The criminal law article construe (6)

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  • / Author: Aaron Lewis
[method] key
294th organization, leadership and actively participate in the use of violence, threats or other means of illegal crime, organized crime activities , dominate the party, do evil, oppression, harm people, serious damage to the economic, social life order of the underworld organization, three to ten years in prison; in the other, less than three years, criminal detention, criminal acts period control or deprivation of political rights.
Mafia abroad to the development staff members within the territory of the people's Republic of China, three to ten years in prison.
Two paragraphs are committed and other crimes shall be punished in accordance with the provisions, the combined punishment for several crimes.
Workers of state organs who harbored the underworld property organization, or connive illegal and criminal activities of the organization , is less than three years imprisonment, criminal detention or deprivation of political rights; if the circumstances are serious, three to ten years in prison.

[method] "criminal law" the relevant 120th, 310; National People's Congress on April 28, 2002 "of article 294th of the criminal law to a interpretation".

[] mean decomposition
The provisions of the first paragraph of this article is the 1 organization, leadership, to participate in the organization with underworld society nature. According to the Standing Committee of the NPC Standing law interpretation, "Underworld Organization" should have several characteristics: one is that in terms of organization: organized crime is stable, basically fixed backbone members, is the organizer and leader of clear; the two is to obtain economic benefits as the basic purpose, has certain economic power; three is the criminal means, by means of violence or threat, as the basic means, with multiple, oppression, harming the masses; four is a regional or industry, forming an illegal control or significant influence, and often use harbor national staff or connivance.
2 black social organization is the advanced form of organized crime, and the underworld organization is the organization to black and social development of a Du form, pay attention to the different Mafia organized crime and "criminal law" article 120th of the terrorist organization, terrorist crime has some political or social purpose, criminal behavior performance for the murder, explosion, kidnapping and other violent crime, and the underworld nature organization criminal intent is wide and the macroscopic, and to obtain illegal economic interests, crime has diversity and regional.
The provisions of the 3 paragraph second is the entry of the crime of underworld society organization. This is the overseas underworld society organization entering the behavior of its members. note, here is the underworld organization, and the nature of black societies than section first.
4, leadership, organizational behavior of people in the underworld property organization or entry underworld society organization and the organization and implementation of other crime, in accordance with the provisions of the third paragraph of this article, should be combined punishment for several crimes, completely consistent with this with the "criminal law" the second paragraph of the provisions in the 120th.
The provisions of the 5 paragraph fourth is a shield, connive. The subject of this crime can only be the staff of state organs. A note meaning it doesn't need the personnel of state organs using the convenience of duty. Object shielding and abetting the crime specific, this with the "criminal law" the provisions of article 310th of the harbor crime is different, special law.



[method] key
And the 300th group superstitious sects, cults or uses superstition to undermine the implementation of national laws, administrative regulations, department for more than three years of imprisonment less than seven years; if the circumstances are especially serious, department for more than seven years in prison.
Organize and utilize the superstitious sects, cults or uses superstition to cheat others, causing death, shall be punished in accordance with the provisions of the preceding paragraph.
Organize and utilize the superstitious sects, cults or uses superstition * prostitution woman, fraud, respectively, in accordance with the provisions of law 203rd article sixteen, article 266th convicted and punished.
[method] the Supreme People's court, the Supreme People's Procuratorate October 9, 1999 "about the group fabric and several issues of specific application of the law by the cult's criminal case explanation"; the Supreme People's court, the Supreme People's Procuratorate June 4, 2001 "interpretation concerning the organization and of the application of law to the cult's criminal cases (two )".
[] mean decomposition
1 the first paragraph of this article is organized by superstitious sects, cults, superstition to undermine the implementation of the laws, the. Here the "legal" refers to the laws and administrative regulations. "For the organization and several issues of specific application of law by cult crime cases the interpretation of" second stipulates six kinds of main situation of the objective aspect of this crime, including all the siege, attack on the state organs, illegal marches, demonstrations and other disturbing social order behavior.
2 the second paragraph of this article is organized by superstitious sects, cults, superstition, by causing death. Among them, organization and using a cult organization to deceive people to death, according to the "Regulations on handling organization and several issues of specific application of the law by the cult's criminal cases the interpretation of" the third regulation, is refers to the organization and the cult of manufacturing, spread superstitious fallacies, deceive the members or other people, self mutilation, hunger strike self abuse behaviors or stop the patients to normal treatment, causing death case.
And the 3 group, or religious organizations or uses superstition and fallacies, lure, stress, cheat or its means * prostitution women, young girls, to rape conviction or * our offense is statutory, if by deceptive means, for the property of others, to defraud the conviction and punishment.
According to the "4 concerning organization and several issues of specific application of the law by the cult's criminal case explanation", cult manufacturing, spread superstitious fallacies by tissue and , instigating, stress its members or other people Dutch act, self injurious behavior, in order to murder or the crime of intentional injury; organize and use cults, organization, planning, implementation, incite secession, breaking the unity bad state or subversion of state power and overthrow the socialist system, according to the criminal law of the first chapter of corresponding harm national security crime conviction.



