The blogger pressIn undergraduate education, attach importance to judicial examination, judicial examination and daily teaching organically is teaching ideas I have insisted that a few years. In order to facilitate the students to follow the teaching schedule exercise judicial exam, I since 2004, began to pay attention to the collection of criminal law judicial exam Zhenti, and makes analysis in detail, has been to the eighth edition, general provisions of criminal law and theory. And analysis of the word has reached 40 words. Practice has proved, it is popular with students, also has obtained the certain effect of teaching. In order to help more friends in the judicial examination in criminal law part to achieve better results, I decided to Zhenti resolution I sort of nearly ten years of continued to my blog, in order to provide dinner for you committed to the judicial examination of the netizen, netizen attention please. Also hope that the teaching and learning of the criminal law on the friends help, also welcome each netizen criticism.

The first part The criminal law

One, overview of criminal law

(a) overview of criminal legislation

1997Years3Months after the revision of criminal law, the Standing Committee of the National People's Congress promulgated several single criminal law and criminal law amendment? (2005Paper two chapter1Questions)

AAt a single criminal law and the four amendment  BAt a single criminal law and the five amendment

C. two a single criminal law and the four amendment  D. two a single criminal law and the five amendment

Analytical:The main test students on the amendment of criminal law concerned, a common sense belongs to the criminal law.1997After the revision of criminal law, China began to adopt the amendment and the special law of two criminal law amendment mode. End2011Years2Month, the Standing Committee of the NPC has passed the eight amendment to criminal law and a single criminal law, respectively:1999Years12Month25On the "criminal law amendment",2001Years8Month31On the "criminal law amendment" (two),2001Years12Month29On the "criminal law amendment" (three),2002Years12Month28On the "criminal law amendment" (four),2005Years2Month28On the "criminal law amendment" (five),2006Years6Month29On the "criminal law amendment" (six),2009Years2Month28On the "criminal law amendment (seven)",2011Years2Month25On the "criminal law amendment (eight)" (5Month1The date of promulgation), since this is the97Since the implementation of new criminal law of penal code to modify one of the largest, a total of50A, not only increase, modify the terms, also has abolished a clause, not only has the criminal law amendment, also has the general rules of the criminal law amendment, but, also once abolished the original criminal law13A crime death penalty in Chinese criminal law, the death penalty was reduced to55A. A single criminal law is:1998Years12Month29"On the decision regarding the punishment, purchase foreign exchange evasion and illegal trading in foreign exchange crime". Visible, as2005Years9On the judicial examination, the NPC Standing Committee has passed a special law and the five amendment to the criminal law, and so,BCorrect. The answer:B.

The amendment to criminal law and special law, is the criminal code complete revision must be reduced to fragments, in accordance with the "legislative law" article53Article2Paragraph: "part of the provisions of the law be amended or abolished, must be re released the legal text" new, here said the "new law" in the criminal law should be amended the penal code refers to the text, not only refers to the text the amendment. And.1982Years of the constitution to the present through the four amendment to the constitution amendment, although the first three amendment has not released the text constitution code complete, but,2004Years3Month14Through an amendment to the constitution, the Conference Secretariat has released the latest text constitution. Therefore, each time after the amendment of criminal law is passed, the legislature should timely regulatory clearance, re released a revised complete criminal law text. Unfortunately, even after so many changes, perhaps because of the penal code provisions too much reason, the supreme legislative authority and not timely legislation in this area clean, this is very should not appear in the country under the rule of law. Therefore, the legislature after the amendment, best can re released the penal code complete text.

