.
Justifiable defence must meet the following conditions:
There must be unlawful infringement occurs, this is the most basic of self-defensePrerequisite.
These conditions include two aspects:One is an unlawful infringement. The so-called unlawful infringement, refers to the implementation of the people on the state, the public interests, citizens lawful rights and interests of the illegal invasion and damage behavior. As long as it is unlawful infringement behavior, does not claim it has reached or will reach the extent of crime, the defender can implement justifiable defense against the unlawful behavior in accordance with the law, however, any infringement degree, usually limited to violent, destructive, the urgency of unlawful infringement.Two, must be unlawful infringement is real. The unlawful infringement is a kind of objective facts, presumably not imagination. The unlawful infringement does not exist in fact, behavior of people mistakenly believe that there is illegal violation of assumption of the offender to defense, which belongs to the imaginary defense. For the imaginary defense, should be considered subjective have no fault to different processing.
(1) must be unlawful infringement is ongoing, it is justifiable defenceThe time condition.
Being violated, refers to unlawful infringement has started, not the end. In general, unlawful infringement has begun refers to unlawful infringement people have started to direct infringement behavior. However, for some dangerous crime, although the crimes have not begun to implement, but has the legitimate rights and interests of causing immediate threat, should also be considered unlawful infringement has started. The unlawful infringement is not over yet, refers to unlawful infringement or the dangerous state is to continue, the defender can be stopped or excluded by means of defense. Time requirement of justifiable defence, defence and cannot advance the afterwards defense. The so-called pre defense, is the so-called defense refers to unlawful infringement is not yet starts; afterwards defense refers to the so-called defense in unlawful infringement has ended.
(2) defensive behavior must be directed to the perpetrator of himself, this is justifiable defenceObject condition. Anyone except for unlawful infringement people, is not a defense.
(3) right must be in order to enable countries, the public interest, the person himself or herself or others and other rights from being infringed illegally, this is defenseThe subjective conditions.
If not for the purpose of self-defense, cannot be established. Therefore, the following two kinds of behavior is not justifiable defense: one is the provocation of defense, namely the act of infringement, to deliberate provocation, to lure, make each other unlawful infringement, then excuse defense hurt each other's behavior; two is the illegal infringement and mutual, mutual violate behavior both for illegal intention against each other and happen.
(4) defense can not obviously exceeds the limits of necessity, causing major damage, is justifiable defenceLimit conditions.
Whether the apparently exceeds the limits of necessity and caused great damage, is the difference between the legal and illegal defense, justifiable and worked as a sign of. The necessary limits of justifiable defense, according to the provisions of the criminal law scholars advocated and our country criminal law article twentieth paragraph second, defensive behavior as long as necessary for the unlawful infringement, and according to the environment, the defender and unlawful offender illegal violation occurred the strength contrast of objective factors such as judgment, defensive behavior nature, means, strength and damage did not significantly more than the illegal nature, means, strength and possible damage, or although the causes, means, and strength properties of defensive behavior damage significantly more than the illegal infringement, but the real damage is not serious, are within the range of justifiable defense, but not think over defense.

Limits of 10 China's criminal law on the application of the death penalty.
Answer: death is the penalty method to deprive criminals of life. China has consistently adhered to "keep the death penalty, adhere to the less kill, the death penalty policy to prevent wrong kill". According to this policy, applicable conditions of death penalty made strictly limited.
(1The scope of application of death penalty restriction).
"Criminal law" article48Article: "the death penalty criminals in the most serious offense". "The most serious crimes" refers to the crime harm to the interests of the state and the people are especially serious, extremely cruel means, the plot is very bad, the actor has serious danger to human body, subjective malignant is especially huge, namely the criminals commit the most heinous crimes. Sentenced to death for the crime regulated by the criminal law, are in line with the overall plot requirements, and more clearly defined standards applicable to the specific.
(2The suitable object of death penalty restriction).
