Exceptions, the territorial jurisdiction of the criminal law of our country. (15 points)
Two, try to distinguish the emergency and the justifiable defense in the establishment of conditions on. (15 points)
Three, try the criminal law provisions of the punishment principle of abettor. (10 points)
Four, set up test conditions the recidivist. (15 points)
Five, the objective form of crime of insurance fraud. (15 points)
Six, the case analysis (15 points)
1 Zhao intention to rob with a deadly weapon in a late ten pm according to see route from the balcony into the private entrepreneurs turn to a home based on a discovery, after a not at home while his wife was in the shower, and then use the do not disturb. His wife open close family bedroom cabinet, took out 1000 escape yuan in cash and value more than 3 yuan jewelry. A few days later, when the captured Zhao stolen goods. In the discussion on how to convicted Zhao, have two different opinions between the judicial personnel. Some people think that, should the robbery to robbery household (according to the provisions of article 263rd of the criminal law of the statutory sentence of 10 years imprisonment, life imprisonment or death, and concurrently be sentenced to a fine or confiscation of property) of the preparatory crime shall be investigated for criminal responsibility of Zhao, others claim to Zhao writing tip by theft (according to the provisions of the 264th and the related judicial interpretation, the legal punishment of imprisonment less than 3 years, criminal detention or control, or be fined as).
Please answer why will have two different opinions, what are two kinds of views their reasons? Do you think the Zhao to conviction? (15 points)
   2 Cheng (born 1973 in Guangxi) during the 1993 working in Shenzhen with a smaller two-year-old Hainan girl Li mou. Two feelings rapid warming, and in 1994 began living together in March. During this period, Li grandpa died due to go home for the funeral, and subsequently stayed at home for half a year. In the meantime, Cheng and a little of his 5 year old Sichuan girl Zhang. In 1998 June, Li Mou back to Shenzhen Cheng Zhang found the relationship between the two, but still and Cheng moved in together. In 1999 before New Year's Eve, Li Mou home have the Spring Festival, before leaving with a convention next April Cheng to Hainan take her to Guangxi. However, in 2000 March with Cheng Zhang returned home as a couple live together. In August of the same year, Li Mou to Guangxi, when Zhang face to a trip to an idea. Cheng said: "I like you two, is impossible to get rid of any one person, just two are live. In the future who may leave leave, can't live without reluctantly. "Li and Zhang are not willing to give up, want to find opportunities to bid each other, then according to the process mean played a male and two female cohabitation. In 2000 September, Cheng to relatives and friends to send out wedding invitations, on 28 August, Cheng and two women held a wedding ceremony. Before lifting the involvement of three people this relationship until 2001 7 at the beginning of the public security organs. In the meantime, Li Zhang in the birth of a child.
Please answer to Cheng, Li, Zhang three behavior should be how to evaluate in criminal law. (15 points)
Reference answer
   Exceptions, the territorial jurisdiction of the criminal law of our country (15 points).
   [answer] territorial validity of criminal law is the basic principle of space in china. The provisions of the criminal law, where a crime in the territory of the people's Republic of China, except when otherwise stipulated by law, the law is applicable to. Generally, here defined as "the exception of the law has special provisions" of the situation are the following:
   (1) special provisions for the foreigners who enjoy diplomatic privileges and immunities. "The criminal responsibility of foreigners who enjoy diplomatic privileges and immunities, resolved through diplomatic channels." The so-called diplomatic privileges and immunities, refers to the international practice, a country to ensure a privilege and preferential treatment in the diplomatic representative agencies and their personnel normal country executive positions give. According to Chinese law, criminal responsibility of these people should be resolved through diplomatic channels.
   (2) special provisions made to Hongkong, the Macao special administrative region. Except in foreign and defence affairs unified jurisdiction by the Central People's government, the Hongkong special administrative region enjoys executive, legislative and independent judicial power, including the power of final adjudication, the legal system of Hongkong politics, economy, remain unchanged, the national laws, except the law annex has been listed several, not in force in the Hongkong special administrative region. "PRC Criminal Law" as the national law is not in Hongkong area implementation. Exceptions to the basic law of the Macao Special Administrative Region of the Macao Special Administrative Region and the basic law of Hongkong Special Administrative Region is consistent.