[method] key
Article 303rd for the purpose of profit, gambling, casino or gambling industry, three years of fixed-term acts punishment, criminal detention or control, and shall also be fined.

[] mean decomposition
The provisions of article 1 is gambling crime. Constitute the crime of gambling must be for the purpose of profit in the subjective, the same with the general entertainment phase difference. The subject of this crime is actually made up of two kinds of people: one is "gambling" casino, others gathered organization, provide places and profited from it, for their own participation in gambling, does not affect the establishment of this crime; the two is "gambler", namely the gambling often industry. General gambling involvement can be punished as a crime, but not processing.
Objective 2 crime includes three ways: one is to open a casino gambling; two; three is gambling industry. General gambling should not be treated as a crime.


                                    In section second, crime of obstruction of Justice


[method] key
305th in the criminal proceedings, witnesses, appraisers, record, translation has an important relationship with the case of the plot , so do false proof, identification, recording, translation, meant to harm others or conceal evidence, is less than three years imprisonment or criminal detention; if the circumstances are serious, three more than seven years of fixed-term.

[] "criminal law correlation law" article 243rd.

[] mean decomposition
1 the provisions of this article shall be perjury. The subject of the crime is a specific, limited to the witness in criminal procedure, identification, record, translation. The occurrence conditions of time and space is given, which is confined to criminal activities.
False evidence, 2 people made the identification, recording, translation is a important relationship with the case of the plot. An actor has set up special purpose others or conceal evidence harboring criminals.
3 distinguish the difference between this crime and the crime of false accusation. The subject of this crime is the four kind of specific personnel, and the crime of false accusation subject is general subject; the only to provide false evidence in there is an important relationship with the case of the individual plots, and false accusation is made up the whole criminal facts; the discovery in the criminal process, and the crime of false accusation behavior is is implemented in the investigation before, and was the cause of the investigation.



[method] key
306th in the criminal procedure, the defenders and agents ad litem, destroy or forge evidence, to help the parties destroy, pseudo made card according to, threats, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, three years more than seven years of fixed-term in prison.
The defenders and agents ad litem, provide, produce, citing witnesses testimony or other evidence inconsistent with the facts, not forged intentionally, not belong to forge evidence.

[] "criminal law correlation law" article 307th.

[] mean decomposition
1 the provisions of this article is the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime. The subject of the crime is only limited to the criminal defendants and criminal litigation agent (but not only lawyers, non attorney defenders and agents ad litem, also can constitute a crime). The time condition is certain, that is only limited to the criminal activities.
The specific features of 2 the objective aspect for three kinds of behavior: one is the direct implementation of destruction, forged evidence behavior; two is to help help the parties destroy, forged evidence behavior (including direct help the parties to implement destroy or forge evidence, including indirect help the parties destroy or falsify evidence,); three is threatening, luring witnesses change testimony against the facts or perjury.