"Criminal law" article49Regulation: at the time the crime is committed18A person under the age of pregnant women and the time of trial, the application of the death penalty. The so-called do not apply the death penalty, including the death penalty executed immediately, and sentenced to death with a two-year reprieve. The crime of discontent18Old people do not apply the death penalty, is not sentenced to death, rather than not executed, be18Years later execution. Trial when pregnant women do not apply the death penalty, is not sentenced to death, rather than not executed, for delivery later execution. Whether for pregnant women is in custody or in the trial period, should not to be sentenced to death and to the artificial abortion; have artificial abortion, should still be pregnant women as a trial, death penalty does not apply. If the time of trial found no criminal pregnant and the death penalty, the execution that criminals are pregnant, should stop the execution, and immediately report to the people's court approved the death penalty shall be amended according to the law.
(3The procedures for examination and approval of death penalty).
"Criminal law" article48Article2Paragraph: "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, by the higher people's court or approved." Therefore, in accordance with the provisions of the criminal law, right to approve death penalty must be exercised by the Supreme People's court. Notable is, the Supreme People's court before the new criminal law implementation in1997Years4Monthly basis1983"The people's court organization law" of the people's Republic of China, in the form of notification that will be delegated to the higher people's court approval right of death penalty cases.
(4Restrictions on the death penalty execution system).
"Criminal law" article48Provisions, who should be sentenced to death, if immediate execution is not essential, can also announced a two-year reprieve sentenced to death. This is unique to China's suspension of execution of death penalty system. The implementation of this system, greatly narrowing the scope of immediate implementation of the death penalty. According to this provision, application of suspension of execution of death penalty must have two conditions: one is the execution of the crime, which must be extremely serious crime. This is declared the premise condition of the death sentence with a reprieve. Two Is it right? Must be executed immediately. This is the basic condition for death sentence with a reprieve, which distinguishes the immediate execution of death penalty principle of boundaries and death sentence with a reprieve. Criminals sentenced to death, the death sentence with a reprieve expires, there are three kinds of treatment methods:
In the period of suspension of execution of death penalty, if not intentional crime,2Years later, to life imprisonment.
In the period of suspension of execution of death penalty, if there are major meritorious services,2Years later, reduced to15Years or above20Years in prison.
During the execution period, if the intentional crime, verified, approved by a higher people's court submitted to the Supreme People's law , execution.
11. in China's criminal law system of death sentence with a reprieve.
Answer: the sentence is death with a two-year reprieve, is sentenced to death with a two-year reprieve, forced labor, see how one behaves in the future, the system. Reprieve is our country in the first system of execution of punishment, the system for the implementation of the policy of killing fewer, and promote the transformation and the new crime, combat and disintegrate criminals, plays an important role.
Applicable objects a reprieve.
"Criminal law" article48Provisions, who should be sentenced to death, if immediate execution is not essential, can also announced a two-year reprieve sentenced to death. This provision can be seen, the applicable object of the sentence must have two conditions: one is the perpetrators of criminal acts has reached a very serious degree, he should be sentenced to death; two is due to special circumstances offender has certain laws without the need for immediate execution of death penalty.
The death sentence with a reprieve test period.
Stay of execution of probation probation period of two years, during the period of suspension of execution of death penalty, calculated from the date of decision. During the suspension of execution of a death penalty judgment in custody, not counted within the sentence test period.
The death sentence with a reprieve test results.
The test results with two kinds: or is no longer executed or commutation of the sentence, or the death penalty.
The sentence commutation. If the sentence made within the probation period not intentional crime,2Years later, to life imprisonment. If there are major meritorious services,2Years later, reduced to15Years or above20Years in prison. If the death sentence with a reprieve commit negligence crime in the test period, it shall still be commuted to life imprisonment.
The reprieve execution. If the sentence made within the probation period and intentional crime, verified, it should be executed. To make the death penalty reprieve did not have to wait for the probation period of two years, the probation period as long as that reprieve committed intentional crime and verified, shall be executed.
The principles of criminal law in China 12. .
Answer: the penalty discretion, referred to as the sentencing, is refers to the court according to the criminal law, to constitute a crime, to determine whether the punishment, sentenced to the punishment and judicial activities are used in a system of punishment.
