Criminal law research Chinese law2010National Annual Academic Conference

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In September 11, 2010, the 2010 National Conference of the opening ceremony was held in Lanzhou criminal law research Chinese law. The current annual meeting is hosted by the Gansu Provincial Institute of political science and law, Gansu Province Higher People's court, the people's Procuratorate, the prison management bureau. Reputation will grow Ming Xuan, President Zhao Bingzhi criminal law research China Law Association; vice president of the Supreme People's Court: Zhang Jun, vice president Chinese Academy of Social Sciences, International Law Institute Professor Chen Zexian, President of Northwest University of Politics and Law professor Jia Yu, China University of Political Science and Law criminal justice professor Qu Xinjiu Dean, Dean of the Chongqing University law school professor Chen Zhonglin, director of the research center of Wuhan University of criminal law professor Mo Hongxian, East China University of politics and law professor Liu Xianquan. Chinese Law Association Secretary General Lin Liang, Policy Research Office of high school legal deputy director Han Yaoyuan, the state prosecutor, Professor Ding Muying, deputy secretary of Gansu provincial Party committee, court, procuratorate, prison administration, politics and Law Institute of the unit leadership and from the law and practice of more than 220 delegates took part in the science of criminal law academic research. The Institute of international law China in Research Academy of Social Sciences, vice president Chen Zexian chaired by President Zhao Bingzhi on 2009, Institute of criminal law research China law will work summarized. President of Gansu Political Science and Law Institute professor Liang Yamin, vice president of the Gansu provincial Party committee Comrade Yang Jinghai law, provincial deputy secretary, deputy secretary of the party, the Supreme Court justice Zhang Jun, vice president, Secretary of Comrade Lin beam Chinese law, criminal law research professor, honorary president of the Gao Mingxuan representing the undertaker, law, criminal law research will address Chinese law.

The conference arrangements with three special reports. Respectively by the Supreme People's court vice president Zhang Jun as "the relevant criminal evidence examination and judgment of the two latest judicial interpretation of the applicable problem", the NPC Standing Committee Law Committee criminal office director Wang Shangxin "about" criminal law amendment (eight) "(Draft) the background and related problems", the Supreme People's Procuratorate law and Policy Research Office Deputy Director Han Yaoyuan for "the judicial interpretation of the applicable legal issues" special report.

The current annual meeting around the "social harmfulness theory" "adjustment of penalty and related systems" "the death penalty legislation control problem research" "on the crime of underworld nature organization" "drugs crime research" five major topics, received more than 300 papers, after a careful review and screening, the annual conference. Determine the included 214 articles.

This annual conference will also block the "social harmfulness theory", "adjustment of penalty and death penalty legislation control", "underworld nature crime and drug crime punishment and prevention" and other topics for discussion and exchange.

A special report:

Two the latest judicial interpretation of the applicable criminal evidence examination and judgment

Moderator: President Zhao Bingzhi professor of criminal law research Chinese law

Reporter: the Supreme People Court vice president justice Zhang Jun

SpeakQuestions: two the latest judicial interpretation of the applicable criminal evidence examination and judgment

Good morning Fellow Deputies!

I have two new judicial interpretation of the applicable criminal evidence examination and judgment to make a special report.

Two provisions concerning issues of evidence, mainly involving two provisions, judicial practice in the background of how to accurately grasp and apply the two provisions of judicial authorities how to change the concept, research closely this issue and the science of criminal law. How to make the report and the science of criminal law together? Evidence, in the form of procedures, the problem relates to the entity, but also criminal law problem.

First of all, conviction and sentencing. One is the crime with the non crime to a considerable extent is decided by the evidence. Such as bribes or gifts? Is the evidence, but also criminal law must study the problem. Two of this crime and other crime problem. In fact is the evidence, such as the embezzlement and corruption, should carefully study the evidence in qualitative. The three is that the degree of punishment also cannot do without evidence. The facts and evidence about. Such as rape or given a young girl? This crime and that crime, the main research issues of evidence. A bribe or huge amount of property of unknown origin, more evidence is needed.

