China criminal law30Years--Based on the typical case as the angle of view

Zhao Bingzhi, Peng Xinlin

Source:The diary of Tang Wei

 

 

Review of the reform and opening up30Years, as an important part of the modern rule of law, criminal law, as the reform and change China law wrote a thick. Through a typical case, we can more deeply understand and appreciate the pulse and signs of progress of China's criminal law, to find and capture the reform and open policy brings to the construction of rule of law in the past historical fragments of chance and change. In view of this, we have to1997Year for the sector, will30The criminal law is divided into two parts, analysis. This magazine is the.

 

China criminal law30Years (on)Based on the typical case as the angle of view

 

Review30The glorious history of China's reform and opening up years, the establishment of a modern rule of law is an implementation of the distinctive themes. As the criminal law is an important part of the modern rule of law, plays a very important role in the process of establishing, the shaping of modern society of rule of law in.

　　30Years, the construction of criminal law in China has made considerable progress, the criminal law has to step a new stair the last. In the establishment of a modern democratic countries under the rule of law in the process, China's criminal law interpretation of a numerous vivid typical case. Each case was deeply branded on the practice of Chinese criminal law development mark, worth aftertaste and thinking. Through this one typical case, we can observe the reform and opening up30The development of criminal law in our country for years, and consider each case for the significance of the rule of law and give us inspiration.

We choose here since1978Years12Since January eleventh of the third plenary session held30Some of the typical cases happened years. Selection of these typical cases, and not just because of their time for social concern, but more important is the more or less affect and promote the rule of law in China's development and progress. They are from different angles respectively show the reform and opening up30The development and improvement of China's criminal law and criminal law practice.

In the1978~1997This19Years, China's criminal law practice there have emerged a number of typical cases of representative. With the passage of time, the case had left the public eye. But in any case, left us thinking is heavy and long.

 

     Case 1: Zhang Zhixin"The counter revolution"Case

Zhang Zhixin, female, the CPC Liaoning provincial Party Committee Propaganda Department cadres."The Cultural Revolution"In our opinion, she openly, clearly indicated that he did not trust Lin Biao, on"The peak of"Disgusted, and thinks that Lin Biao is doing"The left"Opportunist. She suspected that Jiang Qing has a history of problems, think that fanned factionalism, provoking violence, suspect everything, everything is down, someone is doing something. She thought Peng Dehuai in Mount Lu meeting to party a letter advice, is to allow the party discipline, to Comrade Peng Dehuai put on a Right opportunist hat cannot convince people, lead to the inner life is not normal, Party dare not tell the truth.

Zhang Zhixin's remarks were considered"A vicious attack the proletarian headquarters counter revolutionary", she1969Years9Month was arrested, and sentenced to life imprisonment. Zhang Zhixin refuses to accept the decision, in prison suffering from severe schizophrenia, was considered"Feign madness and act like an idiot"And"Adhere to the reactionary stand, to counter revolutionary activities".1975Years2Month26Day, Zhang Zhixin was sentenced to death, the same year4Month4On the implementation.1979Years3Month26Day, the Liaoning Provincial Higher People's Court of Zhang Zhixin"The counter revolution"The case that the rehabilitation. On the same day, the CPC Liaoning Provincial Committee endorsing Zhang Zhixin as a revolutionary martyr.

This is the"The Cultural Revolution"In the people's court"Completely smash"One of the shocked the whole country, the famous case occurred after the.

 

Comments: Zhang Zhixin to defend the democratic rights of the people, against personal worship and for sin, for thought convicted, was eventually cruel cut shot died. In the modern democratic society, is almost unbelievable. That only exist in the old society"I can quell rumours"And"Speaking of fear"In a series of new China, after the establishment of the"The class struggle"And in the political movement has repeatedly repeats itself, it can not be said to be a great tragedy of modern society!Marx once pointed out that:"Old things are always trying to the restoration and consolidation in the new form."The past was swept into the dustbin of history thought of rule by man ", in modern society still have a stirring among the dry bones, Zhang Zhixin"The counter revolution"The case is a typical example.

In today's reform and opening up, we have resolutely abandon the rule of man, fight against privilege, established gradually in the modern human rights, democracy, freedom China let value concept of modern civilization, have the potential to radically values humanity, reverence for life, respect for the law, the justice of crime and punishment, a citizen of birth and death, freedom and exile.

Although Zhang Zhixin passed away, but in the"The Cultural Revolution"After the end of the1979To redress this year in accordance with the law, not only to their individual Chenyuan righted, but also for ten years"The Cultural Revolution"Caused by"Defy laws human and divine"Situation of a thorough negation."The Cultural Revolution"Is composed of the legal system is not perfect cause, and it also makes the system more China imperfect."The Cultural Revolution"During the process of complete destruction of legal nihilism, cause a temporary clamour, trample on the rights of the chaotic situation, caused huge losses to the party and the country, brought great suffering to the people.

