The criminal case No. 772nd published guidance supreme law, "" criminal justice reference total eighty-sixth sets. Data from the network, to defend you

Wang Yu smuggling precious animal products -- "criminal law amendment (eight)" applicable criminal law after the implementation of the second paragraph sixty-third

One, the basic facts of the case

   Shenzhen people's Procuratorate to Wang Yufan smuggling precious animal products of sin, the prosecution to the court.

   Wang Yu to the prosecution organ charges no objection, but is based on the following reasons for the lighter punishment: the ivory is legally purchased on the market in Nigeria, used to own collection and decorate the house; when the clearance of no intentionally concealed carry Ivory fact; the ivory crown is blank, two the bracelet can not use, there are still a few people give gifts, not all regarded as precious animal products; the first offenders, casual, and hasSurrender oneselfThe plot.

   After the court open court found: April 9, 2011, Wang Yujing Shenzhen Huanggang immigration, customs officers from carrying backpack found in suspected Ivory crown 4 and other suspected ivory products group, Wang Yu not to declare to the customs. After identification, the above items for natural Asian elephant or Africa elephant ivory, a total weight of 8100 grams, the value of 337502.7 yuan.

   The court thinks, Wang Yu acts in violation of customs regulations, evade Customs supervision, smuggling National prohibition of precious animal products import and export, which constitutes the crime of smuggling rare animal products. The accusation was founded. Wang Yu smuggling precious animal product value is as high as 337502.7 yuan, which belongs to the crime of smuggling rare animal products in the circumstances are especially serious, he shall be sentenced to more than ten years of fixed-term imprisonment or life imprisonment in accordance with law. But considering the ivory is Wang Yu is legal in Nigeria purchase, the main purpose is a personal collection, not for profit, according to "the Supreme People's court, the Supreme People's Procuratorate, the General Administration of customs about the handling of criminal cases of smuggling law applicable to a number of opinions" provisions of article seventh, the Wang Yu sentenced to five years in prison punishment. Wang Yu was seized on the spot in the smuggling process, in accordance with the law, do not constitute a surrender, so its about plot excuse, refuse to accept. In accordance with the "PRC Criminal Law" the 151st paragraph second, sixty-fourth as well as the "Supreme People's Court on Several Issues concerning the specific application of law in the trial of criminal cases of smuggling to explain" the fourth regulation, Shenzhen City Intermediate People's court ruling as follows:

   Wang Yufan smuggling precious animal products of sin, sentenced to five years in prison, and fined fifty thousand yuan; seize smuggled goods confiscated, turned over to the state treasury.

   After the verdicts, Wang Yu refuses to accept, appeal.

   The court trial think, the appellant to violate the customs laws and regulations, evade Customs supervision, carrying the State prohibits the precious animal products import and export entry, which constitutes the crime of smuggling rare animal products, and should be identified if the circumstances are especially serious. In view of the fact that Wang Yu carrying ivory products in overseas legally purchased, and can not prove its profit objective, subjective malignant small, not harmful to society, in accordance with the law to the sentence below the legally prescribed punishment. The trial court finds that the facts are clear, the evidence is sufficient, accurate, conviction, but for Wang Yu's hanging. In accordance with the "Criminal Procedure Law" (1996) 189th second, "criminal law" the second paragraph of article 151st, sixty-third paragraph second, sixty-fourth as well as the "Supreme Court on Several Issues concerning the specific application of law in the trial of criminal cases of smuggling to explain" the fourth regulation, Guangdong Provincial higher people's court in the smuggling of precious animal products of sin to appeal Wang Yu to three years in prison, and fined fifty thousand yuan; and according to the "Supreme Court on the implementation of the criminal procedure law '' interpretation of several issues" 268th article second paragraph, shall be submitted to the Supreme Court for approval.

   The Supreme Court review by the thought, Wang Yu carrying prohibited by the state from precious animal products import and export entry constitutes crime of smuggling precious animal products, shall be punished in accordance with the law. In view of the fact that Wang Yu carrying ivory products in overseas legally purchased, can not prove its profit objective, subjective malignant small, according to the specific facts of the crime, the plot and the harm to the society, the sentence below the legally prescribed punishment. In accordance with the "PRC Criminal Law" the sixty-third paragraph second and "the Supreme People's Court on the implementation of 'of the people's Republic of China Criminal Procedure Law' interpretation of several issues" the provisions of article 270th, the Supreme People's court approved by Guangdong Provincial Higher People's Court (2011) Guangdong high punishment two final word number 271st on the defendant Wang Yu in the smuggling of precious animal products below the legal punishment in the crime and sentenced to three years, criminal judgment and punishment gold fifty thousand yuan.

    Two, the main problem

   1 the trial court where the defendant has no statutory mitigating circumstances of the case, according to the special circumstances of the case of the defendant is sentenced to a punishment below the legally prescribed punishment, reported to the nuclear program is not applicable provisions of the second paragraph of article sixty-third of the criminal law, the court of second instance how to deal with?

   The 2 amendment to the criminal law (eight) after the implementation of nuclear program, reported the application of criminal law provisions of the second paragraph of the sixty-third defendants sentenced to a punishment below the legally prescribed punishment, whether by the provisions in the first paragraph of article sixty-third of the criminal law to reduce amplitude limit?