China's criminal law article61Article: "when deciding the punishment of a criminal element, should be based on the facts of the crime, the nature of the crime, the plot and the degree of harm to society, to the relevant provisions of this law." Based on these Provisions, the principle in the criminal law of our country is based on the facts of a crime according to the criminal law as the criterion.
⑴ to criminal facts
The facts of the crime has broad and narrow sense. The facts of the crime, refers to the sum of all the actual situation about crime exist objectively. It includes both belong to the basic facts of elements of crime constitution, also includes other factual harm degree of social influence outside elements of crime. The narrow sense refers to the facts of the crime, "criminal law" article61Strip and the nature of the crime, the plot and the degree of harm to society to coordinate the facts of the crime, the basic fact of constitution of crime. "In the criminal facts" in crime fact, refers to the facts of the crime, including several facts of the crime, the nature of the crime, the circumstances of the crime and the crime, the degree of harm to society and other aspects. In the judicial practice of implementing "the criminal fact based" principle, we must find out the facts of the crime, the correct determination of the crime nature, fully grasp the social harm of crime plot comprehensive evaluation of crime.
In the criminal law as the criterion
To achieve appropriate sentencing, must also take the criminal law as the criterion. This is the essential requirement of socialist rule of law, but also embodies the principle of legality. In the judicial practice of implementing "in the criminal law as the criterion" principle must be in accordance with the provisions of general principles of criminal law applicable penalty and sentence, must be in accordance with the applicable penalty applicable conditions of the general provisions of the criminal code and the scope of application, in accordance with the provisions of the general principles of criminal law system of penalty punishment, in accordance with the general principles of criminal law, specific provisions about all kinds of circumstances of sentencing the discretion of punishment, in accordance with the statutory penalty sentencing crimes in specific provisions of criminal law, in accordance with the provisions of the criminal procedure law program.
13 the voluntary surrender conditions.
Answer: surrender, is refers to the criminal offender crime later surrendered, truthfully confesses the crime behavior, or coercive measures of criminal suspects, defendants and is serving a sentence, the confession of the judicial organ has not grasped myself other crimes act. Surrender is divided into general surrender and special surrender. According to the "criminal law" article67Article1Provisions and the relevant judicial interpretations, the establishment of general surrender must meet the following conditions:
The voluntary surrender
The so-called voluntary surrender, refers to arrest criminals in crime, before, I based on the will and to the relevant authorities or individuals admitted that he committed a crime, and voluntary control in the relevant authorities or individuals under, waiting for further replacement of crime. Its specific meaning:
The surrender behavior must occur before the crime has not been arrested.
The must be based on criminal will automatically.
The must admit to the relevant organ or personnel implementing specific crime.
The must be placed under the control of a relevant organ or personnel, waiting for further explain the facts of the crime, to accept the national judicial examination and judgment.
The above four aspects must have at the same time, in order to set up a voluntary surrender.
The confession on facts
The conditions of the meaning of surrender:
The suspect alleged to be the facts of a crime.
The surrender of the confession of the crime must be his own.
  The surrender must truthfully confessed the crime.
According to the "criminal law" article67Article2The establishment of the special voluntary surrender of the provisions of paragraph, shall meet the following conditions:
The subject must be coercive measures of criminal suspects, defendants and criminals serving sentences.
The must truthfully confessed the judicial organ has not grasped myself other crimes.
Provisions on the punishment of criminal law in China 14. .
Answer: the combined punishment for several crimes, is refers to the court for crimes committed the same act within the statutory time limits in conviction and sentencing method respectively, the decision should execute penalty calculated in accordance with the principles of concurrent and legal system.