　　The Third Plenary Session of the eleven is the modern Chinese"Get rid of the rule of man"And"Towards the rule of law"Watershed, Zhang Zhixin"The counter revolution"Case happened in"The Cultural Revolution", vindicated by the"The Cultural Revolution"After the end of the Third Plenary Session of the eleven, is the best example. It fully shows that China's socialist legal system (especially the criminal legal system), the importance and necessity of the rule of law, also strongly supported the proposed eleven of the Third Plenary Session of the"In order to safeguard the people's democracy, we must strengthen the socialist legal system, the democratization, legalization, so that the system and the law has the stability, continuity and authority, do"According to the law, the law, strict law enforcement, illegal"This one great and decision-making wise and correct.

 

      Case two: the corruption case of Wang Shouxin

Wang Shouxin, female, Heilongjiang province Binxian fuel company manager. From the1971Years12January1978Years8Month, she uses the business market for coal, industrial coal and small coal machine, under the guise of the unit in the"Plan project""Shipbuilding""Buy a car"The grounds, illegal price sale of coal. Then take the cash account, regardless of leaving no receipt means of corruption, embezzlement, totaling RMB50Million yuan. Meanwhile, Wang Shouxin also used6Wan Yuyuan treat, gifts, bribery, corrupt cadres200People. Wang Shouxin is in the"The Cultural Revolution"By the speculative reason,"Rebellion"When he came to power, fuel companies manager. She grasped the right, on the one hand a large number of money, use unscrupulous divisive tactics by the wealth of nations.

　　1979Years10Month20Day, Songhua River area intermediate people's court sentenced to death Wang Shouxin, deprived of political rights for life. Wang Shou convinced not appeal. Cases by the Heilongjiang Provincial Higher People's court after review, that the decision is correct, approved the death penalty.1980Years2Month8Day, Wang Shouxin was escorted to the execution ground executed. Before the execution, Wang Shouxin in the motorcycle guard escorted were paraded through the streets.

Comments: the corruption case of Wang Shouxin after the founding of new China till the end of time is the biggest corruption case, and then general secretary of the CPC Central Committee with Comrade Hu Yaobang major cases personally. Wang Shouxin embezzles the giant, in the national sensation.1979Years9Month, "people's Literature" also published a famous Reportage--"Freak" in between, then called the"The largest since the founding of the embezzler"Trajectory of degeneration of Wang Shouxin as a clue, explores the causes of corruption and political, economic and social causes. Wang Shouxin Fufa, caused a strong reaction in the country, by the broad masses of the people the warm support.

　 70In the late 1980s, punish corruption criminals Wang Shouxin, show that the party and the government to punish the corrupt strong determination and stand firm, at that time not only effectively prevents the social corruption breed and spread the signs, a powerful deterrent to corruption, but also to the formation of70Fresh social climate in the late 1980s and the party's fine style of work and played a very good role, the maintenance of the party and the government's clean image, won the support of the people. From the early liberation, Zhang Zishan Liu Qingshan was sentenced to capital punishment to70In the late 1980s Wang Shouxin Fufa killed, let us see a Republic of China since the founding of new China30Clear track years between strong anti-corruption. These corruption cases not only the community reacted strongly, excite people's mind, and has become China's in-depth development of anti-corruption struggle, the typical case of rule by law in some landmark in the process of.

Influence and promotion of the corruption case of Wang Shouxin on the development of China's criminal law is also reflected in: the China executed a ban on people paraded through the streets of new regulations the foreshadowing. Wang Shouxin was a death sentence conference is held in the Songhuajiang River in Harbin Workers Stadium, at that time5000The venue All seats are occupied. The judge declared: the big embezzler Wang Shouxin brought up! Ring chain hits the ground clank the stadium side porch, then two female bailiff leads the foot with heavy chains tie one's hands behind his back, Wang Shouxin in accordance with the scheduled for shoplifting round the field line, slowly came to the judgment seat.

Wang Shouxin in front of thousands of people sitting in the stadiums, while hard twist tied behind his arms, while bouncing around shouting:"I am innocent! You are the guilty!""I will fight for the truth!"Her feet iron in jumping constantly hitting the wooden floor, making a loud noise. Some police surround rapidly up, stop her screaming, and temporarily changed round the field line, quickly put her in the judgment seat. When the judge sentenced"Big embezzler Wang Shouxin sentenced to death penalty, immediate execution"When Wang Shouxin shouted, and immediately jump:"The Communists are not afraid of death! I die for the truth......"At this time, there was a loud buzz at the meeting. After Wang Shouxin was tie one's hands behind his back, paraded through the streets.

Although Wang Shouxin was the rallying cry very absurd, but caused a very bad. But, as the show and the Wang Shouxin round the field and paraded through the streets after the fact, with modern legal point of view, is undoubtedly the lack of respect for the human rights of prisoners.

Therefore, the negative effect that Wang Shouxin executed when the public, gradually by the legislative and judicial personnel know.1997The "Criminal Procedure Law" article212Article5Money is expressly:"The death penalty should be released, should not be publicly."

  

 

      Case three: Lin Biao, Jiang Qing counter revolutionary group

To Lin Biao, Jiang Qing led the counter revolutionary group principal Lin Biao, Jiang Qing, Kang Sheng, Zhang Chunqiao, