A China, foreigners in the field of crime

[The case]Defendant: man, male,33Years, the former Soviet Union, the copilot.1985Years12Month19Day, the accused man and a second captain crew, driving in the former Soviet Union Territory47845No. a24Type of aircraft, perform a civil aviation bureau101/435The flight task. When the aircraft flew to Tokyo118.09'00North latitude52.40'00"Over time, the defendant while the pilot the toilet on the machine, to the mechanical fault grounds, the mechanic cheated out of the cockpit, then lock the cockpit door, autopilot twist, knife threat aircraft pilot a B to China direction of flight, the captain was forced to change course,19Day14When the30Xu, the plane landed in some county of Heilongjiang Province in China in a village farmland.

[The problem]A crime in China in the field of criminal law is applicable?

[Sentence]The court said the defendant by violent means, a hijacked civilian aircraft in flight, flying into the territory of China, the acts of endangering public safety, constitute a crime shall be punished in accordance with the criminal law, should be Chinese.

[The legal analysis]Effect of issues involved in this case, the criminal law of our country, the accused man though a foreigner, but China's judicial organs have the right to exercise jurisdiction over the crime. Because: first, a hijacked aircraft, has violated China to participate in the "Tokyo Convention", "Hague Convention" and "Montreal Convention" notice "provisions, such as the occurrence of hijacked foreign aircraft landing in China concerning foreign events, should by the law of China, and combined with the three of the relevant provisions of the Convention processing", at the same time within the scope stipulated in China "criminal law" article ninth of the China should treaty obligations, "the provisions of the people's Republic of China in the international treaties concluded or participated in the crime, the people's Republic of China in the obligations undertaken about exercise criminal jurisdiction, applicable law." Second, China's "criminal law" article6Article13Paragraph: "anyone who commits a crime within the people's Republic of China, except when otherwise stipulated by law, the law is applicable to." "The criminal act or consequence takes place within the people's Republic of China, is considered a crime in the territory of the people's Republic of china." Foreigners would not enjoy diplomatic privileges and immunities, relevant criminal responsibility, do not need the "criminal law" article11The provisions of resolution, "criminal responsibility of foreigners who enjoy diplomatic privileges and immunities, solve" through diplomatic channels, which does not belong to "the law has special provisions," situation, crime has started in China in the field of a crime, but its results are occurred within our fields, in accordance with the relevant provisions of me in China, belongs to China in the field of crime, therefore, should apply to the criminal law of our country, it shall be investigated for criminal responsibility according to law.

 

Two, Chinese citizens in China in the field of international crime

　　[The case]Defendant: Yan Mou, male,38Years old, Chinese citizens, our ambassador to China embassy car driver.

The defendant a strict successively by driving to the airport, foreign staff members of the delegation of the opportunity, repeated theft in local capital airport baggage, have stolen a lot in foreign currencies, and watches, cameras and other property, a total of RMB10Million yuan.

　　[The problem]A strict in China in the field of crime should be punished according to the criminal law of our country?

　　[Sentence]The court ruled that a strict system, Chinese citizens, for the purpose of illegal possession, in foreign countries many secret theft of property act has constituted a crime. Should be in accordance with the law shall be punished China, sentenced to fixed-term10Years.

　　[The legal analysis]According to China's "criminal law" article264The people's court sentenced the provisions, to a strict with larceny conviction is correct. A strict Chinese citizens in China in the field of crime, whether to apply the criminal law of our country, this is the key to this case. China's "criminal law" article7Provisions, "citizens of the people's Republic of commit the crimes specified in this law field outside the people's Republic of China, shall apply the provisions of this law, the provisions of this law, but according to the highest penalty of three years in prison, may not be dealt with". "The people's Republic of China state personnel and military personnel who commit the crimes specified in this law field outside the people's Republic of China, the applicability of this method". So, first, Yan a theft, according to the law should be punished the crime of theft; second, Yan a huge amount, in accordance with China's "criminal law" article263Article, the minimum statutory penalty for10Years; third, a strict is the people's Republic of China National staff. So, should be in accordance with the provisions of the criminal law of China, it shall be investigated for criminal responsibility according to law. The court entirely correct.

　　[The case]Defendant: man, male,32Years old, foreign citizens.

The accused man into foreign citizens, our ambassador to the Chinese Embassy to steal, by Chinese embassy staff Lee found, to escape arrest moujia Lee, Lee stabbed with a knife after away.

　　[The problem]How can somebody in China in the field of crime in our criminal law should be applied?

　　[Sentence]The court ruled that a foreign citizen, a behavior, violation of our country and the legitimate interests of citizens, in violation of the criminal law of our country, already constitute the crime of robbery, according to China's criminal law can be punished.

[The legal analysis]Scope of application of the criminal law of many countries, especially the scope of validity for crime and foreigners in the domestic field, it could be the provisions of international law, but because of the current international law is not clearly defined, so only by countries in their domestic law to the provisions. For foreigners in the domestic field of crime, legislation in different countries generally use the protection principles and the principle of universal jurisdiction, to determine the scope of application of domestic criminal law, Chinese Vice versa. China's "criminal law" article8Provisions, "foreigners in the territory of the people's Republic of the people's Republic of China national or civic crimes punishable according to the rules, and for more than three years in prison, this law may apply; but according to the criminal law is not punishable". A foreign citizen behavior, has been a violation of our country and the legitimate interests of citizens, violated China's criminal law, constitute the crime of robbery. In accordance with China's "criminal law" article263The provisions of the minimum statutory penalty of robbery, for more than three years in prison. Robbery is a serious crime, the criminal law as a crime will be punished. Therefore, for foreign citizens can be a crime, criminal law of our country. In addition, according to the "Convention on the prevention and punishment" against Internationally Protected Persons, including diplomatic representatives of a crime, the act has constituted a crime against Internationally Protected Persons, also belongs to a violation of the common interests of international society of international crime. Therefore, in accordance with the principles of international law, it should be applied to the criminal law of our country.

 

　　Three, the concept of crime

　　[The case]Defendant: Joe a, male,18Years old, young man.

The defendant Qiao Jiayin home housing less population not to live, to1993Years6To his uncle Joe B's house. The same year9Month28Day, Uncle Joe Joe a in B after a nap, idle, want to find a magazine, they readily Raggio B forget locked desk drawer, found within a stack of new10Yuan face value of RMB, Joe a meal up greedy, while there is no one in the house, secretly from the drain50Element. Because Joe B the effect, not the lack of cash drawer found. Joe a meet for the first time after stealing up, growing bolder, respectively, in the same year10Month,1994Years3Two times a month while Qiao Yi didn't care, a total of stealing its renminbi600Yuan. When Joe armour to1994Years6Month10Day while Joe B home unmanned machine, open the drawer looking for cash, unexpectedly been hiding playing truant at home Yizhi son Joe Qiao Bing found, then the, then Joe a family on behalf of the repayment of the loss of Qiao Yi. Qiao Yi has to the public security organs do not require treatment Joe a.

　　[The problem]If Joe a acts constitute a crime?

　　[Sentence]The court said the defendant Joe, a subjective, although has the purpose of illegal possession, objective implementation of secret theft of property behavior, but it is not harmful to society, the circumstances are obviously minor, can not make a crime, in accordance with the "PRC Criminal Law" article13The provisions of article, for Joe a acquitted.

　　[The legal analysis]The people crime is a serious social harmfulness behavior. Any act, if not with serious social harm, did not constitute a crime, so "criminal law" article13Stipulates: "all the harm national sovereignty, territorial integrity and security, secession, to subvert the people's democratic dictatorship and overthrow the socialist system, undermine social and economic order, violation of property owned by the state or collective property, infringement of citizens' private property, infringement of citizens' personal rights, democratic rights and other rights, and other acts harmful to society, in accordance with the law shall be subject to criminal punishment, is a crime; but the plot remarkable slight, the harm is not great, not deemed a crime."

In this case the defendant Joe armour has subjective illegal possession of his purpose, objective implementation of theft of property behavior, and its behavior has certain social harm. But the comprehensive case case, the circumstances of the crime are obviously minor, little harm, should not be considered a crime. There are three reasons: first, the theft is the living relatives of the property, but relatively little. After the incident, the original living dear Joe B does not require a criminal responsibility shall be investigated for Joe, but Joe a family has lost to Joe B for compensation, so Joe a theft unlike theft crime that has serious social harm. Secondly, Joe a burglary amount is reached theft the required standard of "large amount", but whether the theft of large amount, not only standard to distinguish theft crime and non crime boundary, also should be integrated into other circumstances of crime. The accused Joe armour is taken while Qiao Yi do not pay attention to the method of secret stolen property, unlike other theft criminals that pull the door lock, a hole in the wall of digging a hole and other properties of relatively poor means, and Joe a small amount each time the stolen property, not to see Joe B all the property taken away, so the integration of all situation of the case, the plot theft Joe a significant harm is slightly. Thirdly, the Supreme People's court, the Supreme People's Procuratorate "concerning stealing case concrete application law interpretation of several issues" in regulation: "theft of their home and property or close relatives of the property, the general can not be handled by crime; for there shall be investigated for criminal responsibility necessary, when dealing with social crime has also the difference between." So, Joe a behavior does not constitute a crime, the court to the defendant Joe a judgment of acquittal is correct.

Four, the subject of crime

　　[The case]Defendant: Zhang, male,21Years old, a dining room, working as a cook.

Defendant Zhang1992Years3January1993Years5During the month, use in the dining room help sell rice, dish opportunity, a number of private cut jobs, vegetables votes, altogether totaling RMB700Multivariate. After that, the defendant Zhang by Liu, Li Mou, Wang Mou will these meal ticket sales for the self-employed, Lai Jeong, from the money600Yuan. The defendant Zhang and other people will be money wasted.

　　[The problem]The main elements of a crime what characteristics?

　　[Sentence]The court ruled that, Zhang behavior constituted a crime of corruption, should be based on the crime of corruption.

　　[The legal analysis]Crime constitute the main elements of crime refers to the crime, in accordance with the law on the crime of criminal responsibility for his own person or unit. According to Chinese criminal law, as the subject of crime, only reaches a certain age and has the capacity of criminal responsibility, can become the subject of crime. Any criminal act, is the subject of the crime of implementation. No subject of crime, it can not implement harm the social behavior, it is impossible to have harm to society of intent or negligence, it could not be a crime. Specifically, first of all, reached the age of criminal responsibility is one of the necessary conditions for the subject of the crime, the criminal responsibility age law refers to behavior person to harm their own acts of criminal liability must reach the age. According to China's "criminal law" the seventeenth regulation, can be divided into: first, not full14Years of age, do not bear criminal responsibility; second, full14With the age of16Years of age, the crime of intentional homicide, intentional injury causing serious injury or death, rape, robbery, drug trafficking, arson, explosion, poisoning crime, shall bear criminal responsibility; third, full16A person under the age of crime, shall bear criminal responsibility. Secondly, the capacity of criminal responsibility is a necessary condition for the subject of crime. The so-called criminal responsibility ability, is a person the ability to identify and control their own behavior, ability nature, significance and consequences that a person to recognize his own conduct and consciously control their own behavior, without capacity of criminal responsibility implement harm to the society, not to bear criminal responsibility. For example, "criminal law" article18Provisions, "mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility." Finally, in accordance with the different requirements of the subject of crime of criminal law the crime can be divided into general subject and special subject, reached the legal age, have the responsibility, is a subject of crime must have the conditions, as long as the subject of the crime with the above conditions, the general subject of crime, in addition, the subject of the crime is it must have the status person to form, is the special subject of crime. The subject of crime in the conviction from the role of constitutive elements of crime, as a special subject and influence of special subject of penalty.

According to the basic characteristics of the main elements of the crime analysis of the case, the behavior of Zhang should decide the crime of theft, not corruption, because the main elements of the accused Zhang does not have the crime of corruption. "Criminal law" article382Article: "the criminal subject of embezzlement is the national staff." Therefore, the subject of those directly engaged in production activities of the workers and peasants did not constitute the crime of corruption. Zhang served as canteen cooking work, engaged in the service labor work, identity does not have the crime of corruption.

Simply sign in this case to distinguish whether the subject of corruption crime is that the defendant is the identity of engaging in business or engage in labour. According to the official is holding public office or the temporary office of personnel engaged in the management of state and collective, social affairs office activities. And labor is the workers, farmers, the private business owners direct material production or service activities. Zhang, he as a canteen cooks, belong to service workers, it often helps to sell food, food in the dining room, the meal ticket behavior is clearly not belonging to the appointed public, therefore, principal Zhang also cannot become the crime of corruption. The qualitative behavior of Zhang court decision is wrong.

　Five, subjective elements of crime

　　[The case]Defendant: Hu, male,28Years old, farmers. The defendant Hu's wife Tang Department of Sichuan people, many with his best friend Zhang (female,22Years old, unmarried) communication, said Henan good living conditions, she only uses slack for processing clothes, a month can earn500Etc.. So, Zhang also want to come to Henan, wrote down a to help her find a suitable house, and to the Humou to Sichuan to meet her, Hu in the Sichuan before finding the village youth Zhou said to him a wife from Sichuan, and weeks with a500Yuan fare, Zhou readily promised, hence to Hu500Yuan, after listening to Hu to Sichuan, said Zhang, her cousin Chen (21Years old, unmarried) also think Henan married, ask Hu whether can take her to go, Hu immediately answer. After returning to Henan, the Hu Zhang to Zhou for his wife, but Chen will be introduced to a distant dear Wei Liang Mou to wife, and in the name of sharing expenses, to Liang Mou for cash500Yuan, Liang Mou for Hu introduced its object and very grateful, to give Hu200Yuan, but Humou received only500Element. Zhang, Chen and two daughters are married life is happy.

　　[The problem]Whether the Humou acts constitute a crime?

　　[Sentence]The court said the defendant, Humou although Zhang, Chen two women are introduced to others for his wife, a property of others, but due to the defendant Hu has not sell women's purpose, and not imposed on women abduction selling behavior, it does not constitute a "criminal law" article240The provisions of the crime of illegal trafficking of women, Hu Mou behavior belongs to the general. According to the criminal law article13Article, declared Humou not guilty.

　　[The legal analysis]The subjective aspect of crime is the subject of the crime refers to the criminal law provides for the establishment of the crime must have the harm behavior implementation and results of mental attitude. The subjective aspect of the crime is the requirement must have set up a crime. Therefore, the objective of harm behavior, subjective also have elements of the subjective aspect of crime, it may constitute a crime; if the behavior caused damage results in the objective, subjective and the subjective does not have the crime, it is not possible to constitute a crime. So, whether to have the subjective conditions, is one of the standards to distinguish crime and non crime. It includes criminal intent or negligence, criminal purpose and motivation.