The principle of combined punishment for several crimes
The so-called punishment principle, is the basis for a committed several crimes and punishment rules. Its function is to determine how to implement concurrent punishment for several crimes. China's "criminal law" article69The provisions of article, in order to establish the limitative aggravation principle, the principle of compromise to absorb the principle and the addition principle as supplement. Its specific contents: several principal declaration for the punishment is in prison, detention, control, adopt the principle of limitative aggravation punishment. The limitative aggravation rule: several principal declaration are in prison, should be in the sum of the sentence below, above the maximum number of punishment, the discretion of execution of the sentence, but can not exceed the maximum20Years. Several principal declaration was criminal detention, should be in the sum of the sentence below, above the maximum number of punishment, the discretion of execution of the sentence, but can not exceed the maximum1Years. Several principal declaration are controlled, should be in the sum of the sentence below, above the maximum number of punishment, the discretion of execution of the sentence, but can not exceed the maximum3Years.
A number of penalty judgment in one or a plurality of the death penalty or life imprisonment punishment, the absorption principle, performance of a death or life imprisonment, no longer execute other penalty.
②  Among the crimes were sentenced to additional punishment, and punishment, the principle, the supplementary punishment shall still be executed.
The application of several crimes
According to the "criminal law" article69Article, article70Article, article71The provisions of article, specific rules of statutory conditions for different crimes can be divided into the following three types:
The before the judgment is pronounced a committed several crimes of punish the rule
"Criminal law" article69The provisions of article shows, concurrent punishment for several crimes in Chinese criminal law, which decides the basic rules, is before the judgment is pronounced a committed several crimes situation as the standard established. So, basically, before the judgment is pronounced a committed several crimes of punish the rule, the basic content and the basic rules of concurrent punishment for several crimes or completely consistent.
The penalty execution period found leaking crime punishment rules
According to the "criminal law" article70The provisions of article, before the punishment has been completely executed found leaking crime punishment rules, has the following characteristics:
First, must be in the judgment is pronounced later, before the punishment has been completely executed discovered leaks the crime, and the crime is the crime refers to drain before the judgment is pronounced, the implementation was sentenced to molecules and are not judgment.
Second, leakage for newly discovered crime, no matter how crime number, or with the former crime's nature is the same, all shall be made.
Third, should put before and after the two verdict sentenced to punishment, namely before sin sentenced to punishment and leaks the crime punishment imposed for the combined punishment for several crimes, in accordance with the relevant principles, decision execution.
Fourth, in calculating the sentence, shall have to be executed in the new term, calculated decision execution. "Before and after".
The penalty of having committed a crime during the execution of the punishment rule
According to the "criminal law" article71The provisions of article, period and new crime punishment rules of penalty execution, has the following characteristics:
First, must be in the declaration after the execution of punishment, before the crime, sentenced molecules and make new.
Second, new molecules for the implementation of the crime, no matter how crime number, or with the former crime's nature is the same, all shall be made.
Third, shall not perform the former crime and the punishment of the punishment imposed for the latter crime, in accordance with the provisions of the criminal law of the corresponding principle, decision execution. The first was crime judgment execution of penalty has been executed in minus the penalty, and then not executed before the crime punishment and the punishment imposed for the latter crime punishment. "The first reduction and".
Features 15 hijacking aircraft.
Answer: hijacking, refers to the violence, coercion or other means of hijacking, acts of endangering public security. It has the following characteristics:
(1 ) the object of the crime is the flight safety of aircraft, the aircraft carrying passengers and major public and private property. The object of the crime, only aircraft in flight (mainly aircraft). The so-called "flight", refers to the aircraft finishing loading, the external doors are closed, open the door until any machine at any time to unload now. If the aircraft is landing, before over the aircraft and the persons and property carried the responsibility of the competent authorities, are considered to be "in flight".
(2The objective aspect of the crime) performance of the use of violence, coercion or other means, the hijacking. Violence mainly refers to the behavior person to make the aircraft to fly to the driver to place, and the implementation of assault, injury and other powerful blow to the crew or passengers. Stress refers to the violence, the threat of explosion for the crew will be implemented. The other method is taken to achieve the purpose of violence, coercion hijacked outside, such as the methods of anesthesia. The so-called aircraft hijacking, refers to the use of the method to control the aircraft intended to force it to change its course to the designated place, behavior. This crime is the behavior of crime, as long as the implementation of the hijacked behavior, whether or not to act the intended purpose, is this crime accomplished.