[method] key
307th by violence, threat, suborn witnesses and other methods to prevent or inciting others to commit perjury, is less than three years imprisonment or criminal detention; if the circumstances are serious, three years more than seven years of fixed-term.
To help the parties destroy or forge evidence, if the circumstances are serious, is less than three years imprisonment or criminal detention.
The judicial personnel commits the crime in the preceding two paragraphs, shall be given a heavier punishment.

[] "criminal law correlation law" article 306th.

[] mean decomposition
Provisions of the first paragraph of this article, 1 is the crime of obstruction of evidence. The occurrence time conditions including criminal lawsuit activity, the litigation process also includes people things, economy, maritime, administrative cases. Act according to the object is the witness, by violence, threat, bribery and other methods to make witness not testifying testifying, dare not or unwilling to testify, there are two kinds of prejudice to testify the specific behavior way, namely stop to witness and witness perjury.
The provisions of the 2 of the second paragraph of this article is to help destroy, crime of fabricating evidence. Act according to the object is evidence, including criminal procedure permits according to, including civil, economic, administrative litigation evidence. If I destroy or falsify evidence, may behave as an afterthought not punishable behavior does not constitute a crime, but help the implementation of this kind of behavior should constitute the crime.

[] don't confuse
1 note two crime and 306th the provisions of this article shall the defenders and agents ad litem, destroy or forge evidence, obstruction of witnessing the difference , conditions of time and space, two occurred in the main requirements are different, but the Constitution also coincides with the place. If the defender, agent ad litem in criminal proceedings, threatening, luring witnesses (such as suborning) or help help the parties destroy, forged evidence, overlap of articles of law occurred two crime and the latter the provisions of this article. Among them, this article belongs to the common law, which belongs to the special law, in accordance with the special law is superior to common law principles, should press 306 defenders and agents ad litem, destruction of evidence, evidence, conviction and Prejudice witness to the criminal punishment.
Line of 2 pay attention to testify against the 308th witnesses and take revenge. Although the object two behavior for all the witness, but the former is occurred in appearing in court as a witness before and the litigation process, while the latter is implemented to provide testimony on the witness, the witness's testimony in court cases and applied to the infringement behavior. Furthermore, the storm force, stress behavior in my prejudice to testify, witness, and take revenge of perjury is not limited to, can also be through his witness friends and relatives, destroy its property, reputation and other ways.
[method] key
310th knowing it is a crime and provides a hiding place, for the property, to help them escape or false proof shield , is less than three years imprisonment, criminal detention or control; if the circumstances are serious, three to ten years in prison.
The crime mentioned in the preceding paragraph, conspirators, to be punished as a joint crime.

[] "criminal law correlation law" 294th paragraph fourth, 349th, 362nd.

[] mean decomposition
In this article, 1 is harboring harboring criminals. Subjective act knowing it is a crime and deliberately to conceal or cover up. Behavior including harbor and harbor, the former refers to the crime person provides a hiding place, property , help them escape behavior; the latter crime false proof, to escape the legal sanction behavior (such as typical conceal evidence, forge or destroy the scene of the crime, etc.). Mainly for visible harbor is the crime molecular himself, while the shielding action is mainly for evidence of a crime. If the actors just in front of a behavior, should decide the crime of harboring a criminal. If only one behavior, should decide the crime of shielding. If both the harbor and harbor (for the same crime committed molecular), is a crime, but crime should be harboring, shielding crime.
The object of this crime is a crime 2 specific, that is limited to the implementation of criminal acts, which includes both the culprit, also including convict (such as held in the prison escape). But there is one exception, namely, the hotel industry, catering industry, culture and entertainment industry, taxi companies and other units of the staff, in the public security organs and prostitution, whoring activities, as criminals and ventilation letter, if the circumstances are serious, can constitute the crime of shielding, this is "clear provisions of the criminal law." 362 one, is a special case because legislation, prostitution, whoring activities are not crime, mostly as a kind of illegal activity. This kind of feeling condition, behavior of shield, help object is not necessarily the criminals, but still constitute the crime of shielding.
3 note if the object behavior for harboring criminals smuggling, trafficking in, transport, manufacturing of narcotic drugs in this particular object, should not decide to cover up the crime, and should be harboring drug criminals 349th sins. In addition, if the criminals who work in state organs for the underworld property organization, also not to cover up the crime, but the into "criminal law" the fourth paragraph 294th shield underworld nature organization crime . The two is the special provisions.
4 distinguish the difference between this crime and joint crime. In the crime of harboring, shielding action, must be implemented after the criminal crime, and with the criminals without prior conspiracy. If the premeditated crime, in criminal and to be harboring, shielding, according to the provisions of the second paragraph of this article, shall be as criminals for specific crime accomplice.