The development of criminal law amendment is a better than making separate criminal law amendment to the criminal law, criminal law amendment is an important part of the penal code, the revised provisions of the penal code provisions automatically become independent source, it is not the criminal law, the judicial organ when referenced amendments, direct references to relevant provisions of the revised the criminal law can be, but also do not indicate what the content of the amendment. This,2007Years4Month11Day, the Supreme People's Court issued "about in the judgment, how to reference reply" criminal law amendment pointed out: "the people's court in the judgment, applicable provisions of the criminal law amendment, shall be directly cited provisions of criminal law, the revised as:" the people's Republic of China Criminal Law "articleXXThe provisions of the people's Republic of China or the "criminal law" articleXXArticleXRegulations. Of note, the highest legislature approved amendment to modify the criminal law is of great significance, is China's criminal legislation technology gradually mature performance. Because, when the legislature to repeal a criminal law, only through amendment way invalidated a law; and when the need to modify or supplement when, also can by amendment way (such as a one, two) to achieve, so, not only can maintain stability, the penal code the continuity and unity, but also can not change the provisions of the criminal law. For example, as long as not to re enact the penal code, the penal code article232It is always the provisions of the crime of intentional homicide, criminal law263It is always the provisions of robbery crime, it is not only beneficial to the judicial organs for criminal law, but also to the national study and abide by the law. Of course, the amendment to the criminal law technology also exists some deficiency, for example, has not stipulated charges, effective time is the date is appropriate, not published penal code in this paper, the complete correction etc., all these need further improve legislation legislature level.[1]

Needs to be pointed out is, because our country adopt dual track system in the criminal legislation, criminal law origin only criminal law and the special law, and not as many textbooks say that also includes the subsidiary criminal law. In our present criminal law, is not the true sense of the subsidiary criminal law,[2]As in other legal departments, the mere existence of"If the circumstances are serious, which constitutes a crime, shall be investigated for criminal responsibility according to law"In terms of the provisions, and unlike Germany, Japan and China Taiwan, Macao criminal law criminal law adopts the double track system, is attached to the regulation of other department law, namely" crime legal punishment, thus forming + "" economic law "or" administrative law ", the subsidiary criminal law may apply. The accessory criminal law and many of our criminal law textbook said do not have independent applicable significance, still need to find and combined with the specific provisions of the criminal code. Therefore, there is no real sense of the subsidiary criminal law of our country. With the statutory criminal (administrative offense) era, take the double track system of criminal law in our criminal legislation should be in the future, other department law provisions of the terms "affiliated real".[3]Hope that the students in the interest of knowledge at the same time, often can timely attention to the dynamic state of criminal legislation, to get some of the latest legislative information.

(two) and the application of the criminal law interpretation

1The interpretation of criminal law. A claim, which of the following statements are true? (2009In paper two chapter1Questions) 

　　AThe target of larceny"Public and private property"Account for"The possessions of others", belonging to the narrow interpretation

　　B"Criminal law". The 171st sale of counterfeit currency crimes"Sell"Account for"Buying and selling"Of course, to explain

　　CTo carry guns and other equipment other than individuals carrying equipment prohibited countries robbed, interpreted as the robbery conviction, belongs to expanding interpretation

　　D. the crime of credit card fraud"Credit"Account for"With the consumer payments, credit, transfer settlement, access cash and other electronic payment card all or partial functions", belonging to analogical interpretation

Analytical:When I explain the method of understanding. Narrow interpretation, amplified interpretation refers to within the text range, while the analogical interpretation is beyond the range of the text, in violation of the principle of legality, the distinction between interpretation and analogy to explain the expansion, is one of the major difficulties.

In this case, the A option, on the one hand, from the literal meaning of "public and private property," interpreted as "property of others" is indeed narrow interpretation (limit of aim). But from the view of the nature of the crime of theft, namely the change of possession, dominance relation, the re establishment of a new relationship, the criminal target of larceny must be "all the others (possession) property", so this interpretation belongs to the interpretation of course, because of all his (possession) property does not exist the problem of theft, can constitute embezzlement; on the other hand, the "private property" is interpreted as "property of others" may be expanded to explain, because "the property of others" can include three kinds: (1) own possession of property of others; (2) he who holds his property; (3) possession of others. The property of others. And this problem is related to the judge, violating the legal rights to judge the theft, what is the infringement of property ownership or possession, right? But no matter how, from the infringement of legal interest of larceny, this interpretation is a natural interpretation, and of course, interpretation and narrow interpretation is two kinds of different classification methods, the former is from the logic of things to explain, belonging to the substantive interpretation, and the latter is from the literal meaning of interpretation, belongs to a formal explanation for the same things, there are two different views is normal, in other words, in the interpretation of criminal law, for the same criminal law interpretation of the text, not only can say that it is a narrow interpretation, you can say that it is a natural interpretation, this there is no contradiction between the two. In the course of interpretation, can be a narrow interpretation, can also be interpreted,[4]So A is controversial.

The B option to expand the interpretation or analogical interpretation is controversial. Because the criminal law clearly stipulates the purchase, sale, transport of counterfeit money crimes, "sell" and "buy" is tied to the provisions of the "sale", should not be interpreted as "buying and selling", otherwise, is a species is explained, as criminal law has stipulated the crime of counterfeiting currency and currency forgery crime case, forged cannot include altered, forged or altered if interpreted to include a push is explained. However, in the "sale of counterfeit currency crimes" in the "sale" is often the first to buy after the sale, this explanation seems to be an expanding interpretation.

The C option is article 267th of the criminal law on the crime of robbery of paragraph second of the fiction of the provisions of the "weapon" understanding,[5]This interpretation is expanded to explain or natural interpretation, but also controversial. Because the "weapon" including guns, knives and other properties of the weapon (originally weapon), including knives, bricks, beer bottles use weapon (originally not weapon, but once they are used for crime becomes a weapon), therefore, this interpretation is an expansion of Zhang Jieshi. But there are also people who think it is a kind of explanation, that "the State prohibits individuals carrying the instrument" is a weapon, and those countries do not prohibit individuals carrying but lethal to personal equipment and weapons, this interpretation is the weapon Ying Youzhi Yi, so a natural interpretation.

The D option is the NPC Standing Committee on the "credit card" to make legislative interpretation, is the real life of those who do not have overdraft function debit card account for credit card overdraft function, is a kind of expansion explanation,[6]As Chen Xingliang and some other scholars said, in the criminal law enacted in 1997 when China's financial law (1996 promulgated the "credit card business management approach") for credit card understanding refers to "all the electronic payment card", from the interpretation of history view, the explanation is appropriate. But the 1999 amendments to the "bank card business management approach" will be divided into bank card credit card and debit card, credit card is not "refers to all the electronic payment card", the provisions of the criminal law should be adapted to the changes of financial law, there is no change in the current financial management regulations under the condition, the legislative interpretation of the Standing Committee of the NPC there is "the analogy to explain" too. Therefore, strictly speaking, all the options that are problematic. The Ministry of justice of the reference answer is C.

2. which of the following statements is true? (2006In paper two chapter20Questions)

　　AThe coercive indecency women sin in"Woman"Interpreted as including men, belonging to the expanding interpretation

　　BIn the crime of intentional homicide"People"Account for"The spirit of normal people"Should be banned, belongs to the analogical interpretation

　　CIn the crime of counterfeiting currency"Forge"Interpreted to include altered currency, on which belongs to law allows interpretation

DThe stealing, spying, buying, illegally providing state secrets, information in the crime"Intelligence"Account for"The relationship between national security and interests, has not publicly or not should be public matters in accordance with the relevant provisions", belonging to the narrow interpretation

Analytical:It mainly examines the relationship between the principle of legality and the interpretation of criminal law. Among them, expand the interpretation of the so-called refers to the literal meaning expansion of criminal law, the real meanings of the criminal law; the analogy interpretation refers to the constitutive requirements of specific facts and the law in judgment are similar, the legal effect of the latter is applicable to the former, in particular, the analogy interpretation is in no written rules of interpretation, which stands on the similarity among facts, rather than laws. While crime in law on not only the exclusion of the defendant is not conducive to the explanation, no reasonable explanation also rejected all against the democratic and national forecast possibility, including unreasonable expanding interpretation and restrictive interpretation.[7]Methods of criminal law interpretation should not only follow the logical principle, must follow the principle of Arts and sciences.

AItem in the crime of compulsory indecency women"Woman"Interpreted as including men, does not belong to the expanding interpretation, but an analogy to explain, it has violated the most basic principles of Arts and Sciences, beyond the national basic "prediction", so wrong.

BItem of intentional homicide of "person" as "mentally normal person", do not belong to the analogical interpretation should be banned, but shall be prohibited, unreasonable restrictions (narrow) explained, because that kind of explanation of life interests can not effectively protect those "insane", violated the the principle of legality, damage the National prediction possibility, do not accord with the true meaning of the criminal law.

CItem of counterfeit currency in the "fake" interpreted to include altered currency, on which belongs to law prohibits explanation. Because the monetary crime, lawmakers have defined "crime of altering currency", which shows that forged counterfeiting currency crime has already ruled out "altered in". Then, in the other does not require altering the crime, can be "fake" expand the interpretation of "altered"? This is a problem worthy of study. From the criminal law point of view, some only the provisions of forgery, and does not require altering behavior, for example, the criminal law article177Paragraph (four) only provides counterfeit credit card behavior, and does not require altering credit card behavior, but the combination of criminal law177"The provisions of any of the following circumstances, forged, altered financial tickets", because altering behavior itself is a violation of national financial management order, with the same legal interest infringement and counterfeit credit card behavior, can be interpreted as the forgery expansion includes variable. But in other regulations alone forged behavior, legal provisions shall not alter behavior whether can also do it in the circles of criminal law interpretation, there is a big controversy.

DIs true. Because in daily life, the information content can be referred to as "intelligence", many units, such as hospitals have "information science", therefore, if not "intelligence" limited explanation, may expand the scope of criminal penalties, does not conform to the provisions of "stealing, spying, overseas acquisitions, the crime of illegally providing state secrets, intelligence" normative purpose -- to protect national security law. The answer:D.

So, how to distinguish the extension limit interpretation and analogical interpretation? The fundamental difference between the two lies in the interpretation is beyond the possibility of predicting the national? In this regard, Professor Zhang Mingkai pointed out that, theoretically could cite many: first, from the form, expand the interpretation of the conclusions, not beyond the words of criminal law may have the meaning of the interpretation of criminal law, but within the meaning of "range"; the analogy to explain the conclusions, beyond the language may have meaning in addition, explained the meaning of "criminal law.". Secondly, from the emphasis on say, expanding interpretation to criminal law itself, is still the interpretation of normative logic; analogical interpretation focuses on criminal law besides the fact, is more of the facts. Third, expand the explanation says, from the relationship with lawmakers meaning, is to make the legislators means clear; the analogy to explain, is outside the legislators means that the explanation of the principle of setting their own. Fourthly, from the logical method, expanding interpretation is a concept expansion to define the criminal law, which should be punished behavior included in this concept; analogical interpretation is to recognize an object behavior is not punishment, but with similar behavior the behavior and criminal law has the same harm on the grounds, as the object of punishment. Fifthly, from the essence, expand the explanation is not beyond the scope of citizens to predict the possibility; analogical interpretation is beyond the scope of citizens to predict the possibility of. Even so, limit analogical interpretation and expanding interpretation is difficult. For example, "prostitution" whether to include same-sex sexual behavior, paid "cohabitation" whether to include long-term adultery or cause serious consequences of adultery, "property" whether to include the property interests, questions.[8]The distinction between the two limits and at the same time, also must pay attention to the following points:

First, some explanation is the analogy to explain which violates the principle of legality, in considering the terms may have meaning at the same time, must also consider the necessity of punishment. The necessity of punishment is more big, the explanation for the crime more likely.

Second, through the acceptance of the general people to determine whether it would violate the possibility of national forecast, and then judge whether the analogy to explain some explanation and violates the principle of legality, but also to consider the different types of crime. For example, for the criminal law crime of natural possibility to expand the interpretation of the greater, and for statutory crime criminal law explanation should be strictly.

