2012Years of criminal law. (Ren Xuan, answer and analytic case; the Revised Edition)

 

Test Volume Two

   

Note: the author analysis intended to rush answer, let everybody see it, to participate in the discussion, to prepare for the objection. In the analysis, the legal basis, legal analysis, language statement fails to consider, is more of a thinking and problem solving skills my oral expression, nor for proofreading, mistakes unavoidably, dandai! (Note: according to the Department of Justice announced the reference answer, on the part of the wrong answer questions for tagging and supplementary analysis and comment on content, in order to test preparation2013Scott!)

　　

Note: This paper for the multiple-choice, read by computer. Please fill in the answers on the answer card, do not directly answer in the paper.

 

　Three, uncertain item choice. Each problem set has at least one correct answer options, choose, choose less wrong or not, the election did not score. This section contains86 100Questions, each question2Points, a total of30Divided.

(a)

A foreign tourist, see people selling high simulation of RMB, with1Million for10Million counterfeit money, the counterfeit money clip sent home in the book. (fact)

Zhao condiment company wants to set up stores, sales have a registered trademark of Zhao, condiments, sent staff Zhao looking for partners. A know not to join conditions, still find Zhao sent its2Million for true coins and10Million counterfeit money, please join the help. Zhao and a signed cooperation agreements franchise store opened. (fact two)

A join, knowing that the fake "a drop of incense" condiment containing harmful illegal additives, but the best-selling products, in the "one drop of incense" with Zhao condiment registered trademark of private sale, and sold5More than 10000 yuan "a drop of rosemary". (fact three)

Zhang went to the store to wholesale1Million yuan condiment, see a bad attitude said not to buy. A pair of Zhang cuff and kick, and said "the price2000Yuan, payment is not going away". Zhang helpless payment1.2Million yuan to buy spices. (fact four)

A time deposit with a bank4Times of high interest loans, quickly earn money. Then, around distributing leaflets, claims for stores to financing, commitment3Months after payment and payment of bank deposits2Times interest. From a social funds1000Million, usury lending, earn a spread. (fact five)

A capital chain rupture can not repay the loan, but still continue to expand publicity, and absorb the social capital2000Million, later period loan return the loan. After a huge deficit, the balance500Million to his son, jump off building Dutch act. (fact six)

Please answer the86-91Questions.

86On the analysis of a fact, the following options are correct:

A.Use1Million for true currency exchange10Million counterfeit money, constitutes the purchase of counterfeit currency crimes

B.Deduct a cost1Million, a purchase counterfeit currency amount9Million yuan

C.Buying counterfeit money abroad, against China's currency management system, should apply the protective jurisdiction to hear the case

D.The counterfeit money sent home, belonging to the smuggling of counterfeit money, constitutes a crime of smuggling of counterfeit currency crimes

[D] purchase of counterfeit currency crimes, smuggling of counterfeit currency crimes, the crime amount, scope of application of criminal law

Answer.AD

[analysis]AA real coin exchange, with high simulation of counterfeit money, to buy counterfeit money, the larger amount, constitutes the purchase of counterfeit currency crimes.BThe amount of calculation, calculation of counterfeit money in the currency denomination as the standard, the amount of crime is10Million yuan.CProtective jurisdiction, applicable object is a foreigner commit crimes to the China or China citizens abroad, a Chinese citizens personal jurisdiction and non protective jurisdiction.DA counterfeit money, with the book by mail to China from abroad, from the perspective of a crime of smuggling, the establishment of counterfeit currency crimes. But the need to pay attention to, according to the2001The spirit of the highest national court year law on financial crime case summary, non selective accusations in criminal law in accordance with a counterfeit money, not punishment, choose a heavy punishment. According to the criminal law and the judicial interpretation of the provisions, one hundred thousand for smuggling of counterfeit currency crimes aggravated amount plot and the purchase of counterfeit currency crimes huge plot, by comparison, smuggling of counterfeit currency crimes prescribed punishment (smuggling of counterfeit currency crimes is higher for more than seven years in prison, the legal punishment purchase of counterfeit currency crimes for more than three years to ten years in prison), eventually the smuggling of counterfeit currency crimes shall be given a heavier punishment. To sum up,ADAn election.