   (3) the special provisions of the national autonomous areas. The criminal law ninetieth stipulation: "not in national autonomous areas completely apply the stipulations of this law, by the autonomous region or province of the people's Congress according to the basic principle of the characteristics of the local nationalities in political, economic, cultural and the provisions of this law, formulate adaptive or supplementary provisions, please implement approved by the Standing Committee of National People's congress."
   (4) the provisions of criminal law after the implementation of special criminal law enacted by the legislature of the state. If appear between criminal law criminal law and separate code laws competition situation, according to the "special law is superior to common law" principle, do not apply to criminal law, and apply the special criminal law.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.
   Two, try to distinguish the emergency and the justifiable defense in the condition of (15 points).
   [answer] emergency, refers to the state, the public interest, the person himself or herself or others, property and other rights and interests from danger happening, no damage to the legitimate rights and interests of another smaller behavior. The justifiable defense, refers to the maintenance of state, the public interest, the person himself or herself or others, property and other rights from being infringed, adopt the measures to do harm to the unlawful infringer, suppression of unlawful acts against the.
   The emergency and the justifiable defense is the cause of excluding the crime, there are many same or similar. The main difference between the two is shown in the following aspects:
   (a) the dangerous source. Emergency source of risk more widely, not only is the perpetrator, but also is a force of nature or animal invasion, but only the dangerous source of justifiable defense is the perpetrator.
   (two) behavior of different objects. Necessity is the third implementation of the behavior of the legitimate rights and interests, and self-defense is only for illegal violate my implementation, not against innocent third party.
   (three) behavior in different conditions. Emergency can be in only "shall not implement the" case, if there are other ways to avoid danger, not emergency, and self-defense has no such requirement.
   (four) in different on the extent of damage. The justifiable defense and emergency hedge although will cause some damage, but the emergency caused by damage must be less than the protection of the legitimate rights and interests, and cause the justifiable defense for unlawful infringement damage equal to or greater than the allowed behaviors of unlawful infringement may cause damage.
   (five) on the behavior of the main requirements are not exactly the same. The emergency to avoid danger to oneself does not apply to duty, business person who is charged with specific responsibility, and justifiable defense, no such restrictions.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.
   Three, try the criminal law provisions of the punishment principle of abettor. (10 points)
   [answer] the so-called instigator, is deliberately inciting others to commit the crime person. Article twenty-ninth of the criminal law on the abettor prescribed the following three principles of punishment:
   (1) "who instigates others to commit a crime, shall be punished according to the role he plays in a joint crime". This is the crime of complicity to teach. If the abettor plays a principal role in a joint crime, the principal shall be punished; if the abettor plays a secondary role in a joint crime, as an accessory; abettor in individual cases, may also be coerced offender, such as stress and abetting the crime, then you should get the instigator in the coerced offender be punished.
   (2) "abetting under the age of 18 crime, shall be given a heavier punishment." This is because, choice under the age of 18 as the instigator object, not only shows the subjective malignant serious corrosion, and illustrate the instigation is large, serious harm to society, should be severely punished.
   (3) "if the instigated person does not commit the instigated crime, the instigator, may be given a lighter or mitigated punishment." Here "the instigated person does not commit the instigated crime" includes: the instigated person refused the instigator of abetting; the instigated person although receive instigation, but did not commit a crime; be instigated although receive instigation, but sin is not abetting crime, there is no overlap and two persons; be the instigator of abetting abetting crime is not produced by.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.
   Four, set up test conditions the recidivist. (15 points)
   [answer] recidivism, is sentenced to criminal punishment, the punishment has been completely executed or pardoned, from within the statutory time limit and make certain guilty offender. Recidivism is divided into general recidivism and special recidivism, which constitute the conditions are different, but the legal consequences.
   (a) general recidivism. General recidivism is a result of intentional crime was sentenced to the punishment, punishment is finished or pardon, within 5 years it should be sentenced penalty above intentional crime. Conditions for general recidivism:
   The 1 preceding crime and crime is intentional crime. Before and after the two crime is negligence or one is negligence, not constitute recidivism.
2 years ago was sentenced to prison after more than punishment, crime should be sentenced to the punishment. This is the kind of punishment conditions pose a recidivism. Among them, the so-called sentenced to prison penalty above, is refers to the people's court to the crime before the final
There is a penalty sentenced to punishment above; the so-called should be sentenced penalty above, is in accordance with the relevant provisions of the facts of the crime and the criminal law, shall be sentenced to a punishment sentence above, the provisions of the criminal law and not the crime committed in the provisions of the above sentence in prison.
   3 crime occurred after the time, be in before the penalty is executed or pardon after 5 years. According to this condition, if the former crime and crime occurred after the time interval in the 5 years after, does not constitute recidivism, but only to record the facts.
   As for paroled criminals, after the time interval before and after the crime should be calculated from the period of parole. If a criminal in the period of parole after 5 years of having committed a crime, recidivism. For was sentenced to probation of offenders on probation after expiration, crime, does not constitute recidivism.
   (two) special recidivist, is sentenced to punishment for committing the crime of endangering national security, in the punishment has been completely executed or at any time after the pardon, the criminals commit crimes of endangering national security. Conditions for establishment of special recidivist is:
   The 1 preceding crime and crime is the crime of endangering national security. If the crime before or after the crime is not the crime of endangering national security, it does not constitute a special recidivism.
   2 after the completion of penalty or pardoned crime. The crime was exempted from punishment, not to set up special recidivism. As for the type and severity of was sentenced to punishment and the crime shall be sentenced to punishment without restriction; the establishment of crime and crime between before and after interval time does not affect the special recidivist.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.
   Five, the objective form of crime of insurance fraud. (15 points)
   [answer] the crime of insurance fraud, is refers to the policy holder, the insured or the beneficiary for the purpose of insurance fraud, the fabricating insurance object, insurance accident the false or exaggerated insurance accident loss, make not the occurrence of an insured accident insurance accident or manufacturing methods, defrauds insurance money, the amount of big behavior.
   Objective manifestation of the crime of insurance fraud for insurance fraud, defrauding insurance gold, large amount of behavior. Specific performance for the following five situations: the insured fictional insurance object, insurance claim; the insurant, the insured or the or the beneficiary intentionally causes losses to the occurrence of an insured accident degree, defrauds insurance money; the insurant, the insured or the beneficiary fabricate non insurance accident, defrauds insurance money; the insured, the insured intentionally causing the loss of property insurance accident, defrauds insurance money; the insured, the beneficiary intentionally causes the death of the insured, disability or illness, defrauds insurance money. The above five situations must be between the behavior and the insurer of insurance contract relationship already exists for the premise, and defrauds insurance money must be larger, to constitute a crime.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.
   Six, the case analysis (15 points)
   Zhao in a late ten pm in advance about the route from the balcony into the private entrepreneurs turn to a home with lethal weapon with intent to rob based, people found a room not at home and his wife was in the bath, and then use the do not disturb. His wife open close family bedroom cabinet, took out 1000 yuan in cash and 3000 yuan worth of jewelry after fleeing. A few days later, when the captured Zhao stolen goods. In the discussion on how to convicted Zhao, have two different opinions between the judicial personnel: some people think that, should the robbery in the household robbery, (according to the provisions of article 263rd of the criminal law of the statutory sentence of 10 years imprisonment, life imprisonment or death, and concurrently be sentenced to a fine or confiscation of property) prepared to commit a criminal responsibility shall be investigated for Zhao, others claim to Zhao should be theft (according to the provisions of article 264th of the criminal law and relevant judicial interpretations of the statutory sentence of imprisonment less than 3 years, criminal detention or control, or be fined as).
   Please answer why will have two different opinions, two different views of their reasons and you think should be convicted zhao.
   [answer]
   The 1 has two different views of the reason is that the behavior has changed in nature, in fact both robbery crime preparatory behavior, behavior and accomplishment of the crime of theft, and the huge gap between theft and robbery crime in legal punishment is partly caused by the debate.