(3 ) the subject of the crime is general subject, can be both passengers, can also be set.
(4The subjective ) crime is intentional crime, its purpose is generally use the hijacked aircraft make yourself (or including associates) transfer to a country or area, not the illegal possession of the. For whatever motive, does not affect the establishment of this crime.
Features 16 accident crime.
Answer: the crime of traffic accident, is a violation of the traffic regulations, so the occurrence of major accidents, causing serious injury, death or causes heavy losses of public or private property act. It has the following characteristics:
A)The object of this crime is the transportation safety, i.e. in the transportation in the majority of people not specific health and major public and private property safety.
B)The objective aspect of this crime is violation of the traffic regulations, the occurrence of major accidents, causing serious injury, death or causes heavy losses of public or private property act. The traffic regulations, means and guarantee traffic safety laws and regulations, such as "the people's Republic of China Maritime Traffic Safety Law of the people's Republic of China", "river traffic safety management regulations" etc.. Violation of the traffic regulations is a leading cause of serious traffic accident, it is a necessary condition for the crime. Violate traffic regulations behavior varied, such as violation of operation rules, speeding, drunken driving, do not pay attention to avoidance etc.. The general is, can not be used as the. The so-called major accidents, mainly in the transport process, causing the vehicle, ship collision, overturned, destroyed or other accidents (such as car crash, rolled), causing serious injury, death or causes heavy losses of public and private property. No serious consequences, does not constitute a crime.
C)The subject of this crime is general subject. Can be a transportation worker, also can be the ordinary citizens, such as informal driver driving a car accident. But in practice, is mainly engaged in the transportation business personnel, such as automobiles, ships, the dispatcher, the pilot, pilot. The transportation department general administrative services managers, such as accountants, custodian, administrative personnel, procurement personnel, be forgetful of one's duties in the work, resulting in the loss of, can not constitute crime.
D)The subjective aspect of this crime is negligence, namely for the occurrence of major accidents, causing serious consequences due to negligence, for violation of the traffic regulations, are often commit a crime it knowingly.
17Characteristics. smuggling ordinary goods, crime.
Answer: the crime of smuggling common goods, articles, refers to the violation of the customs regulations, evade Customs supervision, illegal transportation, carrying, mailing the ordinary goods, in abroad (boundary) environment, the amount of tax evasion5Million behavior. Structure character of the crime:
A)The object of this crime is a national foreign trade management system and tariff collection system. Customs is the national economic door. To guarantee the implementation of the control system of foreign trade through the strict supervision of the customs, to safeguard the normal order of foreign trade, increase the tariff revenue, the development of the national economy, has great significance. To this end, China has formulated the "Customs Law", "import and export tariff management Ordinance" and other laws, and regulations. Crime and smuggling ordinary goods, articles, in order to reap huge profits, not only a large number of duty evasion, caused huge economic losses to the state, but also seriously hindered the development of China's national industry, great harm. Therefore, for this crime must be severely punished.
B)The objective aspect of this crime is violating the customs regulations, evade Customs supervision, illegal transportation, carrying, mailing the ordinary goods, in abroad (boundary) environment, the amount of tax evasion5Million behavior. Ordinary goods, articles, refers to drugs, weapons, ammunition, nuclear materials, counterfeit money, the State prohibits the export of cultural relics, precious animal and its products, gold, silver and other precious metals, rare plants and prohibited export products and obscene articles, the state allows the import and export of goods, articles, including production, life data. Ways and means of smuggling and other crimes of smuggling, the customs border, no land border, or through customs take the hiding, false, camouflage means the smuggled goods, articles into or out of china. According to the criminal law article153The provisions of the constitution, with a large amount of the duty evasion5Million yuan as the standard, the smuggling of untreated, by accumulative smuggling goods, the amount of tax evasion calculation.
C)The subject of crime is general subject, including individual and unit.
D)The subjective aspect of this crime is intentional, knowing that is to evade Customs supervision and intentionally, is to make profits for the purpose of. However, the necessary conditions are profiteering does not constitute the crime of.