Third, some explanation is the analogy to explain, in considering the criminal terms might have on the provisions of the meaning at the same time, but also consider the relationship, the usage and the correlation law specifically, when the interpretation and criminal law the relevant provisions of the criminal law spirit content and overall coordination, should not be regarded as the analogy to explain. When expanding interpretation and the relevant provisions of the criminal law conflict, and conflict, it is easy to form the analogical interpretation.

Fourth, some explanation is the analogy to explain, in consideration of the existing criminal law language meaning at the same time, but also consider the development trend of criminal law language, specifically, when a certain interpretation conclusion is accord with the development and change of social life in fact, so it accords with the development trend of criminal law language meaning, should not be considered the analogy to explain. Because the meaning of the term is not fixed, but changes with the social life of reality.

Fifth, some explanation is expanding interpretation and analogical interpretation, should be judged according to the criminal law and the terms of their, and not according to the foreign criminal terms conclude.

From the above discussion can see, some explanation is the analogy to explain or expanding interpretation, and is not a pure language meaning problem. In other words, some explanation is prohibited by the principle of legality, to weigh the provisions of the criminal law, the punishment of acts to necessity, possibility of national forecast, the provisions of the criminal law coordination, interpretation and language the core meaning of the distance, the words of criminal law development trend etc. conclusion. In many cases, not even the language problems, but how to consider the law the purpose and nature of behavior, how to balance the protection function and the safeguard function problem. The same type of behavior, not only because of the necessity of punishment may be small, but not be interpreted as crime, may also be because of the necessity of punishment, which is interpreted as a crime. So, the analogy to explain the fixed boundary and expanding interpretation is not absolute, only relative criterion.[9]But no matter how,Literal interpretation is the first to consider, first using semantic interpretation in the literal interpretation, andSemantic interpretation should follow the principle of discourse, the interpreter must shuttle from the criminal law text between the part and the whole, reach the legal concept, legal norms and legal spirit is accurate, complete understanding of pragmatic interpretation of criminal law; is the determination of the meaning of the text in the specific context, the interpreter should make discourse between cognitive schemata and criminal law text, legal norms and case facts, verdict and public expectations outside circulation.[10]Because the basic semantic of the criminal law defined the range of interpretation, on circulating through the semantic interpretation in the interpretation of the text, word, word, sentence, paragraph one from bottom to top, from the top to the bottom of the loop, a lot of ambiguity will be out of the context, criminal law, legal text the text of the linguistic context and do the first limitation on semantic.[11]

3. which of the following statements is true? (2006In paper two chapter60Questions)

　　AA b value2Million yuan of the ring into the sea, because the ring itself is not damaged, a behavior does not constitute the crime of intentional destruction of property

　　BA common second coming, worried about her handbag was B away, took hold of her handbag. B sees a clutching handbag, valuable goods suspect package, with a pass, to push away a handbag. Because B does not take people unprepared to seize property, so does not constitute the crime of seizing

　　CA voidICAutomatic teller machine test card is inserted into the bank, happened to ATMs display can withdraw cash, then take out5000Element. A willICCard fraud as a debit card in this case has played a major role, thus constituting a crime of fraud

DA car repair factory workers, found himself will have to overhaul a bus as an enemy B driving, the repair damaged the brake device, then the delivery. B driving the car, due to brake failure, causing collided with another vehicle, killing three people, one person was severely injured. As a not for being used in the traffic tools to implement the means of destruction, so does not constitute the crime of destruction of means of transport

Resolved: this question mainly examines the intentional destruction of property crimes, robbery, fraud and the destruction of the judicial determination of the crime of traffic tools.AIn the study, proposition personnel adhere to the "utility violation" (Japan says), damage to the crime of intentional destruction of property damage is not limited to property in physical meaning, also includes property holders lost all kinds of behavior, the utility or disparage wealth value therefore, a behavior although from the physical point of view, no damaged ring, but still the holder or owner of lost property of rings. For example, open pond, let the fish swim into the sea, to open the cage, let the bird fly back to nature, the mouse droppings in their food, tableware and so on to pee, can be regarded as the crime of intentional destruction of property. Because in the opinion of Professor Zhang Mingkai, in the interpretation of criminal law, we should according to the facts of life, according to the nature of things, the law to make different (but with the nature of things), so as to achieve the most reasonable explanation.[12]But Professor Chen Xingliang, Dr. Deng Zibin insists "tangible violation" (Germany said), in their view, the crime of intentional destruction of property in the "destruction" should be a physical damage, if not to take damage a tangible force, even if the loss of their overall utility, also do not belong to "destroy". Because the intentional destruction of property in the destruction not only pay attention to the loss of property utility, but stress causes property utility loss behavior.[13]As can be seen, the former is a substantive interpretation, is the value of the results, the latter is an interpretation of form, value is the behavior. Therefore, the "destroy" interpretation of the word between the two factions reflected the substantive theory (the criminal theory of substance) and interpretation on form (form of crime) dispute, in the judgment of illegality embodies the opposite results no value and conduct without value. In my opinion, Zhang Mingkai's explanation on the logical interpretation, Professor Chen Xingliang's explanation of emphasis on arts and interpretation. But in criminal law interpretation, literal interpretation should be a priority, explained only in the arts and unable to obtain the reasonable interpretation conclusion case, can take the logical explanation.BIn the study, the crime of forcible seizure, Professor Zhang Mingkai has advocated, as long as the means of behavior is the use of violence, whether can form, while people unprepared, not to snatch the elements of the crime.[14]

In this case, B take is still "flagrant robbery" approach, rather than a robbery or theft, therefore, constitutes a crime.CIn the study, as mentioned before, the machine is not deceived, so, when the perpetrator nail holdingICThe ATM card is inserted into the bank to withdraw money, constitute the crime of theft, but if use invalid credit card to the bank to get money, will constitute the crime of credit card fraud.DIn the study, the object of the crime of sabotaging means of transportation must be "in use" means of transport, to endanger public security, but do mechanical dogmatic understanding of "not in use", it includes not only is operating in the transportation, also contains the repaired has been delivered and is ready to use state therefore, a behavior, still constitute the crime of destruction of means of transport. The answer:ABCD.

4At the legislative interpretation is made by the legislative explanation, since the legislature in making laws can be specified"Carrying weapons snatch"The crime of robbery, so, the legislative interpretation can also be specified"Lethal theft, the crime of robbery". Of course, the legislative interpretation is to explain, so, the legislative interpretation shall not carry out the analogy to explain. The judicial interpretation has the force of law, the judicial and legislative interpretations of conflicts, should apply the new explanation is better than the old principle of explanation. The however, the judicial interpretation of the effectiveness than the validity, the legislative interpretation so, legislative interpretation can be expanded interpretation, the judicial interpretation not expanding interpretation. The four sentence is wrong, which of the following statements are true? (2008In paper two chapter20Questions)

　　AAt the sentence correctly, other errorBAt the right, the other errors

CAt the third sentence correctly, other errorDArticle 4 sentence correctly, other error

Analysis: the first sentence and the mainly inspects the legislature can do analogical interpretation. The principle of legality is not only a judicial principle, is also a legislative principle, and the principle of legality is not conducive to the analogy to explain the defendant and everything beyond national forecast possibility explanation, therefore, the legislature in the interpretation of the law should also follow the principle of legality of criminal law, as long as no such provisions, legislation authorities have not made such an analogy to explain. The legal effect of the sentence mainly inspects the legislative interpretation and judicial interpretation, legislative interpretation is made of the Standing Committee of National People's Congress, the judicial interpretation is made "two high", the NPC Standing Committee legal status of higher than the "two high", therefore, the legal validity of legislative interpretation are higher than the judicial interpretation, when the conflict happens in two the priority for the legislative interpretation, natural to. The first sentence mainly inspects the "two high" can do to expand the interpretation of criminal law. Because of the principle of legality is on prohibition against the accused explained, also prohibited beyond national forecast all unreasonable explanation possibility, as long as the legislature and the "two high" expanding interpretation does not exceed the possibility of national forecast, not beyond the possible meaning literally all provisions of criminal law, is allowed by law. The answer:B.