Principal or accessory, surrender can be founded, meritorious service whether can be identified, is the common principal offender should distinguish between principal and accessory, the penalty imposed, are related to the evidence. In many cases, including the social concern of the death penalty cases, but also the evidence of the problem. Benign and standardization of the Supreme Court, will soon be in the national comprehensive pilot, solve the sentencing is open, justice. The public was a substantial justice of sentencing, or criminal substantive issue, the nature of the problem is the criminal law.

Research of substantive law and procedural law together, it is difficult to separate the judicial practice. Practice in qualitative research, the punishment on the controversy, more need to combine. For example, the applicable law to consider the question of admissibility of evidence, many problems will be solved. Criminal law is an indivisible whole.

In May 20th, the Central Committee held fifth criminal judicial system reform topic briefing. Heard about the death penalty cases "evidence" "provisions of the illegal evidence exclusion rules", the drafting of the two important legal documents, after serious discussion, the two regulations have been passed in principle. June 25th officially released, 7 1 has started. Two senior Ministry released a reporter asked, caused the attention of the society. A judicial reform bill, some famous experts carry on the invitation, they generally believe that the two provisions to promote the epoch-making significance of criminal justice, to ensure the quality of case, justice of law enforcement in china.

Today, mainly introduces the background of regulations:

Set background, these two provisions, is an important part of implementing the criminal policy of combining punishment with leniency requirements of the central judicial system reform. The reform of the judicial system including the ideological content: optimizing the allocation of judicial power, the lenient and severe criminal policy implementation, and the team construction and property security four aspects. On the criminal policy of combining punishment with leniency content are the embodiment of the reform of the judicial system in the opinion of two provisions. Clarifying the scope of exclusion of illegal evidence, clear and relief of misjudged case that way.

Zhao Zuohai case, has aroused widespread concern in the community, some people think that is the case that these two provisions in place, but it's not, is already brewing research.

Background: two two regulations after brewing gradually, gradually revised, gradually perfect, is a gradual process.

Study on the death penalty system, mainly involving crimes, drug crimes is the first batch of the focus of the study. To the serious violence homicide, explosion, robbery and other crimes, attracted attention and concern. Standard of evidence to implement the unified strict opinions, relevant provisions of the Ministry of public security, high content of judicial interpretation, combined with the experience of the norms, is a gradual process.

Background: there are three prominent problems in judicial practice. If you do not intervene in specific cases is not known, the public security organ, explain the rules, norms Procuratorate law court, not a complete and unified standards. In almost every case has to use supplementary investigation, especially prominent problem on the extraction of evidence in the case of. For example, a murder weapon after two years, can also add extraction, as the judges can you dare to that? 30% of death changes because evidence is not approved.

The evidence problems:

1, torture to extract confessions cause miscarriages of justice.

2, the evidence is not transferred to the people's court, the procuratorial organs. Such as two individual crime, captured in one case, only to a defendant, another in the files of the case did not show. Until another arrested, found that withdrawal from the highest law.

3, the identification problem. Fingerprint identification in the final audit only to find that there is a problem? Then the arrest, prosecution, trial is to review identified. In fact, because of special trust and identification, this basically is not examined and checked. Moreover, DNA identification has problems, have found more than 20 cases of the supreme law problems.

If you do not have strict rules, is not a fair judgment, also won't get people's recognition, the image of the party will suffer. So we made two provisions.

The main contents of two regulations:

The public security department announced the implementation of the relevant provisions, are absorbed in the. A major breakthrough in there:

1, there are several is considered to be a breakthrough.

For the death penalty evidence judgment. The facts of the case, must depend on the evidence. This is believed to be the first clear evidence referee principle establishment.

2, the provisions of article fifth, the more stringent standards for more careful handling death penalty cases, there is a reasonable doubt cannot accept. Although it did not specify beyond reasonable doubt, but there are already beyond reasonable doubt shadow. Fan Chongyi teacher, said the American what reasonable doubt, God only knows.

Evidence 3, investigation of extraction is not recorded, prove that there is no report of sources, can not be used as evidence. This is the illegal evidence exclusion rules. Specifies the exclusionary rules of evidence, evidence, documentary evidence sources of law can not be proved, is excluded evidence list.

4, to establish the opinion evidence rules. Article third paragraph twelfth: witness speculation, not as the admissibility of evidence use presumption. The above four items, is based on the original procedure on the provisions of the new increase.