[] for "a crime", "the establishment of a crime", "a crime" and other words of criminal law, the law does not clearly explained, due to personal habits often have different understanding. In general, the first two terms from the perspective of a crime is used, not the final conviction conclusion; third language is the final conclusion. But for the "constitution of a crime" is also used in the final conclusion on the significance of the conviction and punishment, the examinee should be combined with the type of information comprehensive judgment, to avoid unnecessary lose points.

 

87About the fact two qualitative, the following options are correct:

A.A will2Million for true coins to Zhao, constitute the crime of bribery

B.A will10Million counterfeit money as real money to Zhao, does not constitute a crime of fraud

C.Zhao received a property, constitute the crime of bribery of non national staff

D.Zhao was a fraud and contract contract, constitute the crime of dereliction and being deceived

[D] the commercial bribery crime, the crime of using counterfeit money, the signing of the contract crime of dereliction and being deceived

Answer.BC

[analysis]AItem, stem information not explain state-owned units Zhao unit, the status of national staff, should therefore be understood as non national staff of non state owned units, commercial bribery is a implementation, the non national staff bribery crime.BA, a will10Million counterfeit fake currency use, constitute the crime of using counterfeit money.CA, Zhao illegally accepting a property, for the benefit of a, and the larger amount to5000Yuan, constitute the crime of bribery of non national staff.DThe crime of dereliction of duty, the signing of the contract being cheated is status crime is a crime, directly responsible personnel of state-owned enterprises and institutions of dereliction of duty in the contract process resulting in serious losses to state interests, Zhao does not have the identity. To sum up,BCAn election.

 

88The qualitative fact about three, the following options are correct:

A.In the "one drop of incense" to put Zhao condiment registered trademarks, constitute the crime of counterfeiting registered trademarks

B.Because of the "additive one drop of incense" harmful to human, constitute a crime of selling poisonous and harmful food

C.Sell out5More than 10000 yuan "a drop of incense", a breach of selling fake or substandard products

D.The counterfeit registered trademark behavior and sell "a drop of incense" behavior, should be combined punishment for several crimes

[D] the crime of counterfeiting registered trademarks, sales of counterfeit trademark goods crime, production, selling poisonous and harmful food crimes, and selling fake or substandard products

Answer.ABC

[analysis]AItem, permit a without the owner of a registered trademark, the use of the owner of a registered trademark on the same kind of the same trademark on goods condiment, constituted the crime of counterfeiting registered trademarks.BStudy, production, selling poisonous and harmful food, for the acts of the crime committed, as long as the production, sales of incorporation of toxic, harmful non food raw materials or knowingly sells that contain toxic, harmful non food raw materials that constitute this crime. A knowing that "a drop of incense" contain toxic and harmful non food raw materials still sales, a sales of toxic, harmful food crimes.CItem, poisonous and harmful food, also belonging to the fake and shoddy products, sales amounted to more than fifty thousand file standard, sales and shoddy products constitute a crime.DStudy on the same piece of goods, both counterfeited registered trademark, and the sale of counterfeit trademark goods, the conviction of counterfeiting registered trademark crime punishment, not punishment to the crime of counterfeiting registered trademarks and the sale of counterfeit trademark goods sin. But for different commodities bearing counterfeit registered trademarks are implemented and sales behavior, the combined punishment for several crimes. To sum up,ABCAn election.

[] A. options forABCIn the behavior nature of the "constitution", the "violation" of a crime ", a problem that people have different understanding of the meaning of two words. In accordance with the provisions of the criminal law, constitute a crime of selling fake products and the production, selling poisonous and harmful food crimes, without punishment, choose a heavy punishment; at the same time, a counterfeiting a registered trademark of the behavior and the production, selling poisonous and harmful food crime, no punishment, choose a heavier punishment. Finally a only in a severely punished. Conclusion is consistent, but the use of the reasoning process of crime number theory is different, some think it is the imaginative joinder of offenses, some think it is the imaginative joinder of offences, some think it is implicated offense.

[comments] this objection248Article.