[method] key
312nd knowing that the proceeds of crime and the stolen goods to be harboring, transfer, acquisition or to sell, at three years fixed-term, criminal detention or control, or be fined.

[method] "criminal law" the relevant 191st, 349.

[] mean decomposition
The provisions of article 1 is harboring, transfer, acquisition, sale of stolen goods. Subjective behavior must know is the proceeds of crime and the stolen goods to be harboring, transfer, acquisition or to sell. So knowing that, according to the relevant provisions of the Supreme People's court, the people's Procuratorate 1992 December "explain" some questions about the specific application of law in the handling of cases of theft, as long as they can prove that the actor knows or ought to know is the proceeds of crime booty, can identified as "knowing".
2 this crime belongs to selective charges, so long as the actor one can set up this crime. If the behavior of people at the same time implement multiple behaviors, such as harboring and transfer, transfer and sale, only a crime and non crime. But the charges should be appropriately select statement. Note that the "acquisition" includes buying stolen goods for their own use, including for others to use and buy stolen goods. If the sales and purchases, is actually selling stolen goods.
Line of 3 note this crime and common crime, the key to see whether pre plan. If conspirators, afterwards in accordance with the agreement on the offender to be harboring, transfer income of stolen goods, buy or to sell, should be the treatment of common crime according to the criminal implementation specific crime, this crime and no longer set.
Line of 4 pay attention to this crime and other harboring, transfer, conceal booty crime specific. If the behavioral person harboring, transfer smuggling, trafficking, transporting, is making the drug criminals of stolen goods, should be harboring, transfer of virus 349th stolen goods.



[method] key
Article 313rd to the people's court verdict, ruling ability to perform and refused to perform, if the circumstances are serious, three years in prison, under criminal detention or a fine.

[] "criminal law correlation law" article 277th of 2002 ; the Standing Committee of the Ninth National People's Congress in August 29th twenty-ninth session of "interpretation" of article 313rd of the criminal law; the Supreme People's court in 1998 April 8 day "on the trial of refusing to implement the judgment, judgment of case concrete application law interpretation".

[] mean decomposition
The provisions of article 1 is refusing to implement the decision, ruled that the crime. The object of the crime is to make the people's court according to law with the implementation of the content and the legally effective judgment or ruling. We are very concerned about a such problems in the judicial practice, the relevant departments including the people's court shall make object already effective arbitration, mediation book is this? The whole legislative interpretation in NPC Standing Committee made such a provision: "the people's court to execute the order of payment, in accordance with the law in force, mediation, arbitration of notarized instruments of creditor's claims made by the ruling belonging to the provisions of the order." This table Ming, the legal category, the entry into force of the order of payment mediation, arbitration, notarial obligatory right document itself is not a judgment, ruling, can't be directly used as the object of this crime, but in order to perform the effective legal document, the people's court according to law enforcement can be made by for these documents for the content ruling, if the relevant staff refused to perform, it may constitute a crime.
The subject of the crime of this crime is a special subject that is 2 of the court's decision has to fulfill the obligation of people. For the judgment of the court has obligations of the unit, according to the "Regulations on the trial of refusing to implement the decision, ruled that several issues concerning the specific application of law case explanation", this kind of unit personnel in charge and other directly responsible personnel refused to execution to court judgment, has been in force for the interests of the unit and the ruling, also constitute a crime.
The 3 constitute the crime, the objective aspect must have the following three points: one is refusing to implement the people's court has sentenced verdict, ruling; two is the behavior of people must have the ability to perform and refused to perform; three is refusing to implement the decision, ruled that the act is serious.
Line of 4 pay attention to this crime and the crime of obstruction of official business. In essence, behavior of refusing to implement the judgment, ruling is a nuisance official. The objective aspects of the crime, not to use violence, threats as elements, the obstruction of official content that is specific to the court execution. Therefore, this article compared to 277th the crime of obstruction of official business, is a special method.
5 if the behavior person to the violent refused to implement court effective judgment, ruling, causing minor injuries, still should be in accordance with the offenses,
If the cause of serious injury, death execution (i.e. violence causing serious injury or death), according to the "provisions on the trial of refusing to implement the decision, ruled several issues concerning the specific application of law case explanation" article sixth, shall be in accordance with the "criminal law" the second paragraph 234Th of the crime of intentional injury, intentional homicide crime 232nd.