On the case, the qualitative differences between the prosecution and the court, is mainly due to different understanding of whether the defendant Humou behavior accord with the constitutive elements of the crime of abducting and trafficking in women. We think, the court's decision is correct, the defendant Humou behavior does not accord with the constitutive elements of the crime of abducting and trafficking in women, should not be treated as a crime. Because the crime of abducting and trafficking in women: the actor must have betrayed women purpose of profit, but Hu has not an illegal purpose, not imposed on women abduction selling behavior, as the facts of the case also shows that, the defendant Hu's behavior is introduced to others marriage. Although Hu in the marriage for the property of others, their behavior has certain social harm, but also in the form of and trafficking in women and have some similarities, but from the overall evaluation, Hu is introduced to others marriage, and property of others for a small quantity, purpose of action does not have the "criminal law" article240The crime of abducting and trafficking in women must have betrayed women purpose of profit, which does not accord with the constitutive elements of the crime of abducting and trafficking in women, should not be punished for the crime.

　The objective elements of crime, six

　　[The case]Defendant: skin, male,46Years old, was a giant bee vineyard manager, non national staff.

The defendant skin as a collective enterprise in a giant bee vineyard manager, for the production of need, to1990Years8Month25In the name of giant bee vineyard, loans in RMB to Trust Investment Company10Million from a Service Corporation, grain and oil firms guarantee. Loans, grain and oil firms manager Mou puts forward, to skin a loan out from5Million lent the firm for the reimbursement of millet, a few days after return, or not to peel a loan guarantee. The skin of a consideration of the loan is used for agricultural investment, long period, high risk, eligible and willing to guarantee unit temporarily difficult to find, they agreed to a request of business. The same year8Month28Day, giant bee vineyard in draft form directly related to repayment of millet grain and oil firms in Xiamen section5Million yuan. The business of a skin and agreed on the time and procedures of interest. Since then, grain and oil firms liquidity problems, repayment cannot cash, a positive skin after payment. After the court of first instance verdict before interest and penalty interest, the money has been returned to the city Trust Investment Company.

　　[The problem]Objective should have what constitutes a crime?

　　[Sentence]The court ruled that the defendant skin a behavior constituted the crime of misappropriation of funds should be appropriated unit, the unit capital crime.

　　[The legal analysis]The objective aspect of crime is the objective external performance refers to the crime activities. It features the objective aspect of the crime including harm behavior, harm result and crime time, place, etc.. Among them, the harm behavior is indispensable to all elements constitute a crime, harm result is necessary for most elements of a crime, time, place, method of crime is only required for certain crimes constitute elements. Specifically, the harm behavior crime objective aspect of human, is harmful to society in the implementation of human consciousness and will dominated behavior, specific performance for the acts and omissions of two types. As is the implementation of prohibition by law refers to positive behavior; not as a means of negative behavior, not implementation should be implemented in accordance with the law. Harm result in the sense of law, refers to the object that the harm caused by harmful behavior of the socialist social relations, harm result and the material and immaterial harm result of two types. In addition, an important part of the causal relationship between behavior and harmful results is the objective aspect of the crime, the causality between harmful behavior and find out the results, can provide an objective basis for investigation of his criminal responsibility.

According to the basic principle of the objective aspect of the crime, Char Ming P's behavior is consistent with the crime of misappropriation of funds objective elements is the key of China's "criminal law," article272Regulation: "companies, enterprises or other units of staff, taking advantage of his position, misappropriation of the funds for personal use or lending to others, larger, more than three months without further, or are not more than three months, but the amount is larger, for-profit activities, or illegal activities" behavior, constitute the crime of misappropriation of funds the unit, must meet the following four conditions: first, the violation of the object is the ownership of public property, specific for the right to use, but also to a certain extent violation of system of financial management. Secondly, imposed by the act of using the convenience of duty in the objective aspect, misappropriation of the funds behavior. Third, the subject of this crime is a special subject, namely, must be a company, enterprise or other unit staff. Fourthly, in the subjective aspect from direct intention.

In this case the defendant skin a giant bee vineyard manager, implemented using the convenience of duty, misappropriation of the funds for lending to others, if the amount is relatively large, for-profit activities. The act is fully consistent with the object of misappropriating the funds, objective aspect, subject, subjective aspects of four elements. So, to deal with it as the unit crime of funds misappropriation. Therefore, the court's decision is correct.

Eight, the justifiable defense

　　[The case]Defendant: Peng, male,25Years old, workers.

　　1992Years7Month24On the evening of8:30The home, Peng in a city near Jiefang Road, to meet the two men is insulting his girl friend Mao Mou, came to accuse, was a young man beaten, forced to fight back, in the rally, plainclothes police Zhu pass by, not indicate the identity of the security personnel, namely hold tight Peng's left shoulder, Peng a mistaken for each other's accomplice accomplice, pulled out the horn knife of Zhu's left eye poked a knife to escape, because Zhu shouted, Peng was caught and the people, the detention. After treatment, Zhu left eye is blind, the forensic identification, a serious of legal.

　　[The problem]What is the condition of justifiable defense?

　　[Sentence]The court said, Peng's behavior belongs to the imaginary defense, excessive defense, should be negligence mayhem.

　　[The legal analysis]According to the "criminal law" article20Provisions, justifiable defense is to enable countries, the public interest, the person himself or herself or others, property and other rights from being infringed, and take on illegal offenders to stop their illegal infringement. Elements of self-defense must have: one, there must be an unlawful infringement harm to society. Secondly, being infringed. Thirdly, the defense behavior must be to make the legitimate rights and interests from violation. Fourthly, the defense behavior must aim at illegal violate my implementation. Fifthly, the justifiable defense in addition to the ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, not obviously exceeds the limits of necessity and cause significant damage. Only with the above conditions, in order to set up the justifiable defense.

According to the basic characteristics of justifiable defense analysis of the case, we think, Peng act is the imaginary defense behavior, but its behavior has no subjective fault, damage result is due to unforeseen, was an accident. The person shall not bear criminal responsibility, the reason is: first of all, Peng of imaginary defense is inevitable, because when the police Zhu did not show their identities, seize the Peng's left shoulder, both sides in the battle situation, especially in the other case of many people, Peng identified requirements it was the police is not possible, belong to "the unlawful infringement understanding error caused the defence against the third party", therefore, Peng's behavior belongs to the imaginary defense. Secondly, Peng behavior was an accident caused by the imaginary defense, causing damage to the consequences are not liable. Therefore, Peng was understanding of unlawful infringement people in case of error resulted in defence against the third party, and cannot deny its defense of the imaginary, but, in the circumstances, does not require the foreseeable behavior results occurred. Therefore, according to the "criminal law" article16Herein, shall be considered as the accident.

Nine, the emergency

　　[The case]Defendant: Black Mou, male,45Years old, a ship captain.

　　1994Years10Month1On the way, a liner is Singapore came back to Guangzhou, suddenly encountered a typhoon, the captain by years of sailing experience decided to abandon the valuable cargo carried by travelers (up to2Million yuan), in order to reduce weight, protect the life safety of the passengers.

　　[The problem]What is the emergency constitution?

　　[Sentence]The court ruled that, black Mou behavior belongs to the emergency, and he shall not bear criminal responsibility.

　　[The legal analysis]According to the "criminal law" article21The provisions of article, the emergency is to enable countries, the public interest, the person himself or herself or others, property and other rights from danger happening, not to harm the legitimate interests of the other party smaller behavior. Our emergency is not only a right of citizens, is one of the duties of the citizen moral, and even in some cases is a legal obligation. Elements of emergency with the establishment of conditions and the legal conditions. Prerequisites include the following aspects: first, must be legitimate interests are dangerous. The so-called risk, refers to the protection of the law benefits may immediately from a state of fact harm. Harm social risk sources are the spontaneous forces of nature, animal spontaneous attacks, human behavior, human physiological or disease causes. Secondly, must be the danger happening, namely risk actual existence has occurred, not the past, in order to implement the emergency. Otherwise, the risk does not occur or has been in the past, the so-called hedging behavior, not the emergency, but not to hedge. The legal conditions including the following aspects: first, risk aversion behavior must be in order to make legitimate interests to avoid the risk of occurring and the implementation; second, must be danger can not avoid the use of other methods; thirdly, risk aversion does not exceed the limits of necessity should not harm. The necessary limit, namely the damage which must be the light to avoid damage.

Combined with the emergency conditions of the case, we think, the court's judgment is correct. The black one act is fully consistent with the conditions for establishment of emergency. In addition, the black a hedging behavior also not excessive, therefore, the black Mou does not bear criminal responsibility.

Ten, the accomplishment of a crime

　　[Case please]Defendant: Zhao, male,20Years old. The defendant zhaomou in1991Years5Month27Day23PM, climbing into the window of a school open financial room office drawer, theft of blank cheques a, and steal the seal, and in two blank stationery stealing cover the school financial dedicated seal. The next day, the defendant zhaomou forgery proof, with the theft of the check, to Kunming City Limin hardware electrical appliance shop, buy Sony enlarger2Table,G30Enlarger4Table, rewinding machine1Table, small color TV set1Table, blank tape20Disk, the cleaning tape5Disk, video tape5Disc, of the recorded line2Sleeve, lighter2A, value22290Element. Because of the day Sunday, the bank does not need the revenue income, in order to delivery, the defendant zhaomou home after the ideological struggle is fierce, feel things serious, not second days to delivery.

　　[The problem]How to identify the crime?

　　[Sentence]The court ruled that Zhao's behavior has constituted the crime of theft, theft in accordance with the law shall be punished. 　　

[The legal analysis]Crime is refers to the behavior person intentionally has all the elements of a crime. Confirm the crime is completed, should be implemented by the behavior of the perpetrator whether to have the criminal law of the crime of all elements of a standard, rather than the crime purpose or to the crime results as the standard of accomplishment of crime. Since they could not have accomplished and attempted to distinguish, therefore is not comprehensive and exact. Some crime, crime although did not achieve the criminal purpose, but the law has been completely specific elements of constitution of crime, should be accomplished crime rather than attempt. At the same time, there are many crime occurred in law of criminal results or not distinguish crime and not crime, but the results will occur or not as the crime is accomplished or not distinguish standard. The accomplishment of a crime are four aspects of the subject of crime, subjective, objective, object elements all have the form, are indispensable, only in order to determine whether a crime accomplished, and the only one to correctly determine the crime accomplishment and attempted standard.

By the standards of the accomplishment of crime to analyze the case, we think, the defendant zhaomou behavior has constitute the crime of theft. In this case, the defendant zhaomou has stolen a school got a blank cheque, and steal the seal and financial dedicated seal cover. Therefore, the cover seal blank cheques became the holder to buy goods, securities, namely the transfer check with person Zhao has been illegally have the ownership transfer check represents. A school has lost the actual control of the ownership of property. So in this case, Zhao theft behavior has constituted a crime. As for the after ideological struggle not to take delivery of the goods, only that Zhao for his conduct repentance performance, can be used as a circumstance to consider, therefore, the people's court's decision is correct.

Eleven, the attempted crime

　　[Case please]Defendant: Zheng, male,28Years old.1994Years6Month1On the morning of5PM, the defendant zhengmou in the city of Yanan Road Street alley normal, met on the early female youth Huang (female,25Years old), and carry out the dagger, at the top of the waist after young women, the young woman Huang held hostage to the alley toilets, young female life Zheng the pants off, sex, Huang does not allow, Zheng Sui dagger will young women belt pull, will own pants lock open, trying to force and Huang have sex, Huang said: "you do it, let's find another place, my name is Huang, in the four workshop Jingwei Textile Factory, telephone909909"Then Huang said:" do you want to do, take a condom to." Zheng said: "no, I don't shoot not inside?" Huang said: "don't shoot in it too, because I now is a period of ovulation, do you want to do will be pregnant, then, you are gone, I find you can not be non." Huang Mou sees Zheng still holding a dagger, he said: "what have you done with the dagger?" Zheng put away the dagger, Huang said: "you come to me, doing this can not, you get this thing make me to catch, you also have to get shot, do yourself." Zheng said: "even if." And then the young woman Huang hugs and kisses, touch belly, breast, and later Huang from Zheng's entanglement. The same year6Month2,3Day, Zheng has two to young women call Hwang, Hwang are not in.8Day, Chung and Huang call, about Huang late that day on the north of the city gate, Huang immediately report to the public security organs, later that day9When the public security organs in the north gate will Zheng caught, and found a condom from his or her hand3A.

　　[The problem]What are the basic characteristics of crime?

　　[Sentence]The court ruled that the defendant zhengmou behavior belongs to the crime of rape (attempted). Because the defendant zhengmou embarked on crime later, due to the reason will not succeed. In fact, the victim Huang was fight. Subjectively, the defendant zhengmou exist misunderstanding. Afterward, Zheng and the phone several times about Huang, indicates that it did not give up the illegal behavior. The acts of the defendant in accordance with the "attempted" condition, it should be regarded as the crime of rape attempt.

　　[The legal analysis]According to the "criminal law" article23Herein, the attempted crime is refers to has already begun to crime, due to reasons other than the criminals will not succeed state. Based on this definition, constitute a crime must have the following conditions: first is the behavior of the person who has already begun to crime, which has begun to implement a specific crime regulated by the criminal law elements of the act; the second is the crime did not succeed refers to crimes are not fully equipped with a criminal provisions of the criminal law of the constituent elements; again is no crime it is due to reasons other than the will of the criminal element that is contrary to the criminal intent, the objective reasons can not be completed crime or subjectively feel unable to complete a crime. Attempted crime can be divided into different kinds according to different standards, not only can the end of crime standard or not is divided into the completed attempt and not the completed attempt, and can in fact can not constitute crime accomplishment standard is divided into possible criminal attempt and impossibility.

Based on this case, we think, Zheng's behavior should constitute the crime of rape crime, the main reasons are: first, the defendant zhengmou in victims Huang speech with case, for gospel truth, mistakenly think that is another way of adultery, or the conditions are ripe for rape, prostitution, if only from the form look, the defendant can continue to implement crime Zheng in the toilet, but stopped crime, like belongs to the people "gave up the crime", but in fact, the defendant in the toilet is temporarily abandon crime, it is against the crime will, is not completely voluntary. So, why the defendant zhengmou unfinished crime is due to its outside the will. In short, Zheng's behavior consistent with the crime of rape (attempted) requirements, should be the crime of rape (attempted)

Twelve, the discontinuance of crime

　　[The case]Defendant: Liu, male,31Years old, farmers.

1991Years6Month, the defendant to write to a local professional investors, "borrow3Million yuan of money to buy me a car,5In the afternoon5When the40You a person to a Park rockery to find me, if not with money or by others, be careful of your daughter."5Future, the defendant according to set their own time to a park, far far see a bag in, rockery, in his attempts to close to the people, found that the park more visitors, and rockery people often appear, so, he turned in the park3An hour or so, not the end close to the people, eventually give up, go to the park at the entrance, captured by the public security organs.

　　[The problem]The discontinuance of crime should be how to identify and deal with?