   Preparation for a crime that should be the reason for the 2 robbery is: according to the criminal law, criminal preparation is to crime in order to prepare tools, manufacturing conditions on the behavior of. In this case, (1) actor had the intention to rob, (2) prepared beforehand good route behavior objectively; and prepare to weapon as robbery means. In full compliance with the robbery crime of preparatory crime.
   That should be the reason lies in: theft accomplished larceny refers to the illegal possession for the purpose of secret theft, large amount of public or private property, or for many times to steal the behavior of public and private property. The essence of the behavior in secret. In this case, (1) the subjective illegal possession of purpose, and (2) in the objective used not to disturb the methods implementing the wife steal others property behavior, behavior has a secret, and the result of crime. From the two aspect, the behavior should be accomplished larceny.
   3 I think, Zhao's behavior should be accomplished larceny. Reason: Zhao's behavior belongs to a form of absorbable offense of robbery, which belongs to the preparation for a crime, theft crime accomplished offense belongs to the. Accomplished crime belong to severe behavior, preparation for a crime belongs to the mild behavior, according to the principle of the absorbable offense behavior of mild severe absorption behavior, robbery preparation is absorbed by the accomplished larceny, ultimately should be accomplished larceny.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.
   Seven, the case analysis (15 points)
   Cheng (born 1973 in Guangxi) during the 1993 working in Shenzhen to meet his small two-year-old than the Hainan girl Li mou. Two feelings rapid warming, and in 1994 began living together in March. At the beginning of 1998, Li grandpa died due to go home for the funeral, and thereafter at home for half a year. In the meantime, Cheng and a little of his 5 year old Sichuan girl Zhang. In 1998 June, Li Mou back to Shenzhen after the discovery of Cheng Zhang between two people, but still with a live together. In 1999 before New Year's Eve, Li Mou home have the Spring Festival, before leaving with a convention next April Cheng to Hainan take her to Guangxi. However, in 2000 March with Cheng Zhang back to home live as husband and wife. In August of the same year, Li Mou to Guangxi, when Zhang face crying to a trip to an idea. Cheng said: "I like you two, I should get rid of any one person is impossible, just two people live. In the future who live lived lived, not also not force." Li Zhang two average per capita are not willing to give up, want to find opportunities to bid each other, then according to the process mean played a male and two female cohabitation. In 2000 September, Cheng to relatives and friends to send out wedding invitations, on 28 August, Cheng and two women held a wedding ceremony. Before lifting the involvement of three people this relationship until 2001 7 at the beginning of the public security organs. In the meantime, Li Zhang in the birth of a child.
Please answer to Cheng, Li, Zhang three behavior should be how to evaluate in criminal law.
   [answer]1. Cheng, Li, Zhang three in love during 2000 August behavior; belongs to the moral issues, in the law does not belong to illegal behavior, it does not constitute a crime, criminal law.
   From 2000 August 2 li rushed to the Guangxi, three people lived a man and two women, cohabitation, this behavior belongs to administrative violations of public order management. From the criminal law point of view, because of the intervention of the criminal law on the social life of the last to a certain extent, namely the harm only in the civil law and administrative law is still not enough to adapt and behavior, criminal law of dielectric talent is justified. Therefore, three cohabitation should belong to the illegal action of public security administration.
3.2000 years later in September, three people acts constitute the crime of bigamy. Although the marriage law perspective, no longer recognize and protect the fact marriage, but if there are in fact the relationship of marriage, the marriage can be treated as bigamy in marriage, namely to bigamy crime of bigamy fact. Accordingly, in this case, in 2000 September, Cheng and two women publicly held a wedding ceremony, and in fact have couples cohabiting women, and each had a son. From these facts, Cheng acts constitute a de facto marriage coincidence, should decide the crime of bigamy is. While the two women's behavior from the subjective point of view, is knowing each other is a de facto spouse, and marriage, therefore, should be the crime of bigamy.
   [reference] Qi Wenyuan editor of "criminal law", Law Press, 1999 edition.