 

89The qualitative fact about Sijia, the following options are correct:

A.Should be the crime of robbery

B.To stir up trouble crime

C.To blackmail and impose exactions on Crime

D.Should be based on the crime of Forced Transaction Crime

[C] distinguish forced transaction crime and robbery crime

Answer.D

[] on the basis of analysis2005On the judicial interpretation of the supreme law of robbery, engaged in normal commodity transactions or labor services, violence or coercion to force others to surrender and reasonable price, costs less money, if the circumstances are serious, shall be punished by the crime of forced transaction. For the purpose of illegal possession, in the sales, trading, service means, under the guise of violence by stress force others to surrender and reasonable price, cost is the difference between the money and goods, to robbery conviction and punishment. Combined with the questions given information, a franchise deal in normal commodity (not to trade for a cover), for beyond the normal transaction price twenty percent charges (whether difference, can be accepted), fists did not explain wounded plot, the factual circumstances, in accordance with the provisions of judicial interpretation to the crime of forced transaction conviction, constitute the crime of forced transaction. Therefore,DAn election.

[] that is based on judicial interpretations are given the answer. According to the views of scholars, forced transaction crime and robbery crime belongs to the compatible relationship, the behavior may also constitute the crime of robbery and the crime of forced transaction processing, according to theory of imagination joinder of offenses.

[comments] this objection254Article.

 

90The qualitative fact about five, the following options are correct:

A.Compared with bank deposits4Times of high interest loans, constitute the crime of illegal business operation

B.A although fictional facts to absorb huge amounts of money, but do not constitute a crime of fraud

C.A illegal absorbing funds, constitute the crime of illegal absorbing public deposits

D.Public deposits illegally absorbing on nail should be based on the crime of illegal business operation and the crimes he

[D] the illegal business crime, illegal absorbing public deposits crime, crime of fraud, crime number

Answer.BC

[analysis]AAs a natural person, a high interest rate loans, according to the judicial interpretation, the private lending, not prohibited by law, just for beyond the bank loan interest rate four times of non support. A behavior does not constitute a crime. If a for the purpose of profit from financial institutions lending, taking cash tight lending, constitutes a crime of relending at high interest rate.BCA term, without approval by the relevant authorities, the fictional facts and absorbing public savings behavior, constitute the crime of illegal absorbing public deposits, does not constitute a crime of fraud. If the nails for the purpose of illegal possession, fictional facts to absorb public deposits for all, can constitute the crime of fraud, crime of fraud is fraud, imaginative joinder of offences.DItem, a does not constitute the crime of illegal business operation, the combined punishment for several crimes impossible. To sum up,BCAn election.

 

91About the fact six qualitative, the following options are correct:

A.A for the purpose of illegal possession, illegal absorbing funds, constituted the crime of fraud

B.For the amount of a fraud2000Million yuan

C.According to the "criminal law" provisions, fraud amount is particularly huge, be sentenced to death

D.A dead, leading to elimination of penalty, the court on the balance500Million can not be recovered

[D] the crime of fraud, crime, criminal law amendment eight

Answer.A(Department of Justice announcedABC)

[analysis]AItem, for the purpose of illegal possession, adopt fraud ways to absorb public money, constituted the crime of fraud, not for the purpose of illegal possession, may constitute the crime of illegal absorbing public deposits.BAccording to the study2010On the crime of fraud in financing the judicial interpretation of the Supreme Law (years2011The new legal documents), calculation of fraud amount to conduct the actual amount of fraud, has returned to the former amount deducted.CA huge amount of fraud, and especially heavy losses are caused to the interests of the state and people, where the death penalty. Note that the amendments to the criminal law eight abolished the bills defraud crime, crime of financial certificate fraud, credit card fraud crime death penalty, retained the crime of fraud in financing the death penalty.DThe cause of death, destroy a criminal responsibility, administrative responsibility, but does not necessarily eliminate, a death does not affect the balance. To sum up,AAn election.

[] design of some item options, in the stem to the information, in the options and additional relevant factual circumstances, such asATerm describes a subjective aspect has the purpose of illegal possession, which needs no from stem information to determine a subjective purpose of illegal possession has no. And as theCThe question is in accordance with the provisions of the criminal law, under what circumstances the fraud may be sentenced to death, candidates do not combine stem information to determine a huge amount of fraud, and there are millions of deficit account cannot return especially heavy losses are caused to the country and the people, shall be sentenced to death. So to understand will give an irrelevant answer.