5According to the "provisions of the criminal law" in article 111st, for overseas institutions, organizations, personnel illegally providing state secrets or intelligence, constitute a crime. The judicial interpretation of the"Intelligence"Account for"The relationship between national security and interests, has not publicly or not should be public matters in accordance with the relevant provisions". This explanation is following what explanation? (2008Years of deferred examination papers two1Questions)

ACorrect interpretationBOf course, explainCAgainst interpretationDNarrowing the interpretation

Analytical:It mainly inspects the narrow (limit) explanations. Narrow interpretation of the so-called, is refers to the criminal law provisions of the literal meaning than the real meaning of criminal law usually are wider and wider, in order to limit the scope of criminal penalty, the literal meaning of criminal law to make certain restrictions, the true meaning of the criminal law. In daily life, the information content can be referred to as "intelligence", many units, such as hospitals have "information science", therefore, if not "intelligence" limited explanation, may expand the scope of criminal penalties, does not conform to the provisions of "stealing, spying, overseas acquisitions, the crime of illegally providing state secrets, intelligence" normative purpose -- to protect national security law. Therefore, the "intelligence" is interpreted as "national security and interests, has not publicly or not should be public matters" in accordance with the relevant provisions of the "intelligence" literally meaning limit. Of course, due to the crime punishment legal principle basic spirit is the guarantee of human rights and civil liberties, therefore, not all restrictive interpretation are allowed and reasonable, to reduce any explanation may violate the criminal law protection of legal interests purpose, may also violate the principle of legality. As for the specific meaning other interpretation methods, can see Zhang Mingkai textbook of criminal law.[15]The answer:D.

6The following statements is not true: (2004In paper two chapter86Questions):

　　AThe criminal law article266Maximum statutory penalty provisions of the crime of fraud is life imprisonment, and the198Maximum statutory penalty provisions of the crime of insurance fraud is15Years in prison. In order to keep the criminal law coordination and implementation of the principle of suiting punishment, especially huge amount of insurance fraud, fraud should be punished

　　BAccording to the criminal law358The provisions of article, "rape forced prostitution" the establishment of forced prostitution sin, not a combined punishment for several crimes. Full14With the age of16Years of age, together with others, the rape of women after the forced prostitution, and he shall not bear criminal responsibility; because the criminal law article17No provision has been full of14With the age of16Old people should bear the criminal responsibility of forced prostitution sin

　　CThe criminal law article382An express requirement of ordinary citizens and the State functionaries hook together with corruption, by the accomplice, therefore, ordinary citizens can constitute the crime of corruption and the national staff of accomplice in criminal law385No similar provision for the crime of accepting bribes, therefore, ordinary citizens may not constitute the accomplice of bribery of national staff

　　DThe criminal law article399Article4Paragraph, "judicial personnel accepting bribes" favoritism and other behavior, in accordance with the provisions of punishment heavier punishment. However, the judicial staff bribery and favoritism and other behavior, it should be combined punishment for several crimes

Analytical:Imagine interpretation and concurrence, concurrence of such issues as the main study the criminal.

AOption, applicable mainly examines the concurrence of articles of law, overlap of articles of law between the existence of fraud and the crime of insurance fraud, in accordance with the special law is superior to common law principles, should be applied to the special law, first identified as the crime of insurance fraud. Even if the special law relatively light punishment, the common law of punishment is relatively heavy, also not in accordance with the law is superior to the light of the principle of the law of punishment, in accordance with the crime of fraud, this is because of the fraud, the criminal law stipulated explicitly in the specific provisions of this law has special provisions, the punishment in accordance with the special provisions, this is not contrary to principle back, may apply special provisions may lead to the penalty is not balanced, but it is the defect of legislation, need to be modified and coordination through the legislative way, this is a common unreasonable phenomenon in criminal law. But Professor Zhang Mingkai think, cannot constitute the crime of fraud in special circumstances, if the ordinary crime of fraud, as long as the legislation does not explicitly banned, can be identified as fraud, in order to achieve suiting punishment.[16]Specifically, for a special relationship between the overlap of articles of law, on the principle of using special law is superior to common law, but under certain conditions appropriate for weight method is better than the light law; some behavior did not reach the special law judicial interpretation to determine a standard of conviction, but conforms to the common law conviction standards, it shall the application of common law a conviction and sentencing.[17]But also the scholar thinks, if a behavior is not overflow special law constitution, is completely excluded from the "law of priority" principle, is "the priority of special law" principle.[18]This is a worthy of attention and research problems, involving legislation on statutory penalty allocation problems of coordination between the special law and common law.