　　[Sentence]The court ruled that, the defendant LiuMou behavior belongs to a waiver of criminal behavior, because he can be close to or in contact with the victim, but their own will, based on finally quit, effectively prevent the occurrence of criminal results, in accordance with the provisions on the discontinuance of crime in our criminal law, so the defendant's conduct is the discontinuance of crime.

　　[The legal analysis]According to China's "criminal law" article24Article, the discontinuance of crime is the crime process, gave up the crime or automatically and effectively prevent the occurrence of criminal behavior. Elements for crime termination, shall have the following elements: the first is to stop the crime in the criminal process, namely the discontinuance of crime can only occur in preparation for a crime, crime and the implementation process after the end, before the result of crime. In other words, only in the process of preparation for a crime to stop crime in the crime before the suspension of crime, it may. The second is to automatically give up crime or automatically prevents the consequences of the crime from occurring, the so-called automatic suspension of crime is the act of his own volition to stop this can carry on activities. Once again, must occur completely stop the crime or prevent criminal result. The so-called completely stop the crime is the behavior, from the kind of idea of crime and not the implementation of this kind of crime. Thus it can be seen, the discontinuance of crime is the unification of subjective and objective: subjective intent objectively waiver, suspend crime or effectively prevented the crime results, only in this way, can only be determined whether the discontinuance of crime. For the discontinuance of crime, no damage is caused, be exempted from punishment; damage is caused, be given a mitigated punishment.

Analysis of the conditions of the discontinuance of crime, from the above we think, Liu Mou does not conform to the discontinuance of crime constitution, and only in line with the basic characteristics of the attempted crime. Because: the defendant Liu due to unfavorable situation the scene of the crime to the crime, is unfavorable factors based on may have been forced to give up, not out of the inherent will own stop may carry on activities. The defendant was found within the park visitors more, and people often appear in the hills nearby, the defendant was slowed or fear that they could not complete the crime to stop crime, this does not belong to the discontinuance of crime, but the attempt of crime, the court decision is wrong.

Thirteen, the common crime

　　[The case]Defendant: Lee, male,50Years old, a court assistant judge. Defendant: Zhao, female,48Years old, a textile factory workers, and the relationship between husband and wife accused lee. 　　1990Years7Month, a bank of cadres more than some because of misappropriation of the funds crime arrested, Yu Mou's wife Xu found the same factory friends accused Zhao, Zhao please her husband asked Li Mou of the accused person for help, try to put out more than one, and must give thanks again. Zhao home to lie about it, Lee refused to say: "it is not in my hands, I can't do." Zhao after hear very angry, scold Li useless, brain death, don't send money. Li Rengran does not agree, said: "I do not want money, but can not be, lane is bad to jail." Zhao after listen to cry, and said to Li divorce, Li said after listening to: "listen to you, she is willing to show how much money." Zhao after work to inform Xu, Xu home, took out the family secret is not procuratorate found cash5000Element, and borrow from the same factory workers, neighbors5000Yuan, in the evening to Zhao, Zhao, Li received the1Million yuan in cash. Li Mou of the accused person money, try various devices to the remaining case to do by yourself, and sometime in the trial the defendant, a walk to the clerk, tell Yu Mou to court to answer the question, because Xu borrow staff with a Zhao discord, and write the letter of accusation to Lee in the court's leadership, the court leaders find Lee talks, Li a truthful account of the facts.1990Years12Monthly return of, the defendant zhaomou and Lee exit money1Million yuan.

　　[The problem]What is the basic character of joint crime? What are the forms of common crime?

　　[Sentence]The court said, Li Mou of the accused person is the identity of a person, the defendant zhaomou is no identity, this case belongs to those who are undocumented status joint crime. So Zhao should be in accordance with the Lee acts of bribery crime.

　　[The legal analysis]According to the "criminal law" article25Provisions, the so-called common crime is an intentional crime committed by two or more persons jointly. The basic character of joint crime is: first, from the subject of crime, must be more than two reached the age of criminal responsibility, has the responsibility to implement the crime. Secondly, from the objective aspect of the crime, the common crime must have the joint criminal behavior. That is to say, the joint crime are pointing to the same crime, mutual connection with each other, so as to form a unified whole of criminal activities, there is a causal relationship between crime and the results of each individual. The common criminal acts in the form of common as, or not as common as well as the combination of the omission as. According to the status and role of the common crime person in the activities in the common crime, common crime can be divided into principal, accomplice, accomplice under duress and abettor. The so-called principal, is the organization, leads a criminal group in carrying out criminal activities or play a principal role in a joint crime criminal. Accessory criminals, is a secondary or auxiliary role in a joint crime. The coerced offender, is refers to the criminal offender is coerced to participate in a crime. The abettor, is deliberately inciting others to commit the crime person.

According to the above, we think, Zhao and Li crime belongs to the crime. Because: first, from the subjective point of view, when the defendant zhaomou to Li Mou of the accused person uses his duty convenience will Yumou put out, and receive more than a wife Xu bribery, Lee began to disagree, after Zhao many times to persuade, persecuted, Mr. Lee has finally agreed to. To this, common bribery crime intentionally has formed. Secondly, from an objective point of view, the defendant zhaomou by Li Mou of the accused person the convenience of duty behavior of accepting other people's property, Li Mou of the accused person is implemented by using the duty convenience to obtain illegal benefits for others, show that two people have formed a division of labor, the joint crime of bribery behavior and connection the defendant zhaomou, although do not have the status of state personnel, to facilitate bribes Lee use their positions on the defendant but with the identity of national staff. Therefore, belongs to the accomplice of bribery, and taking bribes for the convicted.

Therefore, the court's decision is correct.

Fourteen, the combined punishment for several crimes

　　[Case please]Defendant: Pan, male,32Years old.

The defendant pan the work in Guangxi under the name * * County in LAN, the young female Xiang Wang cheat to Guangxi County, to3500Yuan to the county villagers Li Mou, because of the need to the young woman's proof of marital status, pay2000Yuan, to ban will that do come back again1500Element. Pan back * * County, found that Tian (other processing), please help Sike "x x County Wan Lan Xiang Government" seal a, after engraved, pan will prewritten false Ming cover chapter, will be destroyed after the seal, two people will be the proof to Guangxi County Lee somewhere, filled1500Element.

[The problem]How to correctly distinguish between a crime and several crimes? There are several types of combined punishment for several crimes?

　　[Sentence]The court ruled that the defendant pan for the purpose of selling, will kidnap young woman acts Wang sold and others, has constituted the crime of abducting and trafficking in women. The defendant pan although Sike seal and forgery proof of marital status, but the act does not constitute a separate seal forgery crime, because the act is Pan fraud Lee1500Method behavior element, the defendant pan and constitute a crime of fraud.

　　[The legal analysis]The number of crimes is relative to a crime, a crime refers to a person commit one crime and several crimes situation, a person is two or more than two kinds of crime situation. A crime can be divided into a crime in essence and statutory one crime, one crime in nature including the imaginative joinder of offenses, aggregated consequential offense and continue to make, statutory one crime usually include a combination of crime and recidivism. At break of a crime is the essence of crime number, broken on according to a crime, including continuous crime, implicated offense and absorbable offense. The number of crimes can be divided into the same crimes and the several dissimilar crimes, punish the crime and non crime punish the number according to different criteria. Our distinction between one crime and several crimes usually use "standard of crime constitution standards", that is to say, the number should be based on the constitution of crime as the standard to determine the crime of one complex, with a crime as a crime, with a number of criminal constitution of the crime.

Punishment is one of the basic systems applicable to criminal punishment, is refers to the people's court for crimes committed on a behavior legal limits in conviction and sentencing method respectively, the decision should execute penalty calculated in accordance with the principles of concurrent and punishment legal system. Has the following characteristics:

First, must be guilty of crimes act substantially or independent of the number of crime;

Second, the number of crimes committed by a person must occur within the statutory time limit;

Third, the foundation must be in the crime of conviction and sentencing of the logarithm respectively, according to the legal principles of concurrent punishment, and punishment method, determines the execution of punishment.

 

The basic content about the combined punishment for several crimes and different punishment application deadline for the criminal law of our country mainly include:

First, before the judgment is pronounced a committed several crimes, in accordance with the "criminal law" article69The provisions of the principle of punishment

; second, declaration, penalty has not completed before, found that criminals sentenced the judgment is pronounced, other crime had not decided, according to the "criminal law" article70The provisions of "before and after the reduction method of punishment";

Third, after the judgment is pronounced, the penalty is not completed before, criminals convicted again commits a crime, according to the "criminal law" article71The provisions of "first decreased and then and" method of punishment;

Fourth, declared probation crimes, during the probation period for new crime committed, before the judgment is pronounced, or find another crime judgment, in accordance with the "criminal law" article69Provisions of punishment;

Fifth, the criminals are on parole, the parole period to commit new crimes, should be in accordance with the "criminal law" article71The provisions of punishment, if found no judgment before the judgment is pronounced, and other crimes, should be in accordance with the "criminal law" article69Provisions of punishment.

According to the analysis of these cases, we think that the defendant Pan's behavior should constitute crime of fraud crime of abducting and trafficking in women and two crime. The reason is: first, the defendant pan will be a year of Wang cheat to Guangxi and sold to Mr. Lee, his behavior constituted the crime of abducting and trafficking in women, and is the accomplishment of a crime, according to China's "criminal law" article240The provisions of article, for the purpose of selling, a kidnapping, kidnapping, buying, trafficking, transporting, transferring a woman acts, it shall constitute abduct women crime, not by whether the actor actually obtains the profit is the necessary condition. Second, the defendant pan after the completion of the crime of abducting and trafficking in women, for defrauding the rest1500Yuan, private seal forgery proof of marital status for Wang, Lee1500Element of the act is fully consistent with the elements of fraud, should be identified as fraud. As for the Sike official behavior, not alone constitute crime, objective behavior it as means of behavior and fraud others money which should be implicated crime, fraud a crime.

The defendant pan behavior constitutes fraud crime of abducting and trafficking in women and, according to the "criminal law" article69The reason is: the defendant pan behavior can be divided into two stages. The first stage is the second stage is the crime of abducting and trafficking in women, the crime of fraud. The defendant for two deliberately, the implementation of the two act, a two crime, crime and two are made before the trial, so should be the "criminal law" article69Section shall be punished.

　Fifteen, to surrender

[The case]Defendant: Section one, male,26Department of agriculture, in a cadre school hostel cashier. The defendant a to1991Years7Month9A day as agricultural cadre school hostel cashier accounting period, by taking advantage of his position, a number of private appropriation of their custody of cash, a total of13000Yuan. After the party City Hall actively deployed to strengthen the anti corruption and building a clean, that sooner or later accused, then on1992Years10Month1Active to the procuratorial organ to surrender, and actively to refund all the money. 　　

[The problem]What is the condition of surrender?

　　[Sentence]The court ruled that, a behavior should be crime of misappropriating public funds, but the plot have surrendered, may be given a lighter punishment.

　　[The legal analysis]According to China's "criminal law" article67Article, the surrender is refers to the criminal offender voluntarily surrender after committing a crime, in, admit his guilt, accept the examination and judgment of behavior. The voluntary surrender should possess the following three conditions: first, after crime automatic technology. The voluntary surrender, usually refers to the criminals after the crime, criminal facts or I did not discover judicial authority, or has been found but not yet on the interrogation, compulsory measures have not been subjected to previous automatic for I will surrender to the judicial organ or the relevant units. Secondly, the confession of his crime. Namely, the criminals in accordance with the actual situation of all confessed his crime, and shall not conceal and intentional omission. Thirdly, to accept the examination and judgment. Criminals surrender, confessed truthfully confesses his crime, must await, accept and cannot escape judicial investigation, prosecution and trial, to the establishment of surrender.

The analysis of this case, we think, one in the embezzlement of public funds, before the judicial authorities found, can take the initiative to returned the money, with the confirmation of voluntary surrender. In accordance with the "criminal law" article67Article, "for the criminals to surrender, may be given a lighter or mitigated punishment, wherein, the lesser crime, may be exempted from punishment." One should take the embezzlement crime, but because of the plot have surrendered, may be given a lighter punishment.

　Sixteen, meritorious service, recidivism

　　[Case please]Defendant: a million, male,40Years old.1983Years for crime were sentenced to prison12Years,1995Years of release.

Defendant: Zhou, male,52Years old.1983Years for robbery was sentenced to3Years,1992Years for drug trafficking was sentenced to3Years,1995

Years in prison release.

Defendant: Zhu, male,Z7Years old, farmers.1995Was made compulsory indecency women sin was immune from prosecution,1997Years for robbery was sentenced to1Years

　　6Month,1998Years of release.

Defendant: Lu Mou, male,63Years old, farmers.1983Years for theft was sentenced to7Years,1990Years of release.

A million to1998Years4Late last month, from Yuan Wang Mou will farm2.6Kilogram opium brought to a city Zhou home. After a million, Zhou respectively1.6Kg,1.4Kilograms of opium to a city, Lu Mou trafficking. The same year5Month20On the afternoon of4When Xu, Lu Mou in a novel City Hostel410The room was a public security organ with the goods sold opium, opium seized2642.4G. The same year8Month17Day, according to Lu Mou confession, seized opium at home0.3505Kg.1998At the beginning of the year, Zhou fled to B County invited Zhu opium. Zhu across the border to Laos to buy opium1.2Kg, with Zhou the Opium brought to a city Zhou home. After Zhu from B County across the border to Laos to repurchase the Opium1Kg smuggled into a city sell zhou. 　1997At the end of the year, from a certain (handled separately), Wu (at large) flee to C offer a million selling opium. Wu, a million investment, since a from B County across the border to Laos to repurchase the Opium5Kg, in Ding county to Wu, a million and Wu will opium trafficking smuggled into the town.1998Years1Late last month, after a, a million fund-raising from B County across the border to Laos to repurchase the Opium12Kg, in Ding county to Wu trafficking. The Wu and funded by the white, a, a million from B County across the border to Laos to repurchase the Opium6Kg, and Wu smuggled into e to sell.1997Years8Month10Day, the intermediate people's court sentenced to death penalty for drug trafficking Lu Mou, deprived of political rights for life. After the verdict, Lou a positive report and expose the million, Zhou drug crimes. The public security organ according to this clue, captured in a million, Zhou and other drug traffickers Zhu, make the case The case is entirely cleared., the higher people's court think, Lu Mou has the meritorious performance, and Lou a drug trafficking case in1998Years9Month29On the back, and in this case the merger trial.

　　[The problem]Recidivism conditions? Meritorious service should be how to identify?

　　[Sentence]The defendant in a million, Zhou, Zhu, Lu Mou has been sentenced to a punishment, released is still not repent, for illegal profit and drug trafficking opium, has constituted the crime of drug trafficking and drug trafficking, large quantity, if the circumstances are serious, shall be punished according to law. The defendant in a million, Zhu, Zhou released discontent5Years and recidivist, crime, should be severely punished. The defendant Lu Mou immediately after the crime actively report and expose other drug criminals, repentance, meritorious performance, can be mitigated punishment.