[comments] this objection71Article. According to the published answer, remember to do is set the problem the fact plot misunderstood,BItem analysis, crime of fraud in financing amount is no problem, the problem is the total amount of fraud in the dry plots identified and deduction amount misjudgment;COne is more dramatic, with special emphasis on to set the problem thinking of docking, the result is draw further apart, but in any case feel for language lead to errors of judgment to drop points, too bad! Throwing opening dry facts, from the provisions of the criminal law, the given conditions, is clearly not enough to death.

 

 

Paper four

 

Note: This paper for short answer questions, case study, discuss a problem. Please press the question sequence in the answer sheet corresponding to the position of writing the answer, do not directly answer in the paper.

Two, (D.22Points)

Case: Mayor Huang is responsible for demolition and evaluation of a key project covers an area of early. Huang and the villagers Li Mou collusion, from Lee to a Village rental may be occupied hills20Acres of planting, to claim the compensation. But he does not agree with the rental of barren hills. Huang called village head pressure, and arrange to send Lee Village1Million in cash, he agreed to the signing of a lease contract. Lee contribution1Million yuan to buy small sapling5000Tall, hire in the hills.

Vice Mayor Zhao led to carry out the demolition, the evaluation work of acceptance. Lee to Zhao's father (director, the original County Civil Affairs Bureau retired) sent to1Million yuan in cash, please help. Zhao that his father after the money promised to take care of Lee, a nearby hillside sapling to Lee.

After Li Mou to obtain compensation50Million yuan, to Huang30Million yuan. Huang thinks he should share40Million yuan, two people of a dispute, Lee helpless and Huang10Million yuan.

Mr. Lee is very angry, and his wife Chen home. Chen said:"This is too greedy, I be to steal the money back."Lee late at night to the Yellow House opportunistic crime, but failed to find the opportunity, they will Huang automotive glass (value1Million).

Huang as Lee. Lee, determined to revenge, late at night on the lease hill fire (Lee lived in the hills).

The saplings just when the fire started, the villagers Xing is pass by a discovery. Xing a knowing laws discovered the fire, everyone has the alarm obligations, but because of problems with Li Mousu, then slipped away.

The fire burned all the trees on the hillside, burn the Lee, and spread to the fan a. Fan is the wake fled to the outside, think of bedroom5000Yuan in cash, which return a body to take money, was burned into the stone.

The problem:

　　1The mayor received Huang, Li Mou cash1Million a day, how should the conviction? Why?

　　2The Zhao father received1Million a day, a father and Zhao Zhao to conviction? Why?

　　3The Huang, Li made compensation behavior, should how qualitative? Two of the amount of crime should be how to identify?

　　4On Chen Li burglary and auto glass smashed a day, for two people how to conviction? Why?

　　5Some villagers Xing is not as arson? Why?

6If that Huang arson and fan is a causal relationship between death, may what reasons? Such as negative Huang arson and fan is a causal relationship between death, may what reasons? (two questions must be answered)

[answer]

1The bribery crime (1Points). Reason: according to legislative interpretation, village organizations at the grassroots level to assist the people's government engaged in administrative work, to the national staff of. The village on the basis of land management law to assist the government in land management, it accepts the properties of others, for the benefit of others, the amount reached5000Yuan, constitute the crime of bribery (1Points).

[answer]1The crime of bribery of non national staff, Huang, Li Mou of non national staff bribery crime. Rental of barren hills is transaction villager autonomy organization, not to accept the township government in the public management activity, village head at this time does not have the status of national staff, does not constitute the crime of bribery.

2Zhao father and Zhao (bribery accomplice1Points); at the same time, Zhao father composition using influence bribery (1Points), the influence of bribery and the use of bribery crime is the imaginative joinder of offenses, from a felony punishable (1Points). Reason: Zhao was left state personnel, it accepts the properties of others, using his son seek illegitimate interests for others, bribery crime by the influence. At the same time, Zhao father accepting property and promised to care, such as trading power for money, violated the national duty behavior can't buy law, constitute the crime of bribery, the parent has the instigation of Zhao bribes, joint crime, Zhao's father belongs to the imaginative joinder of offenses, the felony crime, no punishment (2Points).