                                  The third section obstruction of the country (border) environmental management crime


[method] key
318th organize people to secretly cross the national boundary (border) environment, two years less than seven years imprisonment, fined ; one of the following circumstances, department for more than seven years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property:
(a) organize people to secretly cross the national boundary (border) ringleader who;
(two) has organized people to secretly cross the national boundary (border) exit or organize people to secretly cross the national boundary (border) exit numerous;
(three) caused by the organization seriously injured, the death;
(four) deprivation or restriction of personal freedom of the people being organized;
(five) by violence, threats to resist inspection;
(six) a huge amount of illicit income;
(seven) there are other especially serious circumstances.
The crime mentioned in the preceding paragraph, the people being organized murder, injury, rape, trafficking and other criminal acts, or has committed the crime of killing, injuring the inspectors shall be punished in accordance with the provisions, the combined punishment for several crimes.

[] "criminal law" related articles 238th, 277, 321; the Supreme People's Court on the trial in January 28, 2002 "organization, transports the other persons (edge) in some issues of applicable law environment criminal case explanation".

[] mean decomposition
The provisions of article 1 is to organize the people to secretly cross the national boundary (border) environmental crime. The so-called "organize people to secretly cross the national boundary (border) exit", according to the judicial interpretation, is refers to the leadership, planning, directing people to secretly cross the national boundary (border) exit or in command ringleaders, implementation, to lure, introduce people to secretly cross the national boundary (border) and environmental behavior. Note that in organizational behavior including transport organizers illegal access to the country (border) exit behavior, this is the 321st and transporting people to secretly cross the national boundary (border) an important problems should be paid attention to when the relationship of environmental crime.
2 in the organization of people to secretly cross the national boundary (border) throughout the process, behavior and illegal deprivation or restriction of personal freedom by the organizers, legally as the aggravated offense by circumstances, and not another illegal detention.
3 in the organization of people to secretly cross the national boundary (border) exit process, using violence, threats to resist the inspection by the Department concerned, in accordance with the law as a crime with aggravated circumstances treatment, but not on the other set of obstruction of official crime.
4 in the organization of people to secretly cross the national boundary (border) throughout the process, the behavior person to be the organizers have killed, injury, rape, trafficking and other criminal acts, or killing crime, harm of inspection personnel, should be in accordance with the provisions of graft punishment, namely the crime and homicide or the crime of intentional injury or strong * or the crime of trafficking in women and children, the crime be punished. Note that, if in the process of delivery, negligence is organization of the wounded, dead, then in the result to add the felon, and not a combined punishment for several crimes.
[method] key
Article 319th labor export, foreign trade or other name, resort to deceit, obtain the passport, visa, exit documents, others to organization Yue (edge) habitat use, is less than three years imprisonment, fined; if the circumstances are serious, department for more than three years of less than ten years imprisonment, fined.
Units committing the crime mentioned in the preceding paragraph, it shall be fined, and the person in charge directly responsible and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph.

[method] "criminal law" the relevant 318th, 322.

[] mean decomposition
1 the provisions of this article is the crime of defraud exit certificates. That behavior in labor export, economic and trade exchanges or for other reasons, resort to deceit, obtain the passport, visa and other documents, to secretly cross the national boundary to others (edge) environment using behavior. The subject of this crime can be both individual and unit are. The subjective must have to secretly cross the national boundary for others (edge) exit the purpose of use.
2 noticed that the crime and "criminal law" the 318th organization people to secretly cross the national boundary (border) limit environmental crime. This crime is actually organizing others to Yue (edge) is a method of environmental crime behavior and preparation behavior. Two crime have cross overlap, legislation on the behavior is easy to make people to secretly cross the national boundary (border) environmental crime to succeed, it will be stipulated as an independent crime name, should be severely punished. Behavior people exit certificates fraud behavior, as long as it is to secretly cross the national boundary to others (edge) environments, both for their own use or for others to use, if has not been implemented in organizing people to secretly cross the national boundary (border) exit behavior, directly will cheat take exit certificates crime, but not to organize people to secretly cross the national boundary (edge) environmental crime punish preparatory crime.
3 pay attention to this crime and "criminal law" article 322nd to secretly cross the national boundary (edge) limit environmental crime. As mentioned before, the constitutive into subjective will shall have to secretly cross the national boundary for others (edge) exit the purpose of use. If the behavior of human oneself to secretly cross the national boundary (edge) objective environment using the frauds of certificates, the certificates shall be regarded as cheating behavior of secretly cross the national boundary (edge) crime pre environment preparation behavior, to sneak into the country border crime (Preparatory) punished, and no longer will the crime of swindling exit paper.



[method] key
Article 321st transport people to secretly cross the national boundary (border) environment, is less than five years imprisonment, criminal detention or control , shall also be fined; in one of the following cases, five to ten years in prison, fined:
(a) repeatedly implement the transport behavior or transporting a large number of people;
(two) the vessels, vehicles that do not meet the necessary safety conditions, sufficient to cause serious consequences;
(three) a huge amount of illicit income;
(four) there are other especially serious circumstances.
In transporting people to secretly cross the national boundary (border) caused by the carrier to serious injuries or death, environment, or by means of violence or threat, resist inspection, office for more than seven years in prison, fined.
Two paragraphs are committed, the persons being transported are killed, injury, rape, trafficking and other criminal acts, or has committed the crime of killing, injuring the inspectors shall be punished in accordance with the provisions, the combined punishment for several crimes.

[method] "criminal law" the relevant 238th, 318.

[] mean decomposition
The provisions of article 1 is carrying people to secretly cross the national boundary (border) environmental crime. The illegal those to secretly cross the national boundary (edge) exit personnel sent or access country (edge) exit behavior. The 318th organizations and people to secretly cross the national boundary (border) difference between environmental crime is the only transport people to secretly cross the national boundary (border) exit behavior, not people to secretly cross the national boundary (border) exit behavior. furthermore the object is non method to secretly cross the national boundary (edge) exit the will of the people, and organize people to secretly cross the national boundary (border) exit has decided to secretly cross the national boundary (edge) the situation of people, also have no to secretly cross the national boundary (border) exit will even be tricked, coerced to secretly cross the national boundary (border environmental ).
2 if in transporting people to secretly cross the national boundary (border) crime environment caused by being transported wounded, death or by violence, threat method resist inspection, shall be transported people to secretly cross the national boundary (border) exit of aggregated consequential offense or crime with aggravated circumstances treatment, but not on the other set of negligent injury deaths the crime of obstruction of official crime, or due to negligence.
3 if in transporting people to secretly cross the national boundary (border) crime environment, for the persons being transported to kill, hurt, rape, trafficking and other crimes, or has committed the crime of killing, injuring the inspectors, in accordance with the provisions of the third paragraph of this article, should be combined punishment for several crimes, punishment to crime and implementation murder, crime of intentional injury, rape, trafficking in women and children, the crime.