　　[The legal analysis]According to the "criminal law" article65,66Article, the recidivist, is because of the crime with a penalty, the punishment is finished or pardon, from within the statutory time limit and make certain guilty offender. It can be divided into general recidivism and endanger the national security of recidivism. General recidivism conditions for:[1]The former and latter crimes are intentional crime;[2]A former crime and the punishment imposed for the latter crime are sentenced penalty above;[3]Crime occurred after the completion of the execution of the pardon after or before the crime5Within a year. Harm national security conditions is a recidivist:[1]The former and latter crimes are crimes of endangering national security;[2]No penalty limit;[3]No time requirements. According to the "criminal law" article70The provisions of article, the so-called crime refers to be lenient to the criminal plot, identification crime, criminals must expose others to commit a crime behavior is verified or provide important clues to the behavior, meritorious performance, cracking of other cases.

According to the above discussion to this case analysis, we think that, in a million, Zhou, Zhu and the defendant of the original instance Lu some illegal profiteering, no law, many opium trade, which constitutes the "criminal law" article344The provisions of the crime of drug trafficking. A million others to participate in opium14800G, Zhou with others opium amounted to7265.8G, Zhu in others the opium trade amounted to2200G, Lu Mou in others the opium trade amounted to2997.9G, drug amount is huge, if the circumstances are especially serious, shall be punished according to law. A million released discontent5Years and crime, a recidivist, Zhou, who was sentenced for drug trafficking, is still not repent, and continue to drug trafficking, also constitute recidivism; Zhu Mouyi is unhappy in his release5Years and crime, also constitute recidivism. Lu Mou after the incident, to actively report and expose the other drug criminals, repentance meritorious performance, so it can be mitigated punishment. Therefore, the court's judgment is correct.

　Seventeen, stealing, spying, buying, illegally providing state secret intelligence crime

　　[The case]Defendant: Wu, male,31Years old, the original is a news editor.

Defendant: Ma Mou, female,29Years old, originally a magazine editor, the defendant Wu Mouzhi wife. 　　1992Years3Month, the defendant wumou and come to Beijing to interview the five session of the seven National People's Congress of Hongkong * newspaper reporter Liang Mou acquaintance, beam in order to obtain the CPC Congress report draft, to Wu collection. The same year10Month4On the morning, Wu will use the work of the General Secretary Jiang Zemin, "unit of the relevant staff of the internal circulation in the Chinese Communist Party of the Fourteenth National People's Congress on the draft report" (top secret version) a private copy, carry home. On the afternoon of the same day, Wu ordered the accused party a according to the agreed place the "report" illegally providing to Liang mou. Then, using the fax machine beams of a privately arranged by the "report" the Hongkong return * newspaper.10Month5Japan, Hongkong * newspaper published the full text of the "report".10Month21Day, Liang Mou and Ma, Wu agreement in place to meet, beam pay Wu Yuan FEC5000Element. After the incident, Wu, Ma Mou pleaded guilty to a better attitude, the money has been seized.

　　[The problem]What are the characteristics of stealing, spying, buying, illegally providing state secret sin?

　　[Sentence]The court ruled that: the defendant Wu, Ma Mou for national staff, for profit, in violation of state secrecy laws, for foreigners who illegally providing state secret and confidential, endanger national security, the defendant Wu, Ma Mou constituted for foreigners who illegally providing state secrets.

　　[The legal analysis]Crimes of endangering national security, is an intentional harm the people's Republic of China, the basic elements of the crime: first, the subject of crime in most for the general subject, so long as has the capacity of criminal responsibility, reached the age of criminal responsibility, both Chinese, foreigners or no nationality people, can become the subject of crime, but also some of the crime for special subject, the subject such as civil servants who sins is the only national office working personnel performing his duties. Second, the establishment of the subjective aspect of the crime, the crime of endangering national security, in the subjective aspect, performance is deliberate, and must have harm national security purposes. Third, the objective aspect of the crime must have the harm of the people's Republic of China, namely, endanger national security, an independent existence and development of the political and material foundation behavior. Fourth, violation of the object, is the people's Republic of China's national security.

For stealing, spying, buying, illegally providing state secret sin, is refers to outside agencies, organizations, personnel, stealing, spying, buying, illegally providing state secrets act. Its main features are: first, the subject of crime is general subject, namely those who reach the age of criminal responsibility, criminal responsibility of natural person may become the subject of crime. Second, the subjective aspect of crime is intentional, that behavior that is a state secret, and that is the overseas organizations, institutions, personnel and deliberately to steal, spying, buying, illegally providing state secret, and I hope or indulge harm national security and interests of the results. Third, objective aspect of crime of violating the state secrecy laws, for overseas institutions, organizations, personnel, stealing, spying, buying, illegally providing state secrets act. Fourth, crime object, object of this crime is the violation of state security and national interests. According to the analysis of this case, we think, the court to the Wu, Ma's decision is correct. According to China's "criminal law" article111Article, the defendant Wu, Ma Mou mercenary motives, for obtain illegal interests, secrecy laws in violation of state, before the CPC Congress convened, the top secret documents for the relevant personnel for review and approval of the internal circulation of CPC Congress report, illegal for overseas personnel, resulting in Hongkong "X" full text is published, causing adverse influence at home and abroad. So, the people's court that overseas illegally providing state secrets to the Wu, Ma a sentence, is in accordance with the law.

Eighteen, the aircraft hijacking crime

　　[The case]Defendant: Sun Mou, male,25Years old, workers. The accused Sunmou from1993Years7The month starts to implement aircraft hijacking crime preparation activities.1993Years11Month26Day, the sun bought a ticket from Shanghai to tianjin. In the same month28Day14PM, the accused Sunmou carry already prepared powder packets and ignition wire, boarded a flight Chinese International Airlines aircraft. Shortly after takeoff, the accused Sunmou to detonate gunpowder wrapped phase threat, stress the crew will be flying to Taiwan, and the crew said: "my dynamite is true, if you don't go, I'll blow up a plane." The crew after the measure is taken, the accused Sunmou captured in Nanjing airport.

　　[The problem]What is the constitutive elements of crime of hijacking aircraft?

　[Sentence]The judgment of the court, the accused Sunmou carefully contrived to coercion, threats detonated gunpowder, hijacking, already constituted "criminal law" article121The provisions of the crime of hijacking aircraft, aircraft hijacking crime should be based on.

　　[The legal analysis]According to China's "criminal law" article121The provisions of article, so-called aircraft hijacking crime refers to the violence, coercion or other means of hijacking behavior. Hijacking is a serious breaches of international aviation order, harm the safety of the civil aircraft and persons and property carried the obstruction of civil aviation transportation, the normal operation of the international crime. The constitution as: first, the violation of the object is the majority of people not specific to life, health and national and personal and property safety. Second, objective aspect of crime by violence, coercion or other methods of unlawful seizure of aircraft behavior. Third, the subject of crime is general subject, namely all reached the age of criminal responsibility, criminal responsibility of natural person with ability. Fourth, the subjective aspect of the crime of intentional crime, intentional content, behavior person knowingly unlawful seizure of aircraft behavior, a serious threat to the safety of civil aviation, but in order to capture or control aircraft, to achieve the criminal purpose, at the expense of the aircraft and the persons life, health and national and personal property price, terrorist acts intentionally, hijacking behavior can not be a fault in the subjective.

From the point of view, constitute elements of the defendant's act is fully consistent with the hijacking aircraft. First, the sun, has reached25Years old, has the capacity of criminal responsibility, in accordance with the subject of the crime constitution. Second, the defendant to board the plane before the prepared powder bag, ignition wire and match, that the hijacking act carefully planned and prepared, and its purpose is to control the direction of flight aircraft, in order to achieve the criminal purpose, which belongs to the direct intention, subjective elements with hijacking aircraft crime; third, the defendant after takeoff, threatening to detonate the gunpowder, stress the crew will be flying to Taiwan's behavior, seriously damaged the normal order of the airline, damage to the majority of passengers to life and property and aviation security, which belongs to the crime of public safety; fourth, the accused Sunmou in the boarding the plane has carefully prepared, and threatening to detonate explosives in the plane took off, act of unlawful seizure stress aircraft course changed, so has the objective elements of the crime of hijacking aircraft.

Thus, fixed hijacking accused Sunmou behavior is correct

Nineteen, the crime of major accident liability

　　[Case please]Defendant: Nie, male,38, Ltd electric. The defendant Nie1990Years as a construction company, the first construction company Shanghai branch of the construction of Pudong in shanghai.1992Years1Month, the defendant Nie in charge of laying of Shanghai * * school student dormitory building engineering construction site temporary power wires, serious illegal operations, not according to the laying of underground power lines should be used to cable and closed with a metal tube and protective zero terminating operation regulations, the electricity for the380Laminated rubber line VAC wearing without protective earthing protective zero metal tube, and is not closed, directly buried in the only7~10Formation cm deep. The same year4Monthly maintenance on the line, the defendant Nie and violation of wire joint should be located on the ground in the junction box set, the wire connector only underground metal protection tape bandage directly after the release without sealing measures of tube. The same year7Month2Day12When the40Xu, due to rain infiltration of underground metal protection tube, the bonding wire joint leakage, current through the metal protection between the sleeve and the wood shed metal column wire constitute a loop, causing workers in charge of drying in the sun a wire sheet, upper limbs touch the live wire and coma, after the hospital rescue invalid death.

　　[The problem]What are the main characteristics of major liability accident crime?

　　[Sentence]The court said the defendant, Nie as a professional electrician, in the laying of underground power lines, illegal operation leave hidden dangers of accidents, resulting in others due to electric shock and death, the act constitutes a crime, shall be punished in accordance with the law.

　　[The legal analysis]According to the "criminal law" article134Provisions, the so-called serious liability accident crime refers to the factories, mines, forestry, construction enterprises or other enterprises, institutions and workers, because not management, violates the rules and regulations, or compel illegal adventure homework, thus causing major casualties or other serious consequences. Its main features are: first, the subject of crime is a special subject, including factories, mines, forestry, construction enterprises or other enterprises, institutions and workers. Second, the subjective aspect of the crime can only be negligent. Including careless negligence and negligence of over confidence. The fault here is to act on their own the behavioral consequences of mental attitude. Third, objective aspect of crime is in the production process, not because of management behavior, violation of regulations or compel illegal adventure homework, and the occurrence of major accidents or other serious consequences. Fourth, the object of crime is the public security. In the case of the situation, characteristics of the defendant Nie one act is fully consistent with the crime of negligently. First, the defendant Nie as a construction company professional electrician, have the main elements of the crime of major accident liability. Secondly, the basic rules of the defendant violated the electrician operation, serious illegal operations laying circuit, and illegal again in the accident repair, leave hidden dangers of accidents caused by electric shock, Sun Mou death results, consistent with a major liability accident crime objective aspect of elements. Thirdly, in the subjective aspect, the defendant Nie also exist fault, he as an electrician, may cause leakage and causing electric shock death is the consequence of should foresee the violation behavior, but it did not foresee, so there exists the negligence. Fourthly, a causal relationship between the sun's death results and defendant Nie one illegal operations. Nie a violation of public security. Thus, set on a major liability accident crime Nie behavior is correct.

　Twenty, illegal carrying of knives that endanger public security crime

　　[The case]Defendant: Hu, male,25Years, the Guangxi Zhuang Autonomous RegionACity people, farmers.1992Years1Month23Was arrested thursday.1992Years1Month18Day, the defendant Hu in the stall across Guangdong ZhanJian Railway Station square, bought spring knife200The knife50Put, ready toAThe city sold. Same evening23When Xu, Hu to carry the250The control of the tool, a Zhanjiang bound for Wuchang162Passenger train,19Early in the morning1PM, in the car was marshals seized.

　　[The problem]What are the elements of illegal carrying of knives that endanger public security crime?

　　[Sentence  The court said the defendant, Humou to illegally carry knife, knife more, into the station, endanger public safety, has been constituted illegal carrying of knives to endanger public security crime, should be based on "criminal law" article130Provisions of punishment.

　　[The legal analysis]According to China's "criminal law" article130The provisions of article, endanger public safety refers to the crime of violation of public traffic regulations carrying illegal knives, carrying knives in public transport, and endangers public security, if the circumstances are serious behavior. Its elements are: first, the object of this crime is the violation of public security, and normal management of state for public transportation. Second, the objective aspects of this crime for illegally carrying knives in public transport behavior. Third, the subject of this crime is general subject, namely, as long as there is the capacity of criminal responsibility, reached the age of criminal responsibility of the person can constitute this crime. Fourthly, the subjective aspect of this crime is intentional, and only can be direct intent, negligence does not constitute the crime of. In the case of the situation, the defendant Hu's act is fully consistent with the elements of illegally carrying knives in public transportation crime. First, Hu has reached25Years old, has the capacity of criminal responsibility, in accordance with the main elements of the crime. Second, Hu buy spring knife, knife to the back, ready toAThe city sold. Humou that carry the knives to get on the car, in violation of traffic regulations, endanger public safety, and still ride from Zhanjiang to Wuchang162Passenger trains, show that the subjective intent, consistent with the subjective element of this crime. Third, Humou implementation carrying knives to get on the car, seriously endanger public safety behavior, in line with the objective elements of crime. Fourth, Humou acts of violation of public security, accord with the object of this crime. Therefore, the defendant Hu's behavior constituted illegal carrying of knives to endanger public security crime, should be in accordance with the "criminal law"130Provisions of punishment.

　　Twenty-one, the production, sales do not meet hygiene standards of food crime

　　[The case]Defendant: Zhu Jia, male,70Years old, self-employed households.

Defendant: Zhu Yi, male,39Years old, self-employed households1993Years9Month6Days, the city residents food production, Fuchun cooked Lai shop sales of saline goose cooked, there is122People had food poisoning, which10People in the hospital.9Month7On the morning of8PM in the epidemic prevention station, after receiving the report, immediately sent personnel to the investigation, treatment. After understanding, poisoning is the production, use Fuchun cooked food stores selling cooked Lai induced, in9Xu arrived on the Fuchun cooked Lai shop, the shop will inform the actual operator Zhu Jiazhi wife Yan, a written notification and issued a "stop management". Yan Mousui sent people informed Zhu Jia, let it back. The defendant Zhu Jia reports on the way back after spring rich ripe Lai Dian, and inform the defendant Zhu Yi, let it go. Zhu Jia, Zhu Yi, Zhu Jia has rushed to the residence, the defendant Zhu Jia and Yan Mou to think, the customer is edible6Japan made saline goose cooked food poisoning,7Japan made briny goose cooked food may not have a problem, if the business economy will suffer. Zhu Jiasui decided to7On the part of the production of saline goose cooked Lai get rich ready meal spring shop to sell, Zhu Yi agreed, then, Zhu Jia, Zhu Yiyu9Month7On the afternoon of8On the morning of two times9Month7On the part of the production of saline goose cooked to spring rich cooked food store sales. The store sells salted goose cooked vegetable edible city residents, and104Food poisoning, which6People in the hospital. The city sanitation and antiepidemic station again after receiving the report, the relationship between the investigation understands Fuchun and spring two rich cooked food shop, make spring rich ripe Lai shop business, the city health and epidemic prevention station of surplus products, poisoning container, feces and processing cooked food utensils were also detected, identified the food poisoning events were due to Fuchun and spring rich in production, two cooked food store sales saline goose was cooked alginolyticus Vibrio pollution.