[answer]2Zhao Zhao. The father and the accomplice in bribery crime. Zhao father was not using influence bribery. Because only in the retirees receive property by taking advantage of the past, and no complicity with the national staff can constitute the occasion, use the influence of bribery.

3Constitute the crime of corruption (1Points); two of the amount of crime are50Million yuan (2Points).

[answer]3Corruption. Together with others, as accomplices. Huang, Li made compensation constituted a crime of corruption, embezzlement accomplice is two people. Because two people together with Huang's job convenience for public property. Two people to the joint corruption crime amount, the amount of crime is50Million, and not in accordance with their respective share of the booty to determine the final amount of crime.

4On Chen to larceny (1Points), Lee to theft and intentional destruction of property crimes (1Points), Chen and Li constitute the accomplice of larceny (1Points), theft crime belongs to the crime preparation shape, can be accomplished crime shall lighter, mitigated punishment or be exempted from punishment (1Points). Reason: Chen abetting Lee implementation of theft, belonging to the instigator, constitute the accomplice of larceny, due to the failure to reasons other than the will proceed with the implementation of, belong to the preparatory behavior for a crime. Lee in the implementation of theft, the crime intention intentional destruction of property of others, belongs to excessive behavior, Chen this knowledge, by Li Mou alone bear criminal responsibility (2Points).

[answer]4. Chen constitute theft abettors, belonging to the attempted instigation. Lee constitute the crime of intentional destruction of property. Lee while receiving stolen instigation, but not according to Chen's instigation caused harmful consequences, for automotive glass smashed this result, belong to more than common intentional behavior outside, is in charge of by Lee himself.

5Does not constitute the crime of arson (as1Points). The reason: the discovery of fire alarm obligation does not constitute a criminal sense of obligation of the non action crime provisions on Administrative Law (1Points).

[answer]5Xing Mou does not constitute omission arson. Although the law expressly provides that the fire, everyone has the alarm obligation, but the obligation is not equal to rescue duty, alarm, at the same time, only in the behavior of people created a dangerous or has to protect, rescue legal obligations, the provisions in other laws, regulations and obligations, to the criminal law is not as the source of obligation. The fire in this case is Huang caused, Xing a just pass by, the risk does not create a fire, as a compulsory Xing no criminal law, do not constitute omission arson.

6Huang arson and fan is a causal relationship, kills reason: (1) dangerous Huang arson behavior on the fan's death (2) intervening factors fan reflexive Act (not abnormal3) intervening factors fan reflexive take money directly lead to be killed. The above three criteria, there is causality (2Points).

Huang arson and fan was killed is not a causal relationship, reason: (1) Huang arson behavior on the fan's risk of death (small2) intervening factors fan reflexive Act (not abnormal3) intervening factors fan reflexive take money directly lead to be stoned: (4) intervening factors fan anti body check property does not belong to the yellow a controllable range matters. The above four criteria, that there is no causal relationship between (2Points).

[answer]6Fire. Huang Fan and a death, the fan's behavior intervention.

Roughly rightfully causality (1According to the conditions that can be considered), between fire behavior and death"NoAThere is noB"Conditional relation (2) victim in the case, not accurately judge the risk return home to take money (3) victim in the case, take the money back to the house with common sense.

Generally the reason for denying the causality (1) according to the causal relationship, arson and death to the victim does not have the equivalent (2) defendants to implement fire behavior does not burn fan, fan for rescuing limited amount of property returns the highly dangerous places, counterintuitive (3The victim is normal adults) the spirit, of the consequences of his actions are very clear, therefore to be responsible for their own choices (4The victim attempts) to protect the legal interests of limited value. Only a to B residential fires, such as B in order to rescue the baby into the burned house, causality can be sure fire behavior and consequence between the death.

[comments] for the answer content no longer make analysis, direct reference to the Justice Department announced the answer.2012Compared to years judicial examination written answers and in criminal law, is the language of the characteristics of a change in detail, be concise and to the point. According to the Department of Justice announced the reference answer, the criminal law entitled847The word,2011Years450Word, writing increased by half. Overall, according to the Department of justice published reference answers (not including questions),2012Years4200The word around,2011Years3700The word around, writing increased. This requires the candidates should pay attention to the arrangements for the additional time, in case there is not enough time!!