The criminal law article construe (3)

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  • / Author: Aaron Lewis
The sixth section harm tax revenue collection crime

[method] key
Article 201st taxpayer forges, alters, hidden, or destroying books, accounting vouchers, account books shall be paid in more or not listed, less income, after being notified by the tax authorities to declare and refuses to report or filing false tax returns, fails to pay or underpays tax payable, tax evasion amount accounted for more than ten percent and less than thirty percent withholding tax and tax evasion amount in a million yuan less than one hundred thousand yuan, or because the tax is the tax authorities to give two administrative penalties and tax evasion, is less than three years imprisonment or criminal detention, and tax evasion amount more than five times the fine; tax evasion amount accounted for more than payable the thirty percent tax and tax evasion in the amount of one hundred thousand yuan, more than three years to seven years in prison, and tax evasion amount more than five times the amount of fines.
Withholding agents using the means mentioned in the preceding paragraph, fails to pay or underpays the buckle, collected the tax amount, the amount of tax payable above ten percent and the amount is in ten thousand yuan of above, shall be punished in accordance with the provisions of the preceding paragraph.
Many of the acts mentioned in the preceding two paragraphs, untreated, calculated in accordance with the total amount.

[method] the "criminal law" the 204th paragraph second, 211st to 212; in November 4, 2002, the Supreme People's Court on the trial of "tax evasion criminal case concrete application law interpretation of several issues"; the Supreme People's court 2002 April 8th "several issues concerning the specific application of the law of criminal cases of illegal production, sale the armed forces vehicles number explanation" third paragraph first.

[] mean decomposition
1 the provisions of this article is the crime of evading taxes. The subject of crime is a special subject, namely only for the taxpayer or withholding agent, but other people can become the accomplice. According to the provisions of article 211st, the unit can constitute the crime of tax evasion. 　
The objective behavior of crime of tax evasion for 2 actually not to pay, pay less tax payable or not to pay, pay less tax deduction, has received. According to the provisions of this and specific application of law in the "tax evasion criminal cases a number of issues of interpretation" in article first, there are five kinds of objective aspects of the crime, the legal ways, one is forged, altered, hidden, or destroying books and accounting vouchers, make real and direct basis of tax loss; two in the books more expenditure or not listed, less income, the tax payable shall be reduced; three is the refusal to declare tax to the tax authorities; the four is false tax return to the tax authorities; the five is pay tax, to leave export reports or other fraudulent means, defrauding the tax payment. Visible, tax evasion and tax evasion is different, tax evasion is a behavior intentionally, and actively implement the cause not to pay, pay less in taxes, and unconscious (non intentional 's) or by the tax authorities work negligence, that behavior is no fault to pay less, do not pay the fact.
3 tax evasion is the crime of amount, in the constituent elements, for tax evasion behavior must reach a certain amount of can constitute the crime of tax evasion. There are two kinds of statutory cases, one is the amount of tax evasion and tax payable shall be accounted for 10% in 10000 yuan of above, the other one is for tax is the tax authorities to give two administrative penalties and tax evasion , this situation does not necessarily require tax evasion amount is more than 10% and the standard of 10000 yuan. For many tax evasion behavior of untreated, calculated in accordance with the total amount.
4 according to the "about the specific application of law in the trial production, the sale of raw illegal armed forces of vehicles and other criminal cases some asked interpretations", pay attention to the qualitative behaviour of tax evasion a special form of this, that the armed forces of vehicles using forged or altered, theft, fails to pay or underpays the amount of vehicle purchase taxes, vehicle use tax and other taxes, if tax evasion amount accounted for more than ten percent of the amount of taxable and tax evasion amount is in ten thousand yuan of above, also in accordance with the provisions of article is directly to the crime of tax evasion conviction and punishment. (because of the judicial interpretation of criminal law is mainly made of 375TH "forged or altered, the sale of the Armed Forces Department team documents, seals" and " theft, robbery armed forces certificates, seals" explanation, and focus on the law, this is not our review process so this judicial interpretation note content here pointed out)



[method] key
Article two hundred and four to false export reports or other fraudulent means, defrauding export tax refund, the larger amount, less than five years in prison or detention defrauded tax refund, and more than five times the fine; if the amount is enormous or other circumstances are serious, five to ten years in prison the defrauded tax refund, and more than five times the fine; if the amount involved is especially huge or other especially serious circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, and defrauding of tax more than five times the amount of the fine or confiscation.
Taxpayers pay tax, by deceptive means mentioned in the preceding paragraph, defrauding the tax payment in accordance with the provisions of this law, the 201st convicted and punished; tax claim more than pay, shall be punished in accordance with the provisions of the preceding paragraph.

[method] "criminal law" the relevant 201st, 212; in September 9, 2002, the Supreme People's court "explain" concerning export tax rebate fraud criminal on Several Issues Concerning Application of law seventh, article 9.

[] mean decomposition
The provisions of article 1 is cheating export drawback. Crime of obtaining export tax drawback is not to pay taxes and take false export countries such as the means of cheating export tax rebates, or even to pay taxes, but acts defrauding export refund tax amount of the tax paid more than. In the subjective aspect, act with stealing the national tax purposes. Visible, the actual in export tax rebate part of tax fraud behavior.
2 note meaning the judicial interpretation of the two problems: one is the accomplished offense and the attempted limits on the interpretation of article seventh, the "implementation of defrauding export tax rebates, no actual export tax reimbursement, can be accomplished crime shall be given a lighter or mitigated punishment", which shows that the distinction between the accomplished offense and the attempted crime whether the actual out of state taxes; two and the other related with the implementation of crime processing principle, the interpretation of rule ninth: " implementation export tax rebate fraud crime, and constitute the special tax Xukai value added invoice crime and other crime, according to criminal law of heavier punishment shall be convicted".
3 distinguish the difference between this crime and the crime of evading taxes. The behavior no export products, also did not pay taxes, and false export defrauding export tax rebates naturally constitute cheating export drawback. People have to pay taxes, and the deception, cheating to pay taxes, in accordance with the provisions of article 2, constitute the crime of tax evasion. Because in this case, the behavior people cheat back to is oneself to pay taxes, equivalent to the tax payment shall be no tax, belongs to the tax evasion; but for tax payment claim more than pay, then set up export tax rebate fraud crime, the crime of evading taxes and the taxpayer also constitute the crime of defrauding export tax rebates, implement combined punishment for several crimes, this is the special provisions of law, is a special phenomenon.
4 according to the provisions of article 212nd, the export tax refund fraud conviction and sentencing, if a person is sentenced to a fine, confiscation of property punishment, in the execution of property punishment, priority shall be given to the tax authorities shall pursue the payment of taxes and the defrauded tax refund for exports, which follows the first recover the tax principle, then part of the criminals the surplus property, and then execute the property punishment.



[method] key
Article two hundred and nine counterfeit, or to make or sell forged, unauthorized manufacture can be used for defrauding export tax refunds, other invoices offset taxes, is less than three years imprisonment, criminal detention or control, impose a twenty thousand yuan more than two below one hundred thousand yuan fine; a great number of, three years more than seven years of fixed-term in prison, a fine of fifty thousand yuan five hundred thousand yuan fine; the number of special don't great, at more than seven years in prison, a fine of fifty thousand yuan and five hundred thousand yuan fine or confiscation of property. 　
Other invoice forgery, the unauthorized manufacture or sell the provisions of the preceding paragraph, the unauthorized manufacture counterfeit outside, is less than two years imprisonment, criminal detention or control, or impose a single ten thousand yuan fifty thousand yuan fine; if the circumstances are serious, two to seven years in prison, a fine of fifty thousand yuan to five hundred thousand yuan the following penalties.
The illegal sale can be used for defrauding export tax refunds, other invoices offset taxes, shall be punished in accordance with the provisions of the first paragraph.
Other invoice illegal sale of the third paragraph shall be punished according to the provisions of the second paragraph.

[method] "criminal law" the relevant 205th ~ 208.

[] mean decomposition
The 1 crimes involving tax invoices are clearly defined in the "criminal law" 205th article to 209th article, which relates to the invoice types has three kinds: one is value added tax special invoice; two is for export tax rebates, tax invoices; three other invoices.
2 relates to the special VAT invoices have falsely making out special invoices for value-added tax crime (205th), forges, sells counterfeit VAT special invoice crime (206th), the sale of the special VAT invoice illegal crime (207th), the illegal purchase of VAT invoices crime ( 208th). Visible, the norm of criminal law about the special VAT invoice is very fine, is related to the value added tax special ticket true, also involves the forged false VAT invoices, invoices, forgery, illegal sale, illegal purchase behavior one one corresponding charges. At the same time, according to the 208th paragraph second, the illegal purchase of special VAT invoices or purchases forged by value tax invoices and invoices or sold, it is implicated relation, should be in accordance with the corresponding felony or the crime of forging VAT receipts, sells forged special invoices for value-added tax, the crime of illegal sale of special VAT invoices convicted of a crime penalty at.
3 also, for export tax rebates, tax invoices, invoices, fake (illegal manufacturing), illegal sale behavior are one one relevant accusation, regulations of the principle of the relationship between these invoice crime should also follow the second paragraph 208th.
 The seventh section crimes of infringing on intellectual property rights

[method] key
Article 213rd without the owner of a registered trademark license, at the same use of a commodity and its registered trademark trademark identical, the plot serious, is less than three years imprisonment or criminal detention, or be fined; if the circumstances are especially serious, department for more than three years of less than seven years imprisonment, fined.

[method] "criminal law" the relevant 140th, 220.

[] mean decomposition
The provisions of article 1 is the crime of counterfeiting registered trademarks. According to the provisions of article 220th, individuals and units may constitute the crime. As a key point of the here is that counterfeiting is that without the owner of a registered trademark license, at the same use of a commodity and its registered trademark. Visible, the scope of trademark infringement here with "trademark law" in trademark infringement. circumference is different, the latter not only include the use of the same kind of commodities, including use in similar goods, including not only the use of a registered trademark of another person the same trademark, also included with the registered trademarks of others. Similar trademarks.
Pay attention to the limit of 2 and production, sales and shoddy goods crime. Between counterfeit registered trademarks and production, sales and shoddy goods there are often implicated relationship, this should be the spirit of "from a felony punishable" principle, to a crime, but not for punishment.



[method] key
Article 217th for the purpose of profit, one of the following copyright infringement case, the larger the amount of illegal gains or the he seriously plot, is less than three years imprisonment or criminal detention, or be fined; if the amount is huge or other especially serious circumstances, three to seven years in prison, fined:
(a) without permission from the copyright owner, reproducing and distributing a written work, music, film, television, video works, computer software and other works;
(two) published others enjoy the exclusive rights of books;
(three) without audio and video producers to license, copy and distribute the recording;
(four) production, sale of fake others sign art works.
[method] "criminal law" the relevant 218th, 220; the Supreme People's court in December 11, 1998, "interpretation of several issues about the specific application of law in the trial of criminal cases of illegal publications.".

[] mean decomposition
1 the provisions of this article is the crime of infringement of copyright. According to the provisions of article 220th, individuals and units may constitute the crime. Constitute a crime subjective must be based on the "profit" for the purpose of.
Has four kinds of behavior the statutory 2 the objective aspect: the two note is issued, a copy of others also belongs to the computer software copyright infringement; two is the production, sale of fake signatures of others works of art also belongs to the copyright infringement. It is easy for settlement of the crime of fraud.
3 according to the Supreme People's Court on the trial of criminal cases of illegal publications "the concrete application of law interpretation of several issues". fixed, the provisions of this article "the illegal income large amount" refers to the personal illegal income amount is in 50000 yuan of above, units of illegal income in the amount of 200000 yuan. In addition, according to the judicial interpretation, the perpetrators of the provisions of this copyright infringement, and implementation of 218th sales of the infringing copy behavior, should only be the crime of copyright infringement, not a combined punishment for several crimes. But if the perpetrators of the provisions of copyright infringement, and the implementation of sales of other of infringing copies (subjective knowledge is an infringing copy), which constitutes a crime, shall be.



[method] key
Article 219th in any of the following violations of commercial secrets, commercial secret rights caused a serious loss in three years, under to prison or detention, or be fined; if the consequences are especially serious, department for more than three years of less than seven years imprisonment, fined:
(a) by stealing, luring, coercion or any other improper means to acquire the business secrets of the right owner;
(two) disclosure, use or allow others to use the means of obtaining previous business secrets of the right owner;
(three) in violation of the agreement or against the obligee's request of keeping the commercial secrets, disclosure, use or permit others to use the business secret.
The seller knows or should know the acts mentioned in the preceding paragraph, access, use or disclosure of trade secrets of others, to the infringement on commercial secrets.
The term trade secrets in this article, is not known to the public, can bring economic benefits to the obligee, technology information and management information and the relevance of human rights to take security measures.
Alleged human rights this article, refers to the trade secret owner and the commercial secrets all license commercial secret use.

[method] the Supreme People's court in November 4, 1997 "" interpretation of several issues about the specific application of law law theft trial twelfth.

[] mean decomposition
1 the provisions of this article is the crime of infringement of business secret. According to the provisions of article 220th, individuals and units can constitute a crime. The object of the crime about the -- commercial secret, the third paragraph of this article, the legislative interpretation. At the same time, the trade secret owner including its rightful owner, also includes the owner's permission to use the business secrets of people.
2 according to the second paragraph of this article, the subjective aspect of the crime may be intentional, there is negligence. "Knowing" should know when is an intentional crime, but in the "should know" the case, with the mental state of negligence.
3 this crime objective aspect mainly for commercial secrets by stealing, luring, coercion, in violation of the agreement or other improper means to acquire the rights of the people, the provisions of this article of three cases. At the same time second also provides or should know, that is the commercial secrets by unfair means, and access to, use or disclosure, also constitute crime of infringing on business secrets. Visible, not only directly illegal access (it first hand) constitute a crime, the other is allowed to use, and then disclosed (i.e. it second-hand ones) also constitute the crime of.
4 note of stealing commercial secrets of the technical achievements to conviction, "according to the provisions of article sixth on several issues of specific application of the law theft trial interpretation" of twelfth, shall constitute a crime of infringement of business secret. Don't confuse the theft.


                                The eighth section crimes of disrupting market order

[method] key
Article 222nd advertisers, advertising agents and advertisement publishers, in violation of state regulations, using the advertisement to the commodity or service provided for false propaganda, if the circumstances are serious, is less than two years imprisonment or criminal detention, or be fined.

[method] "criminal law" the relevant 266th, 231; Ninth "Anti Unfair Competition Law".

[] mean decomposition
1 the provisions of this article is the crime of false advertising. The subject of crime is a special subject, namely only for advertisers, advertising operators and advertising cloth. According to article 231st, the unit can become the subject of the crime. Is a prominent feature of this crime behavior mode with the use of false advertising is not true for goods or services.
2 pay attention to distinguish the difference between this crime and the 266th crime of fraud, the key difference between the two lies in understanding human behavior is what . False advertising false advertising sin is inflated commodity effectiveness, to cheat and induce consumers, the purpose is to sell goods (to enable consumers to buy cheap goods or accept poor quality of service); the form of advertising. Shi fraud crime, refers to behavior person has the purpose of illegal possession of property, the use of advertising for fraud., does not exist to provide consumers with goods or services. Visible, advertising if the Lord does not exist real operation or service activities, substantive activities or simply have no ability to wide report said, purely for the purpose of illegal possession of other's property deliberately conceal the truth, fraud should be treated.



[method] key
Article 223rd the collusion bidding, damage the tenderer or other bidders interests, if the circumstances are serious , is less than three years imprisonment or criminal detention, or be fined.
Bidders collude with the tenderee, damage the state, collective, and the legitimate interests of citizens, shall be punished in accordance with the provisions of the preceding paragraph.

[] mean decomposition
The provisions of this article is the cahoots bids crime. The key to determining this crime is the collusion bidding behavior. According to the provisions of this article there are two different forms of the collusion bidding behavior, accordingly constitute a crime conditions are different:
One is between the bidders and bidders collude with bidding. This tender is tender and other damage to the interests of the first paragraph of this article, this behavior if the circumstances are serious, to constitute a crime.
Two is between bidders collude with the tenderee. This tender damage is mainly the national, collective benefits, legal and does not explicitly require serious.



[method] key
Article two hundred and twenty-four in any of the following circumstances, for the purpose of illegal possession, in the process of signing and fulfilling the contract, for the party property, large amount of, is less than three years imprisonment or criminal detention, or be fined; tremendous amount or other serious circumstances, at more than three years to ten years in prison, and shall also be fined; if the amount involved is especially huge or other especially serious circumstances , department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property:
(a) in the fictional units or infringe upon the name of the contract;
(two) secured by forged, altered, or invalid negotiable instruments or other false certificates of property rights as;
(three) no actual ability to perform, to fulfill the contract or small part to perform the contract, the other party into continuing to sign and fulfill the contract;
(four) receiving the other party goods, payment, advance payment guarantee property or go into hiding after;
(five) with other methods for the other party property.

[] "criminal law" related articles 167th, 231, 266, 406.

[] mean decomposition
The provisions of article 1 is the crime of contract fraud. According to the provisions of article 231st, individuals and units may constitute the subject of this crime. In the subjective side surface with "illegal possession of purpose". The provisions of this article five legal concrete behavior, needs to pay attention, " fraudulent use of the name of others" contract may constitute the crime of contract fraud, but don't confuse the "borrow" the name of another person to sign the contract, two in law is different from the nature.
2 pay attention to this crime and crime of fraud limit circle. In essence, the crime of contract fraud is a specific crime of fraud and crime of fraud, the difference lies in the fact that it happened in a particular activity, using specific means, namely, the performance of the contract signed by way of cheat. Between 266th visible in this article and the provisions of this crime is special law and general law, two belong to the overlap of articles of law, shall follow the principle of special law.
3 note behavior during the execution of the contract fraud, if cheated object is the state-owned nature of the unit, and the object being cheated on subjective exists fault (fault), then the object being cheated according to different nature, were also form different crime, sign namely, shoe for contract dereliction of duty crime (cheated article 167th) or the staff of state organs to perform the contract signed, the crime of dereliction and being deceived (section 406).
4 please note the difference between the crime of contract fraud, contract disputes, the former behavior has the legal form, should note consciousness don't.



[method] key
Article 225th violation of the provisions of the state, has one of the following illegal business behavior, disturb the market order, the circumstances are serious, five years fixed-term or criminal detention, or impose a single illegal income more than five times the fine; if the circumstances are especially serious, department for more than five years in prison, impose illegal income more than five times the amount of the fine or confiscation:
(a) without permission management laws, administrative regulations of the monopoly, monopoly goods or other restrictions on the sale of the goods;
(two) the provisions approved sale of import and export licenses, import and export certificates of origin and other laws, administrative rules and regulations of the business license or document;
(three) other serious illegal acts disrupting the market order.

[the law] National People's Congress on December 29, 1998 "on the punishment, purchase foreign exchange evasion and illegal trade in foreign exchange crime decided" fourth; the Supreme People's court "interpretation" in December 11, 1998, several issues about the specific application of law in the trial of criminal cases of illegal publications eleventh, Fifteenth; Standing Committee of National People's Congress of the people's Republic of China in December 25, 1999 "China criminal law amendment" eighth; the Supreme People's court in April 28, 2000 "on the trial of law interpretation of several cases of disrupt telecommunications market order" article first the Supreme People's court; March 29, 2001 "about serious MLM or disguised pyramid selling how qualitative issues concerning.

[] mean decomposition
1 the provisions of this article is the crime of illegal business operation. According to the provisions of article 231st, individuals and units may constitute the subject of this crime. The crime of illegal business is the essence seriously disrupt the market order of the illegal business activities, the object of crime is state monopoly, monopoly and restrictions on the sale of goods and activities without approval to engage in business activities.
2 this crime is the criminal law revised in 1997 based on the abolition of crime is play the market, but the Constitution and legislation, judicial in recent years interpretation suggests, this crime still belongs to a "small pocket crime". Since the implementation of the new criminal law within five or six years, about the crime of illegal business operation will be expanded five or six times, this is the master key of the:
One is "on the punishment, purchase foreign exchange evasion and illegal trading of foreign criminal decision" the provisions of article fourth, outside of the state designated trading venues, disrupt the city of illegal trading of foreign field order, if the circumstances are serious, the crime of illegal business operations;
The two is about the specific application of the law "if stem question explanation" article eleventh, the provisions of article fifteenth trial of criminal cases of illegal publications, illegal publications, printing, copying, distribution, serious disturbance chaotic social order and disrupting the market order, to the illegal business crime shall be convicted and punished;
The three National People's Congress Standing Committee "criminal law amendment " provisions of article eighth, unless approved by the competent departments of the state, illegal operation of securities, futures and insurance business, which "criminal law" article 225th of the crime of illegal business operation;
Four is "the concrete application of law concerning disrupt telecommunications market order case if stem problems in the interpretation of" the provisions of article first, in violation of state regulations, to take international private line, switching equipment or other methods , authorization management of the international telecommunication business or Hong Kong and Macao for-profit telecommunications business activities, disrupt telecommunications market order, if the circumstances are serious the crime of illegal business operation, to be punished;
Five is the "reply" Regulations on how serious MLM or disguised pyramid behavior qualitative asked problem, for the illegal pyramid scheme or disguised pyramid schemes, if the circumstances are serious, disrupt the market order, shall be punished by the crime of illegal business operation .

[] don't confuse
Distinguish the difference between the crime of illegal business operation and "criminal law" 165th illegal crime of the same business, not to be confused with. Although the two are an illegal business behavior, but the crime of illegal business operations is limited to State-Owned Company, enterprise's board of directors, the manager took advantage of his position to facilitate their business operations, or others and his own company, business similar to the business, with a specific.



[method] key
227th Whoever forges or reselling tickets, tickets, stamps, or other valuable ticket, a large amount of , two years fixed-term, criminal detention or control, or impose a single ticket price is more than five times the fine; large, more than two years to seven years in prison the value of the tickets, and more than five times the.
Speculative reselling of tickets, tickets, if the circumstances are serious, is less than three years imprisonment, criminal detention or control, or impose a single ticket price is more than five times the amount of fines.

[method] the Supreme People's court in September 2, 1999 "on the trial of criminal cases reselling tickets off to explain the problem".

[] mean decomposition
The provisions of the first paragraph of this article is the 1 of forging, reselling the counterfeit valuable tickets crime, the second paragraph is reselling tickets, tickets crime. According to the provisions of article 231st, individuals and units may constitute the crime subject.
2 first section of forging, reselling the counterfeit valuable tickets crime crime object for the valuable ticket, different from the "criminal law" the 177th "financial instruments", is also different from the 178's "securities", its scope includes the tickets, tickets, stamps and other relevant departments issued by the manufacture of certain value, circulation, use in a range of books surface vouchers, such as plane tickets, etc.. But the crime object second is only tickets, tickets, and for the real, effective car ferry. Visible, if the perpetrator scalping tickets is false, false tickets, ticket reselling tickets is indefinite, crime, and should be the first paragraph of this article reselling valuable ticket card crimes.
3 according to the "on the trial of criminal cases of reselling tickets, fares and interpretation", high priced ticket or resells sit seats, sleeper signed name and order tickets vouchers, face amount is in 5000 yuan of above, or illegal profits in the amount of 2000 yuan, can constitute the crime of Scalping Train tickets. The judicial interpretation also stipulates, once because of reselling tickets have security punishment two times or the labor rearing for more than one time, two years and reselling tickets, constitute the crime of Scalping Train tickets, shall be punished severely according to law.



[method] key
Intermediary 229th bear the assets appraisal, capital verification, validation, accounting, auditing, legal services and other functions of the staff deliberately provides false documents, if the circumstances are serious, is less than five years imprisonment or criminal detention, and shall also be fined.
The provisions of the preceding paragraph, extort or accept bribes, the crime mentioned in the preceding paragraph, the Department for more than five years to ten years in prison, fined.
The provisions of the first paragraph of the staff, seriously irresponsible, issued documents have significant inaccuracies, resulting in serious consequences, at three years fixed-term or criminal detention, or be fined.

[method] "criminal law" the relevant article 163rd, article 198th paragraph fourth, 385th, 399th third ; the Supreme People's court, the Supreme People's Procuratorate March 25th 2002 year "on the implementation of the people's Republic of China Criminal Law '' of the supplementary provisions to determine charges".

[] mean decomposition
1 the provisions of the preceding two paragraphs is "the crime of providing false documents", the third paragraph is "major issue false documents sin" (the judicial interpretation to amend the original names). The provisions of this article "intermediary organizations" including charge of assets assessment, verification, validation, accounting, auditing, legal services and other responsible organization personnel, at the same time, the root according to the provisions of article 231st, if these intermediary organizations to implement the crime, can also constitute.
2 if the intermediary personnel extort or accept bribes, and others for false documents, according to the provisions of the second paragraph of this article, shall be as the first paragraph: "the crime of providing false documents" of the aggregated consequential offense, namely to this kind of behavior directly "provides false documents, this crime" is a method cases, because ask for property or illegally accept others' property behavior may be lawfully formed 163rd companies, corporate officers taking bribes or 385th of the crime of bribery, it is implicated offense (i.e. between bribery and provides false documentation implicated), according to the 399th paragraph third vertical law spirit, it seems to be one felony, but the second paragraph of this article does not require judicial choice of legislation directly specifies how the conviction and punishment. Furthermore, similar and 198th of the fourth paragraph, they have certain similarities in behavior, but at different results. Visible, the second paragraph of this article is a special case of legislation, should be noted.
3 intermediary organizations or intermediary organization itself either intentional or negligent (issued) provides false documents, may constitute a crime, but the charges were different, "the crime of providing false documents" and "major issue false documents crimes".

The fourth chapter encroaches upon the citizen personal rights, democratic rights of crime


[method] key
236th by violence, coercion or other means to rape women, three to ten years in prison.
* prostitution of young girls under the age of fourteen, with a strong * theory, he shall be given a heavier punishment.
Rape women, * prostitution young girl, one of the following circumstances, place above ten years imprisonment, life imprisonment or death:
(a) rape women, * prostitution statutory aggravated;
(two) rape women, * prostitution young girl people;
(three) in public places and public rape women;
(four) more than two people round *;
(five) cause the victim serious injury, death or other serious consequences.

[method]
"Criminal law" the 240th, 358; the Supreme People's Court on February 13, 2000 "close to the trial strong * the relevant issues of the case to explain"; the Supreme People's court, the Supreme People's Procuratorate March 25th 2002 "about execution 'of the people's Republic of China Criminal Law' of the supplementary provisions to determine charges"; the Supreme People's Court on January 8, 2003 "acts are not knowing that is under the age of fourteen young girls, whether rape approved the issue of consensual sex".

[] mean decomposition
1 the provisions of this article important on charges of rape (about crime judicial interpretation note the above two jointly issued clear rules will cancel * prostitution young girl sin such a crime, be * prostitution young girl acts as a strong * a specific statutory crime and other crime is no longer alone). Strong * nature of crime lies in the violation of women's will forcibly and illegally behavior, using hand whether violence, coercion or other means, these means have killed women do not know against, can not resist, or dare not rebel characteristics, victims are not against, or can't resist, or not resistance is considered constant rape was established and the key.
2* is not only our statutory rape of a particular behavior, but also rape lawful heavier circumstances. The object can only be under the age of 1 4 years old young girl, the young girl regardless of whether agree, is not to "against their will" is essential. Subjective aspect is the person who knowingly, general requirements (including may know) the other is under the age of 14 young girls. Based on the replied, behavior is do not know each other is under the age of fourteen young girls, the sex was consensual, causing no serious consequences, the circumstances are obviously minor, was not deemed a crime. These are different from the general rape.
3 note five statutory rape of the aggregated consequential offense, to imprisonment, life imprisonment and death. legal situation within the range of punishment in 10 years.
4 pay attention to in the process of the implementation of specific crime, rape women behavior does not separate conviction and other more serious crimes contained situation:
One is in the process of crime of abducting and trafficking in women's, strong * abducted women, shall be as a crime, the crime of abducting and trafficking in women aggregated consequential offense;
Two is in the process of crime forcing others into prostitution, if the strong means * *, which is a strong after forcing victims of prostitution, rape behavior should be forced, the organization prostitution crime of the aggregated consequential offense, and indefinite rape.
5 according to the "Regulations on the trial of strong * the relevant issues of the case explanation", for the full 14 years of age under the age of 16, and precocious sexual relations, which constitutes a crime, in accordance with the "criminal law" article seventeenth, 236th paragraph second, with strong * convicted and punished, sex and relationships for the young girl, minor, causing no serious consequences, can not be considered.
6 people both the implementation of rape women behavior and the implementation of the statutory * prostitution behavior, according to "on the trial of cases concerning strong * issues of interpretation", should be based on strong * a crime shall be given a heavier punishment, not punishment problem.



[method] key
238th illegal detention of a person or other unlawful deprivation of the personal freedom of others, less than three years, criminal detention, prison term control or deprivation of political rights. Having beaten, insult the plot, he shall be given a heavier punishment.
The crime mentioned in the preceding paragraph, causing serious injury, three years and ten years in prison; causes a person's death, more than ten years in prison. The use of violence cause disability, death, in accordance with the provisions of law 234Th, article 232nd convicted and punished.
For repayment of the debt illegal arrest, detention of a person, shall be punished in accordance with the provisions of the preceding two paragraphs.
The State functionary commits the crime in the preceding three paragraphs, in accordance with the provisions of the preceding three paragraphs shall be given a heavier punishment.

[method]
"Criminal law" the 241st paragraph third; the Supreme People's court "interpretation of June 30, 2000 about no protection for legal debt illegal detention of a person how to determine the act of problems".

[] mean decomposition
1 the provisions of this article is the crime of illegal detention. The most essential feature of the crime of illegal detention is illegal to make others body is strong system constraints in a limited space, making it impossible to control his body out of the range of space. Visible, whether the actor to take violent force, whether bundling and detention where does not affect the composition.
2 note in the illegal detention process, causing the victim to injury behavior and how to deal with. According to the second paragraph of this article, paragraph third of the rules , this case should be treated differently, if the behavior of people in the illegal detention of process, the use of violence cause disability, death, that people know the victim casualties subjective, should be the crime of intentional injury, intentional homicide conviction and punishment in criminal law, this the theory is called the crime transformation (note, here the disabled should refer to the damage degree for heavy damage, moreover, the situation constant intentional homicide crime or the crime of intentional injury crime and non crime). If the behavior of people in the illegal detention of causing serious injury or death, according to the provisions of the second paragraph of this article, should be regarded as the crime of illegal detention of the aggravated consequential offence, the here seriously injured or death, is the result of the implementation of illegal deprivation of personal liberty of others, not to deliberately cause he seriously injured or death (including the victim Dutch act.
3 in order to ask for a debt and illegal detention, arrest ban others, still with unlawful detention crime. Here for debt, including legal debt, including illegal debt. In this regard, the above-mentioned "on no protection for legal debt illegal detention of a person how to determine the act of issues of interpretation" made clear, namely human behavior for usury, debts, the law does not protect debts, illegal detention, detention of a person, in accordance with the provisions of article 238th of the crime of conviction and punishment.
4 note illegal detention is a continued offence (continuous offence), namely the behavior during the recovery period from the beginning to the victim's personal freedom is always in continue mode. The duration decides the difference between the severity of behavior and then decided to crime of illegal detention and illegal detention behavior, on the other hand also affects the calculation of the limitation of prosecution, shall be from the acts of the end date of the limitation of prosecution .



[method] key
Article 239th to extort property for the purpose of kidnapping, or kidnapping others as hostages, the agency for more than ten years in prison or life imprisonment, and concurrently be sentenced to a fine or confiscation of property; the death of the kidnapped person or kills the kidnapped person, the death penalty, also be sentenced to confiscation of property.
Whoever steals an infant for extortion, shall be punished in accordance with the provisions of the preceding paragraph.

[method] "criminal law" the relevant 232nd; the Supreme People's court "interpretation on June 30, 2000 for claim the law does not protect debt illegal detention of a person how to determine the act of problems".

[] mean decomposition
1 the provisions of this article is the crime of kidnapping. Kidnapping is a kind of method, the aim of the behavior in order to extortion, or demanding other illegal. For property or illegal request should be put forward to the kidnapped relatives, where the unit or its
He interested persons to submit, to threaten them, ask them to meet their conditions.
2 kidnapping behavior, "criminal law" provisions of article 239th of the three: one is kidnapping extortion; two is the kidnapping others as hostages; three is for extortion infant theft (i.e. to infants as a hostage, only constitute the crime of kidnapping in peace to steal even kidnapping way can). Note that for this crime form for, as long as the check Ming behavior is on the purpose for , the implement of the kidnapping, which constitutes a crime, regardless of their purpose is reached.
3 in the course, cause the abductees death, whether it is caused by death of the kidnapped person or because not to intentionally kills the kidnapped person and due to negligence, according to the crime of kidnapping crime treatment. Note in the intentional killing of occasions, although the character is also in line with the independent crime of intentional homicide, but this is defined as kidnapping crime, sentenced to capital punishment -- the death penalty. This situation in the criminal law theory called inclusion crime, namely crime of kidnapping inclusive kills the kidnapped person of intentional homicide. But if in the course of implementation, the other prisoners crimes, such as rape the kidnapped women, should be rape and kidnapping crime, a combined punishment for several crimes.
4 special attention is needed, resulting in death of the kidnapped person or kills the kidnapped person the abduction process, in the conviction as theory of the above only specify the kidnapping crime, direct death penalty in punishment, and the confiscation of property, this is kind of punishment an absolute, not need justice choice, with "criminal law" the 121st hijacking in case to heavy injury, death or serious damage to the aircraft death penalty, is absolute, it is a special case of legislation.
Whether the 5 extortion purposes including for illegal debt such as gambling debts, which in the past has the very great dispute . According to the "Regulations on customs no protection for legal debt illegal detention of a person how to determine the act of issues of interpretation", for this demanding usury, debts, the law does not protect the debt, the illegal seizure, detention (including kidnapping), we should construct into "criminal law" article 238th the crime of illegal detention, but not the crime of kidnapping.

[] don't confuse
1 for debt kidnapping, setting the crime of illegal detention.
2 the difference between this crime and the crime of blackmail and impose exactions on mainly lies in the latter crime object is the same, but the former, blackmail kidnapping people and be are not the same person, behavior and kidnapping of direct power control or deprivation or restriction of the freedom of the person, and blackmail and impose exactions on basic does not exist such behavior characteristics the.



[method] key
Article 240th of abducting and trafficking in women, children, five to ten years in prison, and shall also be fined; any of the following circumstances one , department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property; if the circumstances are especially serious, the death penalty, also be sentenced to confiscation of property:
(a) the first molecular group of abducting and trafficking in women, children;
(two) the trafficking of women and children, three people;
(three) * prostitution abducted women;
(four) deception, forcing abducted women to engage in prostitution or those selling abducted women to prostitution;
(five) for the purpose of selling, the use of violence, coercion or anesthesia abduction of women, children;
(six) for the purpose of selling, stealing a baby;
(seven) causing abducted women, children or their relatives serious injury, death or other serious consequences;
(eight) women, children will be sold to overseas.
Trafficking in women and children, is for the purpose of selling, a kidnapping, kidnapping, buying, trafficking, transport, transfer one of the women, children's behavior.

[] "criminal law correlation law" article 241st paragraph fifth; the Supreme People's Court on December 23, 1999 "close to the trial of cases of trafficking in women problems related to the interpretation of the law applicable".

[] mean decomposition
The provisions of article 1 is the crime of trafficking in women and children. The so-called abducted, is for the purpose of selling, for women, children, kidnapping, abduction, trafficking, transporting, buying transit and other six kinds of acts, can constitute a crime. The , the infant can only constitute a crime to steal way. Note, constitute a crime should not by whether it goes against the victims -- abducted women, children will for the transfer, provided that the act is to seek sudden profit on women, children's sale price, it should be to the offenses.
The object of this crime is limited to 2 women, children, and does not include the full 14 years of age man. According to the "on hearing the case law applicable to trafficking in women piece about issues of interpretation", here the "women", which includes China nationality women, including women with foreign nationality and statelessness, even if is not selling foreign women's identity, nor affect the conviction and sentencing. At the same time, according to the judicial interpretation, a foreigner or stateless person to sell foreign women to be found within the territory of China, shall be in accordance with the provisions of the criminal law " " article sixth of the criminal law of our country, is the conviction and punishment. 　
3 note eight statutory aggravating circumstances of crime of abducting and trafficking in women and children (i.e., in more than 10 years of fixed-term imprisonment, in punishment, if the circumstances are especially serious, the death penalty, and the confiscation of property).
4 attention to the provisions of crime of abducting and trafficking in women and inclusive crime situation, namely in the crime of abducting and trafficking in women in the process, behavior and strong * abducted women, lure, or forcing abducted women into prostitution, trafficking in women only set a crime crime of abducting and trafficking in women, but belongs to the crime of the aggregated consequential offense, should be are to be sentenced to life imprisonment, in more than 10 years, or even the death penalty within the range of punishment, and no longer and rape, seduction prostitution, forced prostitution crimes.
5 pay attention to other crimes into trafficking in women and children, the crime situation: "criminal law" the 241st paragraph fifth, to be abducted woman, child and sells, should decide the crime of abducting and trafficking in women and children, and no longer be buying abducted women and children, the crime.