　　[The problem]Zhu Jia, Zhu Yi's behavior constitute what crime?

　　[The people's court verdict think, Zhu Jia, Zhu Yi's behavior has constituted the crime of unqualified food production, sales. In accordance with China's "criminal law" article143The provisions of article, in prison for sentenced Zhu Jia3Years, a fine of RMB1.26Million yuan, Zhu Yi sentenced to1Years, fine1800Element.

　　[The legal analysis]According to China's "criminal law" article143Provision, production, sales do not meet hygiene standards of food crime refers to the act in violation of the regulations on health management of national food, knowing that it is not conform to the hygiene standards of food production, sales, causing serious food poisoning or other severe food borne diseases, cause serious harm to human health behavior, it consists of: the essentials first, the object of the crime is a double object, including national system of food hygiene supervision and consumer health right and life safety. Second, the crime objective aspect is in violation of the regulations on health management of food, production, sales do not meet the health standards of food, causing severe food borne diseases, causing serious harm to human behavior. Third, the subject of crime is general subject. Fourthly, the subjective aspect of the crime form can only be intentional, the reason is that the strict and sale of food does not conform to the hygiene standards and continue to produce and sell, the behavioral attitude to the serious harm results, both may be a laissez faire psychological, may also be negligent psychology.

In this case, the defendant Zhu Jia, Zhu Yi production, they knowingly selling cooked brine geese have caused others food poisoning case, in order to avoid economic losses, will still have not yet sold salt goose food to sell, obviously its subjective on may again cause others to food poisoning results take the laissez faire attitude. Because of its production, sales of cooked food inspection do not conform to the hygiene standards of food, and its behavior caused occur hundreds of food poisoning accident. Fully meet the production, sales do not meet hygiene standards of food crime object, objective aspect, subject and subjective elements. Therefore, the court is the right of the conviction and sentencing.

　　Twenty-two, the crime of smuggling

　　[The case]Defendant: Yang, male,34Years old, a border brigade deputy captain. Defendant: Lin, male,29Years old, a border police officer. The defendant Yang at a border brigade Deputy captain, was responsible for anti smuggling work, for profiteering, in1993Years2In August, et al and smugglers Chen Mou (dealt with) and smuggling, smuggling of cigarettes from Macao to Zhuhai agreed sales, by Yang sent, sent boats escort carrier cigarette boats and collect fees from escort. At the same time, Yang in Zhuhai City Wan Chai for loading cigarette "Pearl06014"Ships. Then, the name of the defendant Lin Yang collude to perform tasks assigned to the sea3Armed police (dealt with) wear uniforms with guns, driving a speedboat to Macao near the sea - armed smuggling cigarettes, ships arrived in Zhuhai.1993Years2~4In August, Yang has a group of forest4A total of smuggled cigarettes2300Box, the total value of RMB517.5Million yuan, the person to be stolen4.82Million yuan. Lin has armed smuggling cigarettes5Second, a total of2The box, the total value of RMB652.5Million yuan, the money4.33Million yuan, after the incident, Yang returned the stolen money2Million yuan, Lin returned the money4.28Million yuan.

　　[The problem]How should the punishment of Lin, Yang Mou behavior?

　　[Sentence]The court ruled that, Yang, Lin as the national staff, in charge of the anti smuggling, to obtain illegal income, in violation of the customs regulations, by taking advantage of his position, for traffickers armed smuggling cigarettes, his behavior constituted the crime of smuggling covered by arms. In accordance with the "criminal law" article157Provisions shall be given a heavier punishment, sentenced to yang to death, deprived of political rights for life, the confiscation of RMB8Yuan Lin; sentenced to life imprisonment, deprived of political rights for life, the confiscation of RMB3Million yuan.

　　[The legal analysis]According to Chinese criminal law, any armed smuggling crime refers to the crime to carry weapons, including weapons to protect shipping, smuggling and smuggling behavior. Any armed smuggling crime is a serious damage to foreign trade control of crime, the subjective aspect of intentional, and generally illegal profit-making purposes; objective aspect is violating the customs regulations, evade Customs supervision, evaded customs duties. In this case, the defendant Yang, Lin for profiteering and smugglers and smuggling, therefore has the intention of smuggling in the subjective, but the defendant Yang, Lin as the national staff responsible for the anti smuggling work, should be more social harmfulness that smuggling, but they break, cover armed smuggling, the smuggling crime subjective malignant than molecular general more; in the objective aspect, the two defendants use convenient position responsible for anti smuggling work, send the anti smuggling officers armed escort ships away and smuggling, the smuggling of common armed for smuggling more dangerous, more adverse effects. And Yang, Lin armed smuggling amount is particularly huge, Yang in the joint crime of smuggling plays an important role in the planning and organization, Department of principal; Lin in the common crime of smuggling plays a secondary role, is an accomplice. So, the people's court's decision is correct.

The crime of accepting bribes twenty-three, company, enterprise personnel

　　[The case]Defendant: Qian Mou, male,38Years old, a electronic company (collective economic organizations) manager.1995Years3January1995Years5Month, the defendant Qianmou in some electronic components Corporate Events, use convenient position, has received the Yang Mou (dealt with) the bribery of HK3000Yuan, Toshiba card53cmColor TV sets, Toshiba card168L - a refrigerator, a English computer typewriter, Aiwa playback machine,24KA gold necklace,24KGold heart-shaped piece a, as Yang obtain illegal interests100Million yuan.

　　[The problem]What are the elements of company, corporate officers taking bribes?

　　[Sentence]The court said the defendant money, a behavior has formed a company, corporate officers taking bribes, should be in accordance with China's "criminal law" article163Provisions of punishment.

　　[The legal analysis]According to China's "criminal law" article163The provisions of article, the company, the enterprise personnel bribery, refers to a company, enterprise personnel who take advantage of their office, extort or accept bribes, for the benefit of others, a larger amount of behavior, its constituent elements: first, the object of the crime is the normal management activities of enterprises and reputation. Second, the crime objective aspect for the company, the enterprise personnel who take advantage of their office, extort or accept bribes, to obtain benefits for others. Third, the subject of this crime is a special subject, which refers to the company, the staff of the enterprise. Fourth, in the subjective aspect of this crime is behavior person to direct intent, indirect intent or negligence does not constitute a crime. The direct intentional content, specific performance for the person who knowingly taking advantage of his position, to seek benefits for others, is a personal behavior, will violate the normal management of company, enterprise and its reputation, harm the healthy development of the company system, and knowingly solicit or accept bribes.

In this case, the defendant money a behavior completely meet the requirements of companies, corporate officers taking bribes. First, money is the electronic components company, belonging to the company, enterprise work personnel, in accordance with the main elements of the crime. Second, money in a subjective illegally accepting bribes Yang, and yang to seek illegal interests, is the deliberate malpractice. Third, money in the objective implementation using the convenience of duty, illegally accept Yang bribery behavior of property, in line with the objective of this crime. Fourth, money is a behavior greatly damaged the normal management activities of the company and its reputation, accord with the object of this crime. So, the money a behavior should be based on "criminal law" article163The provisions of punishment, the court's judgment is correct.

Twenty-four, the crime of insurance fraud

　　[The case]Defendant: Chen, male,30Years old, individual transport operators. The accused Chen to1994Years7Month8To a People's Insurance Company of China will color TV, the stereo and other high-end appliances insured value6Million yuan of property insurance.1995Years9Month accused Chen, as a result of gambling debt4Million yuan gambling debts, but unable to repay the debt, on the germination of creating insurance accident insurance swindling huge evil. The defendant then with extremely low price buy others abandoned old household appliances placed its home, the original color TV, stereo and other high-end appliances out of hiding to relatives.1995Years10Month20Day, Chen deliberately to indoor items lit, cause a fire, to buy the old household appliances all burned. Then the occurrence of insurance accident to pretend a People's Insurance Company of China, and defrauding the5Million huge insurance.

　　[The problem]Chen's behavior should be crime? It has what characteristic?

　　[Sentence]The court ruled that, the accused Chen to defraud insurance money for the purpose of creating insurance accident, deliberately, for a People's Insurance Company of China5Million huge insurance, has constituted the crime of insurance fraud, should be based on "criminal law" article198Provisions, are to be sentenced to the crime of insurance fraud sentenced Chen6Years, and she2Kaiyuan fine.

　　[The legal analysis]According to the "criminal law" article198The provisions of the crime of insurance fraud, the so-called refers to violation of laws and regulations on the management of insurance, insurance and intention of fraud by fictional insurance object or accident insurance and other methods, insurance claim to the insurance company's behavior. Its main features are: first, the object of the crime is our country's Insurance system. Second, including the objective aspect of this crime is insurance fraud behavior,: the insurant deliberately falsifying the subject matter of the insurance, the insured, the insured or the or the beneficiary intentionally causes losses to the occurrence of an insured accident degree, or fabricate non insurance accident, the insured, the insured intentionally cause loss of property insurance accident, the insured, the beneficiary intentionally causes the death, injury or sickness of the insured defrauds insurance money. Third, the subject of the crime is, the insured, the insured, the beneficiary and the unit. Fourth, the crime in the subjective performance is intentional, intention and insurance fraud.

From this situation, we think, the accused Chen for defrauds insurance money, have abandoned waste household appliances household appliances to the property insurance, and set them on fire, deliberately creating insurance accident, for the value of5The huge insurance million, in violation of our insurance system. The behavior in the object, objective aspect, subject and subjective aspects are completely in line with the four characteristics of the crime of insurance fraud. Should be regarded as the crime of insurance fraud conviction and sentencing.

　　Twenty-five, the crime of money laundering

　　[The case]Defendant: you Mou, male,28Years old, a bank clerk.1994Years8Month9Day in drug-related crimes, underworld organization Jia Mou (dealt with) suddenly find the defendant to swim a said: "brother, this time the wind is very tight, you know, I used to manufacture, sell that thing to make money, afraid of a little accident, have several years of effort, to later without relying on. So, I want you to do me a favor, find a way to insurance for my several money, also from my any menace from the "rear", even the jail, what also not afraid of." Due to a tour of a Jia have to brothers commensurate, due to the face, then help him up in the bank10Million accounts. Soon after, with the crime, Jia a confession of the crime and its money where, you immediately arrested trial.

 

　　[The problem]What is the crime of money laundering?

　　[Sentence]The court ruled that the defendant knowingly, tour of a Jiamou money, drug-related crimes, underworld nature organization crime of illegal income, and provide the fund account to conceal the source and nature, already constitute the crime of money laundering, according to the "criminal law" article191Provisions, sentenced to a prison to swim3Years, fine2Million yuan.

　　[The legal analysis]According to China's "criminal law" article191The provisions of the crime of money laundering, the so-called refers to the violation of our financial management regulations, that is the illegal income of drug crimes, organized crimes of the underworld, the crime of smuggling and its yield, and provide funds to account for its, assist the property into cash or financial instruments, through the transfer payment to help fund transfer, assist the funds remitted abroad, or the illegal gains are other ways to cover up, conceal the crime and return the nature and origin of behavior. Its main features: first, the object of the crime is a national financial management order. Second, the crime objective aspect is done for the nature and source of the illegal income to conceal, conceal the crime and its yield behavior. Third, the subject of the crime is general subject. Fourth, the crime in the subjective performance is deliberately.

From the situation, you and Jia Su said the brothers, knowing that the property is the illegal income by drug-related crimes, to participate in the underworld, and deliberately to provide the capital account, disrupted the normal order of financial management, the condition of the act is fully consistent with the crime of money laundering, the defendant should be in my country "criminal law" article191The provisions of the crime of money laundering conviction and sentencing.

　Twenty-six, the crime of falsely making out special invoices for value-added tax

　　[The case]

Defendant: Gu Mou, male,40Years old, general manager of a private enterprise.

Defendant: Lin, male,30Years old, manager of a private enterprise.

Defendant: Lu Mou, male,28Years old, unemployed. The defendant Gu, in1993Years5Month opened a private enterprise * * industry limited company in the city of personal investment, self appointed general manager.1994Years to learn by making out special invoices for value-added tax can earn a lot of money from it, he started planning this "the road to riches". Since the same year11Month, the defendant Gu and another company's manager Lin began to name * * Industrial Co. Ltd for others Xukai VAT invoice, collect fees from. To1995Years5The moon is, in a short span of seven months, the defendant Gu, Lin is successively for16Foreign trade import and export company Xukai value added tax special invoice17, Co64Share price, a total of RMB1.06Million yuan, tax1800Million yuan. To get the money132Million yuan, Lin money18Million yuan. Shenzhen city unemployed Lu Mou, from1995Years1January5In August, has repeatedly introduced to others Xukai special VAT invoice28A, the price316Million yuan, tax558Million yuan, Lu Mou to charge fees2.7Million yuan. After the incident, recovered to the money56.7Million yuan, HK2500Element and used money to buy a car, the crown.

　　[The defendant Gu, Lin, Lu Mou to conviction and sentencing?

　　[Sentence]The court said the defendant, Gu, Lin to obtain illegal profits, violate the rules and regulations of the state tax administration, for others Xukai VAT invoice, its behavior has constituted the crime of falsely making out special invoices for value-added tax. The defendant Lu Mou for illegal personal objective to introduce Gu to others Xukai value added tax special invoice crime, the act of falsely making out special invoices for value-added tax also constitutes a crime, the defendant Lin Gu, stealing the national tax amount is particularly huge, if the circumstances are especially serious, to the national interests have especially heavy losses. In the common crime, the defendant Gu, Lin plays a major role, Department of principal; the defendant Lu Mou played a secondary role, is an accomplice. According to China's "criminal law" article205Provisions, sentenced to Gu to death, deprived of political rights for life; sentenced to death penalty with Lin2Years of execution, deprived of political rights for life; sentenced to a fixed-term Lu15Years.

　　[The legal analysis]According to China's "criminal law" article205Provisions, the so-called making out special invoices for value-added tax is defined as others Xukai, do so for oneself, let others do so for oneself, the others Xukai value added tax special invoice behavior. Its main features are: first, the object of the crime is a national tax administration system. Second, the crime objective aspect is, for others Xukai, do so for oneself, let others do so for oneself, the others Xukai value added tax special invoice behavior. Third, the subject of this crime can be both a natural person, legal person also can be. Fourth, it must have the criminal intent subjectively, generally with the profit motive.

From this case, the defendant to in order to make a lot of money, began planning a "by making out special invoices for value-added tax" that "the road to riches", and Lin a name to the X industry Co. Ltd. for others falsely making out special invoices for value-added tax, in order to obtain illegal profits for the purpose of stealing the national tax,, and if the amount involved is especially huge, if the circumstances are especially serious, has caused great losses to the interests of the state. The defendant Lu Mou introduced to others falsely making out special invoices for value-added tax amount is huge, profiteering. Their actions are in line with the crime of subjective and objective elements. But in the common crime, Gu, Lin plays the leading role, is the principal; and Lu Mou plays a secondary or auxiliary role, is an accomplice. So different to them to Xukai special VAT invoice crime were sentenced to punishment is correct.

Twenty-seven, the crime of infringement of copyright

　　[The case]Defendant: Ren Mou, male,38Years old, the individual bookseller.1993At the end of the year, Deng Xiaoping "anthology" third volumes was invented, the learning "Deng Xiaoping anthology" hot. A company union workers because of learning need, entrust the * * bookstore to buy "Deng Xiaoping anthology" three volumes1.5Million copies, the individual as a bookseller from this information the rich smell smell, he with amazing efficiency and * * signed purchase agreement bookstore. As a way to the bookstore buy a genuine "Deng Xiaoping anthology" third volumes, find a provincial Party school printing factory, entrust the factory still, printed cover plate. He called three printing factory undertakes inside page printing and binding work completed, printing and binding, as a delivery to * * bookstore, illegal income amounted to2Million yuan.1994Years5Month30Japan, as a is a Public Security Bureau arrested according to law, he became the first pirate leaders since the founding of new China, the criminal cases of copyright.

　　[The problem]As a committed any sin, what is its main characteristic?

　　[Sentence]The court ruled that, as a violation of the copyright of others, constitute the crime of copyright infringement, according to China's "criminal law" article217The, was sentenced to prison7Years, confiscate the illegal income, and impose a fine5The element.

　　[The legal analysis]According to China's "criminal law" article217The provisions of the crime of infringement of copyright, the so-called, is for the purpose of profit, in violation of copyright laws and regulations, without the consent of the copyright owner rights or rights related to copyright permission, reproducing and distributing a written work, music, film, television, video works, computer software and other works, publishing his personnel are the exclusive copyright books, without audio and video producers to license, copy and distribute the recording, producing, selling fake signatures of others works of art, the larger the amount of illegal income or other serious circumstances of the act. Its main features are: first, the object of the case infringes complicated object, namely, the copyright owner of the work. Some copyright, and copyright related rights. Rights for the dissemination of works, as well as the management order of the cultural market. Second, as the objective aspect of this crime, without permission from the copyright owner, reproducing and distributing a written work, music, movies, video works, computer software and other works, publishing his personnel are out of copyright books, without audio and video producers to license, copy and distribute the recording, production, the sale of counterfeit sign art works. Third, the crime in the subjective performance is intentional, and for the purpose of profit. Fourth, the subject of the crime is general subject.

From this case, Ren Mou to seek illegal interests, signed the purchase agreement with * * bookstore, pirate "Deng Xiaoping anthology" three volumes, the illegal business amount is huge, poor quality of the pirate, causing bad political influence in the public, if the circumstances are especially serious. The defendant as a subjective intent, objective implementation of pirate others writing illegal profit behavior, in violation of the copyright management regulations, violated the copyright of others, disrupt the country to the cultural market management order, according to China's "criminal law" article217The provisions of article, constitute the crime of copyright infringement, should be to violate copyright crime punishment according to law.

Thus, the court's decision is correct.

Twenty-eight, the crime of rape

　　[The case]Defendant: a full, male,25Years old, unemployed youth. All the defendants a peacetime and his wife Kim don't divorce, many were gold refused, a full and thus killing motivation.1990Years7Month3On the evening of10PM, a full with often fighting, molesting women disciples (Party A19Years old) (dealt with), in the famous gold a cheat to the village on a small hill, have forced the gold Dutch act, not the gold from the two defendant, and a bundle of gold in the hills of a pine tree, a full name is a dagger to kill with a gold. A murderer, asked what to say, said: "as long as you don't kill me, want me to do anything." So a party to the said: "you are a husband and wife, before I kill her, you do (sexual) one!" A full see a intention, he said: "I'm not interested, do you why." Party A will be a gold solution, to rape, a full said: "this place is uneven, to the plains below to do. After brought up." A crafty after the gold back to the hill, a full, two people once again will gold tied in the pine tree, and the rope will Jinle dead alive.

　　[The problem]A full constituted the crime of intentional homicide, whether to constitute the crime of rape?

　　[Sentence]The court ruled that, all one does not constitute a crime of rape (joint), the reason is: the first, the rape of women crime subjective performance can only be direct intention, and has sexual intercourse purpose, indirect intent can not commit the crime of rape; second, according to the provisions on joint crime in Chinese criminal law, its subjective aspect is only common direct intent and indirect intention, one side of the direct intent and the other side of the indirect intent can not constitute joint criminal intention.

　　[The legal analysis]According to China's "criminal law" article236The provisions of the crime of rape, the so-called refers to the violence, coercion or other means, against women will, forced sex behavior. The main feature of this crime is: first, the violation of the object is women's sexual inviolability of rights, namely to refuse any man other than legal spouse's sexual rights. Second, in the objective aspect of the performance by violence, coercion or other means, violation of women's will, in the women's afraid to fight, can not resist, or in do not know against state and forced sex behavior. Third, the subject of this crime is man, woman is not independent of which constitute the crime of rape, but can be used as the instigator or to help commit rape. Fourth, the subjective aspect of the crime of intentionally, and with the purpose of rape.

From this situation, we think, all constitute a crime of rape (joint) the main reasons are: first, a full and Party A to rape a gold have common direct psychological state. Second, a full and a common implementation against a gold will, by violent means, stress a gold and a sexual behavior, but a full is not as a way to implement. A full tried to kill his wife, tons of wife tied to the tree, so that Party A to kill his wife, this is at risk, is afraid to fight, can't resist. When Party A intends to do evil, full of a duty to take active measures to stop, to protect his wife without its shame, but a full chose the negative action, make a success of the rape, direct provision of such omission obligations not from the law, the previous behavior but due to all the defendants some of the.

Thus, a full each other a rape help, subjective for direct intentional crime, the objective is adopted act of omission, apparently has constituted the crime of rape (joint).

Twenty-nine, the crime of intentional homicide

　　[The case]Defendant: Cheng, male,29Years old, high school culture, workers in a chemical factory. A trip on the1993Years3The crime of affray sentenced3Years, when released, often at night to carry around triangular scraper.1996Years9In early January, Cheng too the prismatic blade is not sharp, but also to buy a0.30Cant scraper meters long with me,9Month16On the evening of9When Xu, Cheng and his friend Chen wandering in the local people's road people's Hotel diet department before, met acquaintance Zhou, Wu Kuang a, et al. Zhou, Wu Kuang, etc. then to process to cigarettes, Cheng Wu Kuang, to each one, not for weeks, weeks to seize the entanglement process clothes and. The week's hand through, occurrence of procrastination, weeks to process face two. Cheng injured back a few steps, then pull out the triangular scraper carrying up to week left rib bone knife, hurt the heart, week fell dead. After seeing this surrendered to the public security organs.

　　[Problems in addition to the recidivist, the behavior constitutes the crime of intentional injury, or form (indirect) intentional homicide?

　　[Sentence]The court said, the act constitutes a crime of intentional injury. The main reasons are: the process of subjective for weeks of revenge, want to give him a severe look, but for the death belongs to the error, and only constitute the crime of intentional injury.

　　[The legal analysis]The crime of intentional homicide, is deliberately illegal deprivation of life behavior, is the most serious violations of human rights crimes. The main feature of this crime is: first, the object of this crime is other people's right to life. Second, the crime objective aspect is illegal deprivation of life behavior, the acts and omissions may constitute. Third, the subject of the crime is general subject, who at least14At the age of criminal responsibility of the person can constitute this crime. Fourth, the crime in the subjective performance is intentional, including direct intention and indirect intention.

Combined with the analysis of the composition of the crime of intentional homicide, we think, a process of a behavior (indirect) of intentional homicide, the main reasons are: the attitude of Cheng in the subjective performance for the week's death results is to let, not negligence. Cheng knowingly using triangular blade sharp stabbing each other, may make the result of death, but allow someone to continue, there let death results, Cheng is not hurt Zhou intentionally, and death results due to negligence. Therefore, the court is not appropriate for a certain range of qualitative.

　　Thirty, the coercive indecency, insulting women sin

　　[The case]Defendant: Liu, male,27Old city, a young man. The defendant Liu LED7Human tricycle and a street factory loaded vehicles collided, both sides quarrel. The other woman Zhang forward to reason, be Liu to a sleeve tearing. And Liu colleague Wang Mou (dealt with) by saying: "the sleeves pull bad too little, to take her clothes off." Another Xue (other processing) also said: "on her pants." Liu to show its "ability", to Zhang skirt pull broken, brassiere torn, and pinch touch a breast. The rest of them also took the opportunity to get a breast, breast, body, cause pudenda and abdominal Zhang scratches30Multiple. And Zhang together when women Tangmou man accused the defendant's insult, indecency, Liu took down shirt and bra all torn, the Tang bare chested. The police arrived, will LiuMou a gang arrested.

　　[The problem]Liu's actions constitute what crime?

　　[Decision of the court verdict think, the defendant LiuMou behavior has made China "criminal law" article237The coercive indecency, insult women provisions of the crime, and because the said of peaceful times., tearing up the women's coat, forced obscene, insulting, if the circumstances are especially bad, so severely punished according to law.

　　[The legal analysis]According to China's "criminal law" article237Article, please the coercive indecency, insulting women sin refers to the violence, coercion or other means, forced insulting a woman's behavior, the main features are: first, the object of this crime is the social morality and dignity of women's rights. Second, the crime objective aspect is by violence, coercion or other methods, forced obscene insult women behavior. Third, the subject of this crime is general subject, so long as has the legal responsibility ability and reached the age of criminal responsibility, the subject can become this crime. Fourth, the crime in the subjective performance is intentional, and is the direct intentional.

In this case, the defendant LiuMou in defiance of the law and social ethics, in said of peaceful times., Zhang, Tangmou two workers inside and outside the coat off, forced obscene, flirt, insult, a serious violation of the rights of the person, if the circumstances are especially bad. Liu's act is fully consistent with the subjective and objective characteristics, thus constituting a coercive indecency, insulting women sin, should be in accordance with China's "criminal law" article237Herein, shall be given a heavier punishment. Thus, the court's decision is correct.

Thirty-one, the crime of duty encroachment

　　[Case please]Defendant: in one, male,1951Years4Month17Department of health, an industrial company Department of materials distribution cooks and attendant. The defendant in a in a Industrial Company Department of materials distribution as the cook and the attendant, in1995Years4Month9Day (Sunday) the charge of stealing steel, the distribution of the non fixed length steel6.19Tons (value RMB14237Yuan), to a ton of old30Yuan price sell to a Building Materials Company Limited Lin, get the money9900Element. The defendant to pay in RMB300Yuan to help a Deng loading, the rest of the money of RMB9600Yuan for himself. In the same month16Day (Sunday) afternoon5PM, an industrial company Department of materials distribution temporary Dengmou (at large), while the Distribution Department officer that defendant in a stolen out of the machine, the Distribution Department non fixed length steel7.68Tons (value RMB17664Yuan per ton)1600Yuan price and sold it to a building materials company Lin, get the money of RMB1.22Million yuan. The defendant in a back to the Distribution Department knows this matter, then to the company report by going back to all the money from the hands of deng. At the same time, Deng to the defendant in a borrowed Renminbi1200Yuan yuan, the remaining money1.10Million is the defendant in a possession. After the incident, the defendant in an active account two crime after all, and the proceeds of RMB2.06Million full refund of some Industrial Company Department of materials distribution.

　　[The problem]To one's behavior how qualitative?

　　[Sentence]The court said the defendant, to ignore the law, take advantage of the convenience of working, occupy an industry company Department of materials distribution property, large amount, his behavior had constituted the crime of duty encroachment, should be in accordance with China's "criminal law" article271The provisions of article, sentenced to a fixed-term3Years.

　　[The legal analysis]According to China's "criminal law" article271The provisions of article, the so-called post occupy crime refers to the company enterprise or any other unit who, by taking advantage of his office, the unit of property illegally for himself, a larger amount of behavior. Its main features are: first, the object of the crime of company, enterprise property investor ownership and company, enterprise property. Second, the performance of the company enterprise or other unit personnel in the objective aspect, using the duty or work facilities, occupying the company, enterprise property, large amount of behavior. Third, the subject of this crime is a special subject, namely the enterprise, company or other unit personnel. Fourth, the performance of this crime in the subjective aspect is direct intention, purpose of illegal possession of company, enterprise property, namely the intention will own a company, enterprise property to himself or third people who all. In the case of qualitative, there should be the crime of corruption or embezzlement differences should be. The crime of embezzlement, according to China's "criminal law" article382Article, refers to the state personnel who take advantage of their office, embezzle, steal, cheat or by other means of illegal possession of public property act. Although the two crimes have the purpose of illegal possession of the property subjectively, objectively are embezzlement behavior using the convenience of duty, but also has a strict distinction: first, the violation of the object, the object is different, the former is a violation of the ownership of public properties, violations of the object is public property, the latter invasion company, enterprise property ownership, violations of the object is company property. Second, the subject of crime, the subject of the crime of the former is the national staff, which refers to the personnel of state organs, enterprises, institutions, State-Owned Company, people's organizations and state organs, public State-Owned Company, enterprise or business unit assigned to the personnel of non State-Owned Company, enterprises, social groups and institutions engaged in official business and other units of staff. Thirdly, the objective behavior in different ways, the former refers to only use a post, and the latter includes both use a post, also will use the work.

Analysis of the case, from the above we think, the defendant in a company, the cook and the attendant, namely the personnel of the company, its occupation of the property of the company is to use its when attendant to the company's property work and non duty then. Again, the defendant in a recovery from Deng Deng somewhere the theft steel sold the stolen money, illegal possession, also belongs to the occupation of the company's property behavior. In a body to the company's attendant, not only have the right to recover from a duty during a Deng theft of company property, but also its obligations and responsibilities. However, in the recovery of stolen property shall be returned to the company, on the purpose of illegal possession of a is based on the work, then, this batch of goods accounted for. To sum up, in some of the act is fully consistent with the characteristics of crime of duty encroachment, already constitute the crime. So the court is the right to the defendant sentenced to a particular embezzlement conviction.

　　Thirty-two, carry weapons, knives, explosives at the rally, parade, demonstration of sin

　　[The case]Defendant: Liu Jia, male,47Years old, Han, farmers.

Defendant: Liu Yi, male,28Years old, Han, farmers.

Defendant: Wang, male,38Years old, Han, farmers.