    Three, the reason of judgment

   (a) the court of first instance according to the special circumstances of the case of the defendant is sentenced to a punishment below the legally prescribed punishment, but not applicable provisions of the second paragraph of article sixty-third of the criminal law of procedure, the court of second instance shall affect the fair trial and make. For not affect the fair trial, can according to the correction procedure, step by step to report to the approval of the Supreme People's court

   Article sixty-third of the criminal law provisions in the second paragraph: "criminals, though not with the provisions of this Law of mitigating circumstances, but according to the special circumstances of the case, with the approval of the Supreme People's court, also may be sentenced to a punishment below the legally prescribed punishment." According to the regulations, the provisions of the criminal law does not have the statutory mitigating circumstances defendants, according to the special circumstances of the case, if it is necessary to the defendant is sentenced to a punishment below the legally prescribed punishment, must be reported in the second paragraph sixty-third of the criminal law approved by the Supreme People's court.

   In this case, the defendant Wang Yu smuggling precious animal product's behavior belongs to crime of smuggling rare animal products, the circumstances are especially serious, according to the provisions of section second of the criminal law 151st, he shall be sentenced to more than ten years of fixed-term imprisonment or life imprisonment. In Wang Yu no statutory mitigating circumstances of the case, the court of first instance to consider the ivory Wang Yu is legal in Nigeria purchase, the main purpose is a personal collection, rather than the special case of profit, decided to Wang Yu below the legally prescribed punishment sentenced to five years in prison. However, according to the provisions in the second paragraph of the criminal law sixty-third, the decision must be approved by the Supreme People's court, the court of first instance is not applicable to this newspaper nuclear program, shall be deemed as illegal procedure.

   According to the provisions of the criminal procedure law in 1996 191st, for instance the illegal procedure, which may affect the fair trial, the court of second instance shall rescind the original judgment, remanded by the people's court re trial. If the court of second instance though that court of first instance procedure illegal, but that just a trial has not affected, also can not apply 191st criminal law article fifth "other violating the legal procedure, the provisions may affect the fair trial", not to rescind the original judgment, not back to the people's court for retrial. Below the legally prescribed punishment punishment cases, if the court of second instance only identified trial court does not report procedures applicable to the provisions of the second paragraph of article sixty-third of the criminal law, and agreed to the court of first instance is below the legal punishment mitigated punishment regulations, in order to ensure the efficiency of the proceedings, in accordance with the provisions of the criminal procedure law in 1996 189th to second, the court of second instance can direct judgment, and submitted to the Supreme People's court for approval. But if the trial court that the trial court's illegal trial procedures and the impact of the excluded cases fair trial.

   In this case, the second instance court except that the first instance procedure illegal, is that a verdict on the defendant sentencing overweight, so the sentencing of the defendant shall be amended according to the law, but also to the procedure of first instance illegal corrected, and shall be submitted to the approval of the Supreme People's court. The court of second instance on a verdict sentencing changed at the same time, in accordance with the law to fulfill the approval to be submitted to the Supreme People's court procedures, in order to ensure a fair trial, the first trial procedure defect, improve the efficiency of the litigation; on the contrary, if the court of second instance on grounds of procedural law, remanded, so will cause the court of first instance to trial, it will cause the waste of judicial resources, and increase the litigation burden to the defendant.

   (two) the criminal law amendment (eight) after the implementation, application of article sixty-third of the criminal law second of the defendant is sentenced to a punishment below the legally prescribed punishment, not specified in the first paragraph of article sixty-third of the criminal law to reduce amplitude limit

   The criminal law amendment (eight) before the implementation of the criminal law, the first paragraph of article sixty-third and no restrictions on mitigating the extent, therefore, the criminal punishment reduced, both applicable statutory mitigating circumstances, or application of article sixty-third of the criminal law second reported nuclear program, are not subject to statutory sentencing range limit. The criminal law amendment (eight) on article sixty-third of the criminal law. The first paragraph was amended, added "the provisions of this law, a plurality of sentencing provisions, shall be sentenced to a punishment" in a range of statutory sentencing sentencing range. Accordingly, the viewpoint thinks, this kind of special situation on the provisions of the second paragraph of article sixty-third of the criminal law of the mitigation of punishment is also has restricted meaning, namely the criminal law amendment (eight) after the implementation, according to the special circumstances of the case, reported to the approval of the supreme people's court sentenced to a punishment below the legal punishment in the case, the people's court can only be sentenced to a punishment in a range of statutory sentencing sentencing range. The reason is that the first paragraph of article sixty-third of the criminal law, but also on how to reduce the punishment, namely the criminals with the statutory mitigating circumstances, can only be punished in a range of statutory sentencing sentencing range. For there is no criminal statutory mitigating circumstances of article sixty-third of the criminal law section second below the legally prescribed punishment sentencing, should also be the same shall apply. If the penalty in the two range of the statutory sentencing sentencing range, may lead to excessive discretionary power of judges.

   We think, the criminal law amendment (eight) before the entry into force, the Supreme Court has approved some penalty in the two range of the statutory sentencing sentencing range of cases. The criminal law amendment (eight) fifth only modify the article sixty-third of the criminal law amendment to the first paragraph, the second paragraph of this article is not, is not clear second paragraph by paragraph 1 limit. In judicial practice, due to political, diplomatic, defense and other national interests, and in order to achieve the balance between crime and punishment in special cases (for example, Xu Ting case is a typical case, if not two grid penalty is obviously the heavy sentence), when necessary, in the two range of the statutory sentencing range of measurement of penalty punishment is necessary and rationality, but should be strictly controlled, not to extend. (Writing: the supreme court sentence two courtKangYingEdit: the supreme court sentence two courtMiao Youshui.