Illegal evidence exclusion Provisions Article seventh, article 11. This is the first time defined, evidence, burden of proof, the investigators shall assume the legitimacy of the trial before the. If the prosecutor cannot present the evidence validity evidence, confession is not as the admissibility of evidence. The public prosecutor has the burden of proof the validity of evidence in court.

The fourteenth regulation of illegal material evidence, documentary evidence exclusion principle. These so-called with specified breakthrough, the essential principle and criminal procedure law are consistent.

Evidence exclusion of five combined with a prescribed form itself is innovation, breakthrough.

 Two provisions need to pay attention to the place.

The 7 major types of evidence, increases the electronic evidence. Eight types of evidence examination and judgment to make specific provisions. Especially for e-mail, electronic data interchange, chat, blog, writing and so on as the admissibility of evidence exchange. Of 8 kinds of exclusion of the illegal evidence as a principled explanation, I divided into three categories in terms of:

The first category is the objectivity of evidence. Material evidence, documentary evidence, inspection record, appraisal conclusion, as long as the collection of legal procedures, identification procedures in accordance with the regulations, anyone extraction, extraction at any time and in any place, the conclusion is consistent with subjective judgment, not because of the changes, not the operating procedures varied.

Incredibly, the use of the process, the focus of the review of the source, collection of fixed procedures, the process of collecting identification in compliance with the relevant provisions, as long as required is legitimate, it should be accepted. Otherwise, because of the exclusion.

We have a review of the evidence in the objectivity of legal procedures, do not pay attention to. Especially in the process of handling their own investigator for the center, with their investigation used to collect fixed, not considering the use of evidence is to have a prosecutor, judge to adopt, collection, fixed the legitimacy of evidence is the most important. The supreme law and 44 pieces of evidence collecting investigative problems, unable to approve death penalty, transferred to the Ministry of public security has aroused great attention.

The second category is the subjective evidence.

The so-called subjective evidence, refers to the defendant's statement, the statement of defense, the testimony of witness is the verbal evidence from human. Relationship between the defendant and the victim, defendants and witnesses, witnesses, have different cognizance, that you think the dialectical logical conclusion, not one size fits all standard. With the investigator, prosecutor, judge by their social understanding of the law of evidence, to make their own judgement. This is the kind of evidence of a group of the largest discretionary space, also the most prone to problems of evidence.

For example: a heavy injury cases, the parents saw the child to commit the crime, evidence of this is the most solid, the most reliable evidence. Because the parents love their children with nature, can make such testimony, credibility is very high, it can be recognized.

The same parents, in the neighborhood of fighting, that children did not attend or not with weapons, playing the part is not enough to cause injury of the testimony, to put forward the reasonable doubt. The neighbor's testimony also need to consider the relations between the two sides, in order to make the admissibility of evidence judgment.

If a prisoner's parents that their child has reached the age of 18, and the argument and the neighbors that are under the age of 18, you can tell he has over 18 years of age? You can because their parents testimony for the death penalty? If you know your testimony to their children on the death penalty, he to disprove, whether you should accept their testimony?

The third category is both subjective factors and objective evidence. If the judicial psychiatric appraisal conclusion, including some audio-visual materials, electronic evidence. Although some also belongs to the subjective evidence, but is shown to objective evidence of. Such as electronic evidence, although is communication, e-mail, chat to leave, but then appear in the form of documentary evidence, so both subjective and objective factors.

Such as psychiatric appraisal conclusion judgment, if not the parents, family members have a history of mental illness to understand. The expert conclusion, if the application is not illegal, don't do identification. If there is objection, identify whether rights in the public security organs, procuratorial organs, if the trial step is judicial authority.

Some scholars put forward, the judge is not a psychiatric experts, as long as the proposed forensic psychiatric problems, to carry out identification. But the law is not so specified, for the identification of whether there is a mental illness, whether need identification, has a clear requirement. Have a mental illness to doubt, if not for identification, but also to propose a firm.

 

The concept of law enforcement issues.

In order to make the case be lawful, fair judgement. The first is not a system problem, is thinking of the problem. If the concept is not changed, the system can not properly implemented, is not. The implementation of the criminal procedure law, the executive is not very good, comprehensive implementation.

According to the court shall prevail, does not deny the principle of taking the law as the criterion. The court shall prevail, not to judge shall prevail. Because the court's conclusion, after the public prosecutor, the defender, defendants, certification of the results, is the final conclusion of a criminal case in criminal procedure, rather than the judge's opinion. If the investigators, prosecutors set up the concept of law enforcement, in forensics process, will never appear again just for evidence, not making the legitimacy of sources of evidence.

The procuratorial organ has oversight responsibilities, the supervision of evidence should be given high attention. The use of already extracted the evidence, the court evidence to supervise. Particularly for evidence of judging, more to emphasize control. With the multi supervision.

The Department of public security organs, should strengthen communication and coordination, have a different opinion qualitative including proof, on the case, the final processing results effects are not good, the social effect is not good, the legal effect is not guaranteed.

We will establish a unified, grasp more scientific standard, cross training, strengthening the training of an organ, a system can not solve, need in the politics and Law Committee under the unified leadership, especially the interpretation to lecture circles on affairs departments more comprehensive and scientific legal policy rules will be more uniform.

I will make a comparison principle today. Thank you.

Attached: Vice President Zhang Jun's speech

Dear leaders, teachers, Comrades, hello! Over the past year, the Supreme People's court is committed to implement the resolution, the central political conference Comrade Zhou Yongkang put forward the social contradictions and social environment of innovation, impartial and honest law enforcement three important work. And in February 8th this year, announced the "Supreme People's court to implement the criminal policy of combining punishment with leniency opinion", generated a good response in society. "Opinions" of civil conflicts and crime how to properly deal with according to law, not only to punish the crime, but also can resolve social conflicts, promote social harmony and make provisions; "opinion" was put forward to the provisions of the criminal law is more clear, specific, operational requirements; "opinions" put forward the wider than the past leniency punishment condition to surrender, meritorious; "opinions" put forward for the first time the elderly crime lenient treatment problems. The amendment to the criminal law "(eight)" (Draft) has clear provisions in the. In April this year, the Supreme People's court held criminal justice personnel training classes in Beijing, the theme is to carry out the criminal policy of combining punishment with leniency, truly implemented in judicial practice time felony punish misdemeanor according to law, policy, the lenient misdemeanor to expand the application of non imprisonment punishment. From the statistical point of view, the non custodial penalty from less than 14.56 in 1995 rising to 2009 30.89%%. At the same time, intensify the crackdown, serious harm to the social order in which organized crime behavior, the penalty rate in more than 45, heavy penalty of drug crime rate in more than 31, severe punishment of trafficking in women and children, in the rate of 61 above. After the criminal law needs to be strengthened on the following research questions: one is how to further perfect the criminal legislation, the criminal policy of combining punishment with leniency is fully implemented in legislation, the death penalty policy implementation is better to legislative control legislative control, judicial control drive; two is to strengthen the criminal justice, that justice be recognized by the society; the three is how to further deepen the study of criminal law, the theoretical research to better serve the China society under the rule of law, economy, construction.

Special report two:

The "criminal law amendment (eight)" draft background and related problems

 

Moderator: Prof. Jia Yu vice chairman of the criminal law research Chinese law

Speaker: Wang Shangxin, director of the NPC Standing Committee Law Committee of the criminal law

SpeakProblem: the "criminal law amendment (eight)" draft background and related problems

 Host: Professor Jia Yu amendment involves a lot of problems, especially for the cancelled three death penalty, aroused the masses, media, the high-level attention. Chairman of the National People's Congress criminal office Wang Shangxin in the criminal law amendment eight revision background and related issues to make a special report. Welcome to our director Wang Shangxin lecture!

Director Wang Shangxin: take advantage of this opportunity, and we make a Unicom, understanding, communication. Now in terms of the amendment is not an opportunity too good, because the amendment under consideration, how is the Standing Committee agreed their authority. I hope you can communicate with me, not just limited to this amendment, nine comments and suggestions, and after the ten amendment. My zip code 100805, the address is meeting on the unit.

I mainly talk about, some revision bill amendment we proposed, thinking to be deeper, especially on the trend of criminal law system. I will now about the criminal law amendment (eight) the background and related issues a report. I will be carried out from five aspects that.

The first problem: the eight amendment background

Background. 97 years after the revision of criminal law, there are two explanations, the seven amendment, there has been new changes need to be corrected, it is also a permanent background.

Two background specific. One is some NPC deputies and society put forward amendments and suggestions. The three session of the NPC has just concluded, 76 delegates, puts forward the opinions and suggestions of amendment to the criminal law, involves to the Criminal Law Provisions Article 53, the provisions of the proposal to increase more than 20. Two is the ongoing deepening the reform of the judicial system requirements. Need to amend the criminal law to implement the criminal policy of combining punishment with leniency, this big topic, relates to the amendment of criminal law of a total of 14 projects, including 12 projects is the NPC Law Committee led, another two have led the high school, judicial reform. Specific charges related to the seven amendment, some have changed, some need amendment Ba Lai correction.

Second problems: the guiding ideology of amendment eight.

Have not received any one leader gives guiding ideology, I understand:

Starting from the actual situation Chinese, further implement the criminal policy of combining punishment with leniency, solve the problems encountered in the judicial practice,To strengthen the protection of criminal law on the vital interests of the people, maintain social stability, to provide guarantee for the construction of socialist harmonious society.

Third problems: the eight amendment characteristics

Distinctive features, from the content has two characteristics, puts forward two characteristics from the operation form.

First, from the content, pay attention to the vital interests of the people, criminal law reflects the full protection of the people's livelihood. To pay more attention to people's livelihood, the people's rights to modify, amend basis as main.

Second, combining punishment with leniency, criminal policy to the criminal law of the structure of the adjustment, from the study on the general, criminal policy, so as to gradually improve the main structure of the criminal law.

Third, the people's Congress subject position in legislation, absorbed a large number of deputies to the legislative amendment opinions and suggestions. By combing, analysis, understanding.

Fourth, more embodies the scientific, democratic legislation. Scientific legislation, not only consider the overall trend of the world criminal law development, and combined with the specific conditions in our country. Efforts to achieve the combination of organic. Such as drunk driving. Taking into account the general problems.

Democratic legislation, the formation of a draft repeatedly soliciting opinions from all parties reached a basic consensus, based on, was submitted to the NPC Standing Committee, including the times and the central finance communication, three held to discuss the legal experts in Beijing, for the ten provinces and cities NPC Standing Committee legal agency views. I was involved in changes in the law have been more than 20 years, many soliciting opinions for the first time.

Fourth problems: the main content of the criminal law amendment eight

This revision is divided into two aspects, one is in implementing the criminal policy of combining punishment with leniency, another is to strengthen the protection of people's livelihood, add a new crime, reducing the crime threshold.

First, implement the criminal policy of tempering justice with mercy. I summed up three aspects.

Adjustment of the structure of criminal law. Although in the lenient and severe criminal policy of the content, it is difficult to use a wide and strict limits, or so I think by adjusting the structure of criminal law to more appropriate.

Reading the scholars provide lots of information, this paper, multi-level study agree: the structure of China's criminal law basically accord with the reality of our country, to meet the current needs, can prevent and reduce crime. If you really do not adapt, our society is not now. Social problems, such as the actual implementation of the death penalty exists, emphasis, student punishment too light problem.

Appropriate to reduce the death penalty charges. According to the present situation of economic society and the social order, to listen to the views of all parties of the basis of further investigation and study, careful study of the amendments to the criminal law eight, the less the death penalty of non violent crime, reduce the death penalty charges. Never considered the corruption and bribery crimes amendment corrupt problem, experts in the present capital can prove.

The death penalty charges more, some rarely used, can be properly reduced. One is the criminal law of our country stipulates 68 death penalty charges, accounting for 15.3% of the 444 charges. From the absolute point of view, is one of many countries in the world, the death penalty charge. The 95 countries have abolished the death penalty. International Convention on the rights we have added, also have been put forward to apply only to serious crime. The two is that we reduce the death penalty. 68 charges are less suitable, or even not applicable. The three is in line with our country has consistently adhered to the principle of cautious application of death penalty. According to the actual conditions of the current stage of development in China, the appropriate cancellation of economic crime, the death penalty for non violent crimes, will not bring greater impact to the state. The people involved in the criminal right, relates to the social stability of the crime are not related. Crackdown on crime will not affect. Through repeated demonstration, agreed. Reduce the death penalty, have retained the life imprisonment, criminal offence is also consistent with the principle of adaptation.