　　1992Years8Month, in a certain rural farmers because the charge, fee, the problem of contradictions and disputes with the local government. After the petition unresolved, mayor Liu Jia and the villagers Liu Yi, Wang led the village20Villagers with a shotgun, kitchen knife, fried stone mountain with the detonator, a tractor stuck in the City Hall square, mayor vowed not to withdraw secretary, would not return to the village. City Public Security Bureau received a report immediately rushed to the scene to be persuasive, evacuation, and propaganda "demonstration law" requirements, the dissolution of backward village waiting. At the same time the main person in charge Liu Jia away from the scene seized, and later by City Hall is mainly responsible for people to do the work to solve the problem.

　　[The problem]What are the main characteristics of carrying illegal weapons, knives, explosives at the rally, parade, demonstration of sin?

　　[Sentence]The court said, Liu Jia, Liu Yi, Wang Mousan is a carrying illegal weapons, knives, explosives at the rally, parade, demonstration of sin, according to China's "criminal law" article297The provisions for three people, were sentenced to prison2Years,1Year and a half and punishment of detention.

　　[The legal analysis]According to China's "criminal law" article297The provisions of article, the so-called carrying illegal weapons, knives, explosives to attend a rally, parade, demonstration is a kind of crime in violation of the provisions of laws, carry weapons, controlled cutting tool or behavior of explosive rally, parade, demonstration. Its main features are: first, the object of this crime is the social public order management. Second, the crime objective aspect is in the Ji'an, parade, demonstration process, carry weapons, controlled cutting tool or explosive behavior. Third, the subject of the crime is general subject, which reached the age of criminal responsibility, criminal responsibility of natural person with ability. Fourth, the crime in the subjective performance is deliberately. Because the assembly, parade, demonstration is an expression of the will of the masses of the masses, and are held in open public places or public roads, once produce an accident, the consequences be unbearable to contemplate. The fault does not constitute a crime.

Analysis of the case, from the above we think, Liu Jia, Liu Yi, Wang and other perpetrators without approval of the public security organ, illegal demonstrations held in violation of the provisions of the law. Actor in the subjective is intentional, and is the main organizer, leader. Objective implementation of carrying a shotgun, kitchen knife, detonators and other behavior, pose a great threat to the social order, hinders the social management order. The act is fully consistent with the carrying illegal weapons, knives, explosives to attend a rally, parade, demonstration of sin. Thus, the court's decision is correct.

Thirty-three, refused to provide evidence of crime of espionage

　　[The case]Defendant: Wang, female,25Years old, Han, cadres.1993Years4Month, work in the Department of a Chinese economic management cadre Wu could not resist the temptation of money, a foreign spy molecules are fake reporter Zhao Moula sewer, many will contain state secrets economic information provided to Zhao, the country suffered great economic loss. Wu's colleague Wang know Wu often to find foreign journalists to send "Manuscript", and Wu Mou to Zhao hotel after dinner.1993Years8In August, China's security organ according to the master, that Wu's behavior is committed the crime of espionage, Wu Mouyu to arrest. But Wu during the trial and refused to admit his guilt. When the public security organ for Wang investigation, Wang Mou that Wu Mouyou committed the crime of espionage, but also refuses to make a statement about the actual situation, refused to provide foreign journalists and Wu set especially Zhao's identity and address, and accused the police inquiry is unreasonable demands because of Wang refused to truthfully provide relevant information the spy molecules, Zhao to carry large amounts of state secret exit, causing major losses to the state.

　　[The problem]Of Wang's behavior should be how qualitative?

　　[Sentence]The people's court verdict think, Wang Mou of the accused person knowing that Wu Mouyou committed the crime of espionage, the state security organ investigates the relevant information and evidence, refused to provide, if the circumstances are serious, in accordance with China's "criminal law" article311Herein, the Wang refused to provide evidence of crime of espionage, and sentenced to2Years.

　　[The legal analysis]According to China's "criminal law" article311The provisions of the espionage crime situation, refused to provide evidence, refers to the crime of knowingly committed the crime of espionage, in the national security organ investigates the situation, collect relevant evidence, refused to provide, if the circumstances are serious behavior. Its main features are: first, the object of this crime is a violation of the normal activities of the state security organs with spies to fight. Second, the crime objective aspect is knowing that another person has committed the crime of espionage, in the national security organ investigates the situation, refused to collect relevant evidence, if the circumstances are serious, the behavior, thus, this crime is a crime of omission. According to the relevant laws and regulations, to the state security organs shall truthfully provide relevant circumstances endangering State security and evidence, it is the obligation of citizens. It did not fulfill the specific legal obligations in objective, so it is a sin of omission. Third, the subject of the crime is general subject, namely those who reached the age of criminal responsibility of legal, criminal responsibility person can constitute the crime. Fourth, the crime in the subjective performance is deliberate, the perpetrator knowingly committed the crime of espionage, and investigate the situation to the state security organs, refuses to provide relevant evidence when. The fault does not constitute this crime.

In the case of the situation, Wang Mou that Wu Mouyou committed the crime of espionage, and refused to report the true situation, refused to provide foreign journalists and Wu set especially Zhao's identity and address, and accused the state security organs inquiry is unreasonable demands, the spy molecules carrying a large number of state secret exit, causing major losses to the state. Wang's behavior in the subjective intention, the objective implementation refuses to provide true information and evidence to the state security organs, a serious impediment to the state security organs against criminal espionage functions, causing major losses to the country. Wang's behavior is in full compliance with China's "criminal law" article311Refuse shall provide evidence of crime of espionage.

　　Thirty-four, excavating and robbing sites of ancient culture, ancient tombs sin

　　[The case]Defendant: Zhang, male,42Years old, was a middle school teacher,19But the years3Month14Because of this case was arrested according to law.

Defendant: Mao Mou, male,36Years old, the original city forest workers,1Such as3Month14Because of this case was arrested according to law.1991Years12Month31Day, the defendant Zhang is a village in the ancient tomb group (city level key cultural relics protection units) have the cultural relics unearthed in the news, and germination of stealing the tomb relics, for their own interior decoration ideas, and on the same day and the defendant hair a plan, and then observe the location.1992Years1Month1On the morning of8PM, by the defendant hair with a hoe, shovel and other tools, along with the defendant Zhang to the Xiang Nanyue tombs, the tombs pre selected for mining. During the period of Wang Mou (dealt with) pass by here, two defendants are called the king, and told him to help the mining, to the afternoon3PM, a total of the excavation of Song Dynasty silver box, such as the grand Tongbao ancient coins6Gold. The silver box unearthed by the crowd of touch and breakage. Dug Bi, in addition to a coin from the defendant Zhang back to hide, and other cultural relics are kept in the defendant hair somewhere. Case by the public security organs cracked, two defendants were arrested, stolen goods recovered. During the trial, the court of first instance commissioned by the provincial, city level cultural relics appraisal committee of two accused the stolen silver box and grand Tongbao ancient coins were identified. Conclusion: stolen Tomb of Song Ji, the box is the three national cultural relics, money for the ordinary cultural relics.

　　[The problem]The defendant Zhang, the hair of a behavior is a crime of theft or constitute a crime robberies Ancient Tombs?

　　[Sentence]The court said the defendant Zhang, two, a violation of the national law on the protection of cultural relics, ancient buried excavation based partnership with historical value, and steal artifacts, has formed a "criminal law" in China328The provisions of the crime robberies ancient tombs, but because of the lesser crime, sentenced to the defendant Zhang detention3Months, and sentenced the accused in a criminal detention2Month.

　　[The legal analysis]According to China's "criminal law" article328Provisions, the so-called robbing ancient cultural ruins, ancient tomb robbing crime refers to the historic, artistic, scientific value of ancient cultural sites, ancient burial behavior based. Its main features are: first, the object of this crime is a violation of the double complex object, namely, the normal management of state ownership of cultural relics and state property. Second, the crime objective aspect is in violation of the protection of cultural relics and regulations, the implementation of the excavating and robbing sites of ancient culture, ancient burial behavior based. Third, the subject of the crime is general subject. Fourth, the crime in the subjective performance is intentional, against the perpetrator knew his raiding behavior is ancient cultural sites or ancient tombs, will cause some harmful consequences, but still the implementation of the behavior. The fault does not constitute a crime.

In this case, the defendant Zhang, a tomb robbing money the subjective intent, and has the purpose of illegal possession, objective implementation of robbing the ancient base buried behavior, in full compliance with China's "criminal law" article328The main characteristics, the provisions of the crime of robbing ancient base buried therefore, constitute the base was robbing ancient crime, rather than the crime of theft.

Thus, the court's judgment is correct.

　　Thirty-five, trafficking and transporting drugs, crime

　　[The defendant: Ma Mou, female,25Years old, a trading company in Hongkong Nanjing office business agent.

Defendant: Chen, male,38Years old, workers.

Defendant: Hu, male,27Years old, a Hongkong trading company in Nanjing representative.1992Years9In mid September, the accused party A, Chen successively in Shenzhen city at the Le Grand Large Hotel and a hotel in Guangzhou City, agreed: collusion by Ma invested RMB6500As to buy drugs money, by Chen to buy heroin50G to a Nanjing trafficking and smoking.9Month15Day, Chen Yuan4000Yuan in Guangzhou bought heroin30Yu G. The horse by plane arrived in Nanjing, told the defendant Hu said, Chen train carrying heroin in9Month17To Nanjing, and then to Hu chen.9Month17At noon, Chen carrying heroin30Grams from Guangzhou arrived in Nanjing, Hu Chen will be connected to the X building432The room and in the afternoon, small pieces of paper by Chen Caihao packaging heroin use and assigned each packet of heroin dose, three defendants heroin packets into60Yu Xiaobao (each weighing about0.15G). Late that day, Hu heroin hidden in the X building safe. To9Month18The day before the incident, in the building432,429Guest rooms, by Ma, Hu was sold to Lee5Parcels, money400Yuan; Zhang heroin sold by Hu5Parcels, money300Yuan, sold to a season of heroin4Parcels, money300Yuan, sell gold a heroin10Packet (unpaid). More than a total of heroin24Small, have much money1000Element.

　　[The problem]How Ma Mou, Chen, Humou acts constitute what crime?

　　[Sentence]The people's court ruled that the defendant Ma Mou, collusion, Chen made a clear division of labor, in Guangzhou to buy heroin back to Nanjing, and then participate in drug packaging and by Ma et al illicit trafficking, their behavior has violated China's "criminal law" article347The provisions of article, had constituted the crime of transporting drugs trafficking. The defendant Humou that heroin is actively involved in the illegal sale of drugs, its behaviors are in breach of the law, constitute the crime of drug trafficking.

　　[The legal analysis]According to China's "criminal law" article347Provisions, smuggling, trafficking, transporting, the crime of manufacturing narcotics is knowingly to smuggling, trafficking in drugs, transportation, manufacturing acts. This crime is the choice of type A behavior crime, crime as long as the implementation of the constitution, that is the kind of crime; if two or more than two kinds of behavior, also constitute a crime, but not convicted separately and combined punishment for several crimes. In this case, the accused party A, Chen for transport, trafficking of heroin is collusion, and division of labor, should bear criminal responsibility for transport, trafficking of heroin behavior. So, the people's court, Ma Chen trafficking and transporting drugs, crime is correct, because it correctly reflects the defendant Chen De crime, behavior characteristics and the harm to the society, in this case only with Ma, Hu Chen joint implementation of drug trafficking behavior, therefore, responsible only to the common practice of selling the behavior of drug. The people's court Hu committed crime of drug trafficking is correct.

Thirty-six, the organization prostitution crime

　　[The case]Defendant: Wang Xiaoyi, male,32Years old, a machinery factory workers. Ringleaders of defendant Wang Xiaoyi's cousin Wang Xiaojia Department organized prostitution collective.1993Years10One day the king Xiao a month came to Wang Xiaoyi home, with Wang Xiaoyi for the houses of others "Yinwo" to organize the prostitution, and said please along stem, Wang Xiaoyi readily agreed to, and take the money and materials work, is also in charge of the door.1993Years10Month-1994Years4In August, Wang Xiaojia has organized crime3Batch16Passengers for prostitution activities, the defendant Wang Xiaoyi successively "wage income" and "rent" of RMB1500Element. In addition, in the1993Years12The day of the month, the defendant Wang Xiaojia lured foreign young woman Liu to Wang Xiaoyi's, and told Wang Xiaoyi that night let Liu "pick". That night, the victim LiuMou refused to prostitution, the defendant Wang Xiaoyi to Liu Anna in bed, forced to rape, after Liu said: "you is not the flower girl, do not earn money, you don't want to go". Liu was forced into prostitution.1994Years4Month15Day, the public security organs after investigation will be Wang Xiaojia, the Wang Xiaoyi Gang to justice.

　　[The problem]Wang Xiaoyi's behavior in addition to constitute of assisting in the organization of prostitution crime, whether also organize the prostitution of others and the crime of rape?

　　[Sentence]The people's court that, defendant Wang Xiaoyi respectively to assist the organization prostitution crime, organize the prostitution of others and the crime of rape should be in accordance with the combined punishment for several crimes, sentencing, principles of criminal law in our country.

　　[The legal analysis]According to China's "criminal law" article358Tiao Hedi359Herein, we think that the court's decision is not correct. The reason is: the first defendant Wang Xiaoyi knows that his cousin Wang Xiaojia is the first molecular organization prostitution crime, but to actively participate in the organization of prostitution activities, for prostitution money tube material, the door. This is intent on the subjective, objective implementation of assisting in the organization of prostitution behavior. This is fully consistent with China's "criminal law" article358The main feature of the provisions of the third paragraph of assisting in the organization prostitution crime, thus constituting a crime of assisting in the organization of prostitution; at the same time, the defendant Wang Xiaoyi to his house for prostitution molecules, for its use, and the collection of "rent", their behavior constitutes China's "criminal law" article359The provisions of the crime of organize the prostitution of others. In assisting in the organization of prostitution activities, Wang Xiaoyi was forced to rape young woman Liu, but Wang Xiaoyi's rape behavior is not for the purpose of rape, forced prostitution to earn money but Liu profit objective, which is in line with China's "criminal law" article358The provisions of the crime of forcing others into prostitution4The case, so Wang Xiaoyi's behavior should be forced prostitution sin, but not the crime of rape. So for Wang Xiaoyi to assist the organization prostitution crime, the crime of forcing others into prostitution, organize the prostitution of others crime sentencing in accordance with the principle of treatment respectively, the combined punishment for several crimes in Chinese criminal law.