BOption involves the criminal law article17Article2Interpretation of paragraph.2002Years7Month24Day of the NPC Standing Committee to the Supreme People's Procuratorate "about that has over fourteen years of age under sixteen years of age who bear the criminal responsibility of the problem" reply: Criminal Law17Article2The provisions of paragraph8Kind of, is a specific crime rather than specific charges...... At present, the criminal law scholars generally believe that, this8A crime is only the crime types, rather than a specific crime, especially in criminal law. Therefore, even if it is full14With the age of16Minors, as long as the implementation of the rape, can also be regarded as the crime of rape.

CPay attention to the main provisions of criminal law in examining options and quasi difference of the provisions, the criminal law article382The provisions of article is just a note (note that the provisions of the regulations is refers to the criminal law has the premise of the relevant provisions of the judicial personnel, prompt attention, regulations, in order to avoid judicial personnel ignore it does not alter the relevant provisions, but only to the relevant provisions of the reiterated. Instead of preparing provisions (quasi rule refers to the so-called will originally not meet certain provisions of the act also processing, in accordance with the provisions for example, a behavior which is not belong to the B sin, but will still be a criminal behavior as the crime is crime of B, B law), should remind judicial personnel, elements without changing the general citizen and state personnel constitute joint crime.[19]Therefore, the implementation of joint bribery ordinary citizens and the state personnel, but also can constitute joint crime.

DOption is a controversial question. Bribery behavior includes two kinds, namely passively accepting bribes and take the initiative to ask for bribes, criminal law399Article4Active bribery behavior only provisions of paragraph, and the behavior of the imaginative joinder of offenses, in accordance with the penalty from a felony, but if the behavior people take the initiative to ask for bribes, and this behavior is the existence of two behavior, should be combined punishment for several crimes.

Of course, this is a problem worthy of study. This relates to the criminal law article399Article4The provisions of paragraph how behavior, between the two crimes really constitute what crime, is the imaginative joinder of offenses, the absorbable offense or implicated offense? These are very controversial, but whether it is of universal significance the provisions of this clause, this clause is a legal provisions, or the provision of attention? Other provisions can be applied to the crime of malfeasance, other malfeasance crime and bribery, how to punish? It is necessary to study the problem of. The answer:ABC.

7The following case, that is: (2004In paper two chapter81Questions)

　　ANational leaders. Concoctive fact, slander, serious harm to the social order and national interests

　　B. abuse family members, causing the victims injuredCDependents. Abandoned, if the case is serious

　　DViolence to interfere with another person's freedom of marriage

Analytical:Provisions on dear action and non dear action there is 7 in criminal law. Note that these dear action in a particular case, is the prosecution of crime. China's criminal law has stipulated5For that crime, in particular: (1The criminal law article)246Article insult, libel (except the serious harm to the social order and national interests), here the "serious harm to the social order and the interests of the state" should be strictly construed, otherwise, can easily be used to fight the alien hand some leaders or suppress dissidents. (2) article257The provisions of violence crime of interference in the freedom of marriage (causing death to the victim, (except)3) article260The provisions of crime of abuse (except the victim serious injury, death, ()4) article270Article3The crime of embezzlement crime is stipulated in private prosecution. According to the provisions of the criminal law, the crime of abandonment and bigamy is not told to deal with crime, crime of abandonment, which, not only against the victim's custody and life safety law, also contrary to public order and good customs of a society, has the property of infringing public interests, don't rightly understood as dear action. The answer:D.