Restrictions on the given a suspended death sentence commutation limit. In the implementation of the problem, one is the commutation, the shortest 17 years shall be out of prison sentence is 17 years. Two is not to punish, prevention of crimes seriously; three is not masses. On eight kinds of serious violent crimes, after the expiration of death sentence commuted to life imprisonment, can decide not to commutation.

The provisions of article eighty-one of criminal law with no chance of parole. For a long time, scholars put forward opinions and suggestions. Based on the principles of education, reform, after over 20 years of punishment execution, can be released on parole. This is not just changed a provision, in the implementation and guidance, to try to apply the commutation of punishment, parole not more, because the person in control monitoring, if there is a new crime can be committed to prison. Monitoring is better than sentence, also in line with the trend of international criminal law.

Extended and combined punishment of prison prison cap. To improve the combined punishment for several crimes are to be sentenced to not limit, but increased to 30 years, 25 years of penalty provisions. The reason is, if you want to improve the relevant provisions of the general, if modified, should be related to the specific charges are clearly defined and expression, research to itemize properly.

This change, is actually the death penalty is not reduced, increased student punishment. Because the 13 death penalty charges basically unused. But if a large area to improve student punishment of words, will not affect the social unrest, stability. We also investigated the improving structure student punishment of some countries, is also gradually changes to adjust, rather than what you can do. Adjusting the penalty structure is a long-term task.

In the study of criminal law in adjusting the structure, notice from the national overall situation to consider the problem. One is to reduce the amount of the death penalty, but also pay attention to not cause social problems; a perfect criminal law system of great changes to the death penalty, to ensure its implementation through feasible scheme. Don't because of greedy big, ball work pants caused modifications cannot be. The two is to extend the number of criminal execution in prison, and to study the problem of crime and some of the smaller.

Second aspects, to perfect the strict punishment of the law.

Perfect severely punishing the crime of the underworld organization, especially qualitative research about the underworld modification.

The crime of blackmail and impose exactions on. The underworld crime is the main means to blackmail and impose exactions on, has changed and the legislation of criminal law of great change, basically is the threat of the use of violence, and the crime of robbery and differences, not immediately to property, there is a space between the judicial assistance. However, we have to consider the people dare to report. One is to improve the penalty, a lower threshold.

Crime of forced transaction. Such a change is the reality, and summed up the thinking of a given. The underworld in economic activities are becoming more and more obvious, violence has become increasingly rampant illegal money. Such as forced to buy low-cost high profit enterprises, the price will be bankrupt enterprises, is very abominable crime. This also reflects the protection of the interests of the people.

Stir up trouble crime. Mainly for the underworld evil forces in the society, not black, but a bully on the street, today on this tomorrow on the sentence, not tall, often catch and release the catch, the effect is not good. After the study, these evil forces are basically black society's predecessor, if not early small words, gradually may form certain organization. So this article modify the implementation of this crime, improve the sentence, is a response to this social phenomenon.

Expand the scope of special recidivist crime. Does not require, before and after the crime, as long as the breach of the crime, constitute recidivism.

Third aspects of contents: modify the lenient treatment.

Elderly crime lenient, exempt from the death penalty. Raise the age to 75 years old. Limits of this age, also made a lot of aspects of the argument. Some also put forward if commit the most heinous crimes whether it be lenient?

Conditions of probation application. No admission to expand to five years in prison on the scope, because five years is a very serious crime. To solve the problem is not very good grasp, focus on standard conditions. If the past vague "and will not cause further harm to society" to "no longer a crime" which better judgment. Especially for the duty crime cases, better judgment.

Fourth problems, second aspects, strengthen the protection of criminal law on the people's livelihood.

Modifications of the main seven charges, I say two charges.

Malicious arrears of wages. Why do you want to have the ability to pay but not paid work in crime, mainly in order to protect the rights of workers, the protection of people's livelihood reflected a. Included in the adjustment range from civil to criminal law, because of a serious violation of the labor property rights, and what is the difference between the robbery, theft, seriously affected the social stability, has serious social harm, was foundation of criminal sanctions.