　Thirty-seven, replication, crime of selling pornographic articles

　　[The case]Defendant: Liu, male,30Years old, unemployed. Liu accused of self1986Years after his release, has been wandering in the community, a small business.1992Years, the defendant found society people do selling porn business in the dark. Yellow tape is easy to find buyers, and have good prospects of gain. He decided to sell the "yellow".1992Years5Month, the defendant from place to each disk15Yuan of the purchase price of the "generation today," Queen "," sex "prostitutes work", "wild girl" and the title of the original pornographic videos. Back to Shanghai, he to the neighbor borrowed VCR two Taiwan, and from the store in each box10Yuan of the purchase price of blank tapes100Disc, and then in the house will be obscene video copy on a blank tape. Record after, the defendant began looking for buyers. Soon the replication60Disc "yellow" were sold to the unemployed Zhao and Chen, each box in place10Element.1992Years7Month16Day, the public security organ according to the defendant's confession, in the home and found pornographic videos49Box.

　　[The problem]On Liu's actions can be combined punishment for several crimes?

　　[Sentence]The people's court verdict think, the defendant for the purpose of profit, the purchase of obscene video from outside the band, and then copy100Disk, and will60Tray vendor sold to others, each disk profit from10Yu Yuan, their behavior has violated China's "criminal law" article363The provisions of replication, crime of selling pornographic articles.

　　[The legal analysis]According to China's "criminal law" article363The provisions of article, the so-called copying, selling obscene goods crime, is refers to the profit as the goal, behavior, selling pornographic articles copy. This article is a selective charge, a behavior that actor implement which constitute a crime, two or more than two kinds of conduct which constitutes a crime, or. In this case the defendant LiuMou implementing replication, selling pornographic items of behavior, so its act constitutes a reproduction, crime of selling pornographic articles of a crime, but not convicted separately, and combined punishment for several crimes, therefore, the people's court's decision is correct.

Thirty-eight, the crime of Affray

　　[The case]Defendant: Zhou, male,28Years old, workers in a factory. Defendant: Lee, male,30Years old, a cousin of the week. Defendant: Kong, male,35Years old, a cadre. Defendant: Party A, male,30Years old, a power plant staff. 　1994Years10Month24Day, the defendant Zhou for his brother was Kong beaten, they found their cousin Lee, two people together10People, carrying knives, knife, wooden tools, take a minivan rush to search for a hole. To bore a hole, because one is not at home without a hole, then home door and window glass10Yu block, and threatened the hole is not a never give up. On the way back, Li, Zhou drove nearly collided with a bike, and the rider to minor injuries. The accused manhole a Xin said Zhou et al. Seeking after the fight, then with Party A to15People rushed to a local, bike week, lethal to Zhou et al to contest, Zhou, Li Mou has to strike violently, both sides, used to carry knives, kitchen knives, sticks, chains and picked up bricks, stones to attack each other, fighting, the both sides have damage near the door, not out of the masses Wu, pedestrians have to avoid. The two sides battle two hours Xu, causing serious disorder in local society.

　　[The problem]To Zhou, Li, a hole, a behavior for what punishment?

　　[Sentence]The people's court think, the defendant Zhou, Li Mou, Kong, Party A's behavior has constituted the crime of affray should according to China's "criminal law" article292Provisions of punishment.

　　[The legal analysis]According to China's "criminal law" article292Article, the crime of affray is out of personal animosity, hegemony or other motivations into a partnership to help to fight behavior. The constitution as: first, the subject of the crime is general subject. Second, the crime in the subjective performance is intentional, and for personal animosity, hegemony or other motive. Third, the object of this crime is the social public order. Fourth, the crime objective aspect is motivated by personal animosity, hegemony or other motivations into a partnership to help to fight behavior.

In this case, the defendant Zhou, Li Mou and accused manhole a, a the people gathered, out of personal animosity or hegemony, in defiance of law and social morality, fights with weapons, causing many injuries, serious public disorder results, fully in line with the mob fights crime objective and subjective elements, therefore, constitute the crime of affray.

Thus, the court's decision is correct.

　　Thirty-nine, posing as soldiers try every trick to mislead the public crime

　　[The case]Defendant: Hong Mou, male,28Years old, unemployed youth.1993Years10Month28Day, the defendant Hong Mou by a military arena play people unprepared, stolen uniforms and shoes cap, each one, and then posing as a military of ensembles of political cadres, to recruit actors as, forged letters of introduction and recruitment examination table, successively to four secondary schools to recruit actors, the defendant selected6Female students as the primary object, because these students join the army pants, privately in succession with the defendant made contact, gave the defendant advanced smoking, alcohol and other gifts. The defendant to molestation of two female students, but it is military guest house attendants found the report, the defendant was arrested people.

　　[The problem]The defendant Hong Mou behavior constitutes a crime?

　　[Sentence]The people's court verdict think, the defendant's conduct has been China's "criminal law" article372The provisions of the crime should be to try every trick to mislead the public as soldiers, posing as soldiers try every trick to mislead the public crime.

　[The legal analysis]The crime of endangering the interests of national defense is deliberately endanger the sovereignty, guard against foreign aggression and has a human, material and military related to all the facilities, cause harm to the interests of national defense act. Its main features are: first, the subject of crime, the majority of the general subject. Second, crime in the subjective performance is deliberately. Third, the crime objective aspect is intentionally harm the country's territorial sovereignty, all facilities against foreign aggression and have the human, material and military related, cause harm to the interests of national defense act. Fourth, the object of crime is the national interests of national defense.

Just as soldiers try every trick to mislead the public sin, is posing as soldiers to try every trick to mislead the public, to obtain illegal behavior of interests. Its main feature is the

: first, the object of the crime is a national military prestige and normal activities.

Second, the performance of this crime is posing as soldiers to try every trick to mislead the public behavior in the objective aspect. The so-called posing as soldiers, not only refers to non military fake soldiers, including military soldiers posing as soldiers or specific professional vocational. The so-called try every trick to mislead the public, refers to a soldier's sign, fraudulent activities in the community.

Third, the subject of this crime is general subject.

Fourth, the crime in the subjective performance is intentionally, its purpose is to obtain illegal interests, here said that illegal interests, is not limited to material benefit? Also includes a variety of non-material interests, for example in order to cheat some political to pass or honor treatment, some even in order to cheat love playing with women, etc..

In this case, Hong Mou posing as soldiers try every trick to mislead the public, the subjective intent, objective implementation of accepting bribes, lewd behavior of women, in full compliance with China's "criminal law" article372The provisions of the crime subject and posing as soldiers try every trick to mislead the public characteristic, has formed a posing as soldiers try every trick to mislead the public crime.

Therefore, the court's decision is correct.

　Forty, misappropriation of public funds

　　[Case please]Defendant: Lee, male,22Years old, a farmer, a former Department of employment in second middle school administrators. Li Mou of the accused person in1988Years8January1990Years1In second months, was hired by the school for academic staff, responsible for the printing and payment for the work of students.1989Years2January1989Years8In August, the defendant will its receipts and payments1989Student of the year spring, fall for13791.63Yuan was misappropriated to buy items to repay debt, personal, and to the Sichuan Chengdu, Guangxi Nanning to idle away in seeking pleasure, found that waste export department, Lee delay repayment time, fake receipts, passbook, to cope with this, tried to conceal the crime. After multi trace, the defendant to1989Years12Month28Day,29Within two days of the misappropriation of public funds back all clear

　　[The problem]Lee's behavior constituted the crime of embezzlement of public funds and corruption?

　　[Sentence]The people's court think, the defendant used as Provost duties and, in violation of financial system, embezzlement of public funds for personal use, larger, more than three months not, their behavior has constituted the crime of misappropriating public funds, according to China's "criminal law" article384Shall be punished in accordance with the law.

　　[The legal analysis]The crime of misappropriating public funds, refers to the state personnel who take advantage of their office, embezzlement of public funds for personal use, illegal activities, or larger amount of misappropriation of public funds, for-profit activities, or larger amount of misappropriation of public funds, more than three months without further action. The crime of corruption, refers to the state personnel who take advantage of their office, embezzle, steal, cheat or by other means of illegal possession of public property, embezzlement and corruption are on the subject of crime, have certain common took advantage of his position, but the two also have obvious differences: first, invasion the range of different, the former is the right to the use of public funds, the latter is the ownership of public funds. Second, the purpose of the crime is different, the former is just a temporary misappropriation of public funds, and not always occupied do not have, the latter is the illegal possession of public property to forever. Third, the objective behavior and means different. The former is openly temporarily will funds diverted, return after use, do not use permanently cover embezzlement means; the latter is adopted forge, alter, destroy accounts, documents, documents to steal, cheat, a kind of means to illegal permanent possession of public property.

In this case the defendant Li Moushen for school administrators, using its handling, management of public school (students pay for) the job convenience, without using forged, altered, destroyed the accounts, documents, certificates, steal, cheat or other illegal embezzlement permanently occupied hand segment case, violations of financial system, to embezzle public funds for personal use, and the amount is larger, more than three months to return, fully in line with the characteristics of the crime of misappropriating public funds, should be based on China{The criminal law}Article384The crime of misappropriating public funds shall be punished according to law. As for the defendant in the similar corruption forged receipt, deposit means, because of its objective has been returned to the misappropriation of public funds, that no illegal possession of the purpose of the misappropriation of public funds. After the incident, the fake receipt book behavior to delay repayment time, and can not be used as the previous embezzlement has been transformed into the crime of corruption and thus, the court's judgment is correct.

　Forty-one, the crime

[The case]Defendant: Chen, male,36Years old, the original County Public Security Bureau preliminary hearing. The accused Chen to1993Years3Month29To6Month26In handling the Zhang Mou rape, acceptance of others and the Zhang family's request, to Zhang age were altered, the1973Years to1976Years old, from the age of18Years into discontent18Years, the prosecution of submissions in the making, and the "Zhang knife threat of rape" plot "knife" three words to conceal. Here, Chen has two times bribery criminal family RMB400Element and wine, fruit and other items. After the money has been confiscated.

　　[The problem]On Chen's behavior should be condemned?

　　[Sentence]The people's court thinks, the accused Chen as the judicial staff, used his position to the defendant knowingly, for serious crimes prosecution intentionally leniently, bribes from, its behavior has disturbed the normal activities of the judiciary, had violated China's "criminal law" article399The provisions of the criminal trial, the crime of misuse law in adjudication, according to China's "criminal law" article399Shall be punished in accordance with the law.

　　[The legal analysis]According to China's "criminal law" article399The provisions of the crime of misuse law in adjudication, criminal trial, is refers to the judicial staff, taking advantage of his position, or abuse the law and practise favouritism, clearly knowing the man who is innocent and that he be prosecuted, for that is the guilty one deliberately shield, that he should not be prosecuted, or in the criminal trial activities deliberately contrary to facts and the law of addition. Its main features are: first, the object of this crime is the normal activity of the judicial organ or other law enforcement agencies, to be innocent of illegal crime of misuse law in adjudication of criminal trial and infringement of citizens' personal rights. Second, the crime objective aspect is the judicial staff, in the performance of their duties imposed on knowing is innocent and that he be prosecuted, for that is the guilty one and not make him intentionally protecting from prosecution, or in the criminal trial activities deliberately contrary to facts and the law of addition. Third, the subject of this crime is a special subject, namely, the judicial personnel. Fourth, the crime in the subjective performance is intentionally, and is directly intentionally.

In the case of the situation, the accused Chen (a County Public Security Bureau preliminary hearing) as the judicial staff, accept the request and bribe people, in handling criminal cases, the criminal age and circumstances of the crime with the crime of shield, means, molecular, deliberately contrary to facts, seriously disturbed the normal activity of the judicial authority of law enforcement, the act is fully consistent with China's "criminal law" article399The provisions of the crime of misuse law in adjudication of criminal adjudication. So, the people's Court on the case is correct. However, the accused Chen favoritism, seek illegal interests for others, and acceptance of bribes trustees4000Element and wine, fruit and other items, according to China's "criminal law" article399The provisions of article, the judicial personnel take bribes and bend the law, and constitute the crime of bribery, shall be punished in accordance with the provisions for a heavier punishment.

 

Forty-two, weapons and equipment accident crime

　　[The case]Defendant: Wang, male,20Years old, a monitor unit. Wang Mou of the accused person1993Years9Month4The night guard, two hair bullet private storage pressure submachine gun magazine, and then reloaded without closing the insurance. Late23When the king returned to the camp, the sentry outside the gate sits in Lunan Stone, the butt on the ground, the barrel of a gun in the left leg root waiting. When a class member of Iraq came, squat about hometown arrested criminals in the low wall and Wang behind him. In the conversation, the king forget guns loaded, the right hand accidentally touch trigger, caused by an injury, Yi, the hospital rescue invalid death.

　　[The problem]If Wang's act constitutes a crime?

　　[Sentence]The people's court verdict think, Wang Mou of the accused person as a monitor, in violation of the use of weapons and equipment system, if the circumstances are serious, the accident happened, causing a death as a result of Iraq, has formed a "criminal law" in China436The provisions of the crime of weapons and equipment.

　　[The legal analysis]According to China's "criminal law" article436The provisions of article, the so-called weaponry crime refers to military personnel who violate provisions for use of weapons and equipment, if the circumstances are serious, the accident happened, causing serious injury, death or other serious consequences of behavior. Its main features are: first, the object of the crime is the force of the use of weapons and equipment and management system. Second, the performance of this crime is violation of the provisions for use of weapons and equipment and procedures in the objective aspect, or seriously irresponsible, thus causing serious injury, death or other serious consequences of behavior. Third, the subject of this crime is the active servicemen and military in the staff members and workers. Fourth, the subjective aspect of this crime is negligence. In the case of the situation, in this case the Wang Mou of the accused person, as a monitor, he violates the provisions of the use of guns and ammunition, the two private storage bullets pressure submachine gun magazine, and loaded not insurance. In a conversation with Iran, and because of carelessness accidentally touch trigger, resulting in Iraq a death serious consequences.

Thus, Wang's behavior should be weapons offences, the court's decision is correct.

　Forty-three, leave, be forgetful of one's duties crime

　　[The case]Wei Mou, male,21Years old, a soldier.1993Years12Month8Evening, a prison in the movie. Weimou in dormitory on duty, he leave his post to go to the movies. Wang took the opportunity to sneak into the criminal classes from dormitory, "five or six" submachine gun gas branch, the bullet30Hair, to the audience watching the movie opened fire, killing5Man, wounded14People.

　　[Sentence]The people's court think, the defendant Weimou serious violation of military duties, leaving when on duty, resulting in serious consequences, so the composition of China's "criminal law" article425The provisions of the crime should be forgetful of one's duties, leave, to the punishment according to law.

　　[The legal analysis]According to China's "criminal law" article425The provisions of article, the so-called leaving without permission is a kind of crime that commanders and duty, duty who leaves his post without permission, resulting in serious consequences of behavior. In this case the defendant Weimou, when on duty, leave their jobs to go to the movies, complete set of their duties to disregard the criminals, Wang Mou to slip into the dormitory, stolen firearms and ammunition, to the audience watching the movie shooting, cause5Deaths,14Serious injury. Thus, Weimou AWOL act constitutes a crime, shall be in accordance with China's "criminal law" article425Shall be prosecuted for criminal responsibility.