Some of the behaviors by means of civil law is to adjust, is the last ditch behavior. On the escape, to the people's livelihood have government funded payment of arrears of wages.

Dangerous driving crime. There are likely to lead to a series of problems, what behavior should be crime? Mainly related to the rights of citizens, great hazards. The criminal law should not intervene? Drunk driving is how to control? Drag racing is to ignore the life phenomenon.

Fifth problems: Reflections on the amendment brought

Criminal law amendment eight drafting, that we are facing some issues to be discussed, also is the homework.

A theoretically, how to apply the lenient and strict criminal policy

The scholars theoretical criminal policy support

Two, according to the situation of our country, the development of international criminal law can learn from the experience, how to secure to promote criminal legal system in China

Amendment eight has not made up the loophole, but to perfect the system, structure.

Three, criminal sanctions in adjusting social relations role, more and more intensive, more and more weaken administrative punishment, how to consider this phenomenon?

Thank you!

Professor Jia Yu: Director Wang Shangxin made full preparation, told us a lot of legislation background, also left us with a question, worthy of our criminal law scholars to serve the whole situation and thinking, research, provide more reference for legislation.

Special report three:

The judicial interpretation of several law problems

 

Moderator: Prof. Mo Hongxian vice chairman of the criminal law research Chinese law

Reporter: Policy Research Office of the Supreme People's Procuratorate legal deputy director Han Yaoyuan

SpeakTitle: the judicial interpretation of several law problems

 

Thanks to the study of criminal law will give me the opportunities to communicate. I will high school in recent years in the judicial interpretation of the problems encountered in the work, make a report.

A case, the relationship between standards and the standards of conviction, the examination of arrest, prosecution standard.

In 1997 December promulgated the "standards" provisions of the number and amount of 1998 on the embezzlement of public funds and the judicial interpretation of the provisions on the amount standard file and conviction standards. On the public security organs and other standards are specified for specific crime in criminal law. Therefore, making file standard is based on the specific provisions of criminal law, is the embodiment of specific provisions. However, if the two equal to the investigation did not meet the law, the legal threshold too high. If less than the standard of conviction, some problems appeared in practice, easy on the citizen's personal rights violations.

Filing standards Is it right? Conviction standards, some think that is lower than the standard of conviction, and some that is equivalent to the standard of conviction. Gaojianyuan formulation that filing standards is the standard of conviction. Release case of standard is the standard of conviction, some on file standards issued, has been clearly defined. Judicial interpretation in the case of standard and adhere to high standards of conviction consistent principle. There is sufficient evidence in the substantive law. But in the sense of procedures, the evidence standard filing standards and standard of conviction is different. Filing standards, arrest and prosecution standard standard, the entity is required to constitute a crime, in the evidence requirements are increasingly high.

Embezzlement of high school under the crime amount, high law conviction standards higher than the standard of high school, then high school has also made changes to adjust. Both have some less cohesive, now to strengthen the coordination, basically does not appear too uncoordinated situation.

The criminal procedure law is the legal basis for the standard, the standard is that the facts of the crime, the main basis for a specific scenario is that the law, more than enough for standard, below should not be placed on file. We are the specific according to law interpretation.

The provisions of Article 62 of criminal procedure law and the provisions of Article 82 are different, Is it right? Facts of a crime, then again after the file for investigation and collect evidence, and then identified.

Filing standards lower than the standard of conviction reasons: for the threshold is too high, is not conducive to the punishment of crime.

But there is no legal basis can be lower than the standard of conviction record. NPC Law Committee also decided to conviction standards to determine the accreditation standards.

The relationship between filing standards and examination of arrest, prosecution standards.

The condition of arrest, prosecution conditions, on evidence requirement is not the same. Case, arrest to the prosecution evidence standard, the increasingly high demand, process showed a progressive.

Two, whether the judicial interpretation of the amount can be specified

In recent years, some judicial interpretation of some of the amount specified.

In 2001, the standards of prosecution of economic crimes stipulated amount, requires all regulations according to the actual situation, and the high school record. Units such as fraud, embezzlement.

In 2010 May, the public security organ shall publish the economic crime (two). The embezzlement, misappropriation of funds to retain the original provisions. Although there are improved into the sin of opinions, but in the study, considering with the corruption conviction and sentencing phase uniform, so there is no change.

There are provisions of the amount of contract fraud, embezzlement, misappropriation of funds case, withdrawing capital crime four kinds of criminal cases, consider the coordination problem to embezzlement, misappropriation of funds and bribery and corruption case, no change of the accreditation standards.

Provisions on the crime of the amount in the judicial interpretation, the idea that the provisions should be on the amount of amplitude cancellation of judicial interpretation, mainly based on the following considerations: criminal law itself is not specified amount for certain crimes, two high judicial interpretation is made according to the law;

Two is entitled to the power of legal interpretation authorization to the local courts and procuratorates? The two high to exercise the power of judicial interpretation, normative documents local high court, procuratorate cannot make the applicable law, the problems needed to be studied.

The three units in the implementation of specific provisions of criminal law, no provisions of the crime, can be convicted.

In practice, the unit of stealing electricity, oil and gas resources, how to identify the. The criminal law there is no clear, how to punish?

If the units in the implementation of theft, how to punish? From the actual execution of the current situation, some court held that the direct responsibility of constitute the crime of theft, some court judgment of not guilty. Our view is very clear: the procuratorate prosecuted after the court acquitted, procuratorate to protest. The most high is to draft judicial interpretation of theft, theft of units constitute the directly responsible personnel of theft, but should be distinguished and natural person.

Four, the unit crime and natural crime standard should be consistent

About the unit crime amount in one of two ways, one is clearly stipulated the unit crime amount, such as the criminal law 140 stipulation, producing and selling fake or substandard products, the provisions of Article 153 of the crime of smuggling ordinary goods, goods. Judicial interpretation provides some crime unit and natural person crime amount, also has a regulation unit and natural person crime amount different standards. Two is the criminal law does not explicitly stipulated the unit crime of amount standard, the judicial interpretation have stipulated the unit crime amount is higher than the natural person crime amount. In recent years, the judicial interpretation to reduce or cancel the inconsistent standards.

Five, the amount of crime problems attempted.

On the production and sale of fake or substandard products, are basically and the dens, but no sales evidence, how to do? Some amount of sales, but not up to the amount of fifty thousand yuan, the profit amounted to not to ask how to do?

Unable to find out whether the sales amount, conviction? No sales amount reached the conviction, value stipulated in Article 140 above three times. But no sales amount reached fifty thousand yuan, the value of goods is not up to more than three times, but the sales amount and the value of the total amount achieves 150000 yuan of above, also with the provisions of the 140 charges. The problem is the attempt of the crime of amount, some scholars believe that in this case the conviction has no basis in law, two high judicial interpretation unreasonable according to law. But we think the larger the value, a great social harm, should be attempted crime, the criminal responsibility, but for small, did not reach the degree of punishment, will not be punished for the crime.

Six, about the accomplice problem

General have specific provision to accomplice, there is no standard of conviction and sentencing of independent regulation. Provided that, should know, know deliberately equation constitute accomplice. I don't agree to put that into the law, because it is a kind of uncertainty.

Such as site managers aware of problems, a specific case. No collusion as not, whether it is a crime? The network of crime in the management, not the implementation of specific crimes can be convicted? How to convict? To help make the conviction?

Judicial interpretation of the two main rules of complicity: one is the provisions of circumstances under which the accomplice, but there is no standard of conviction and sentencing independent; two is the standard of conviction and sentencing provisions of accomplice independence. Is 2010 two explanations about the Pornographic Electronic Information crimes.

Judicial interpretation of the provisions of the accomplice is divided into two types, one is provided as an independent crime, another is not prescribed as an independent crime, but the standard of conviction and sentencing independent. Such as mobile phone operators and Internet operators, advertisers.

The following issues arise in practice: one is not to seek help behavior is one-sided accomplice; two is not common and is not as, whether an accomplice; three is to help make it separately independent of the standard of conviction and sentencing perpetrator? In short, we are in the judicial interpretation, should strictly follow the following principles: the law as the basis, based on the actual needs of law enforcement as a starting point, based on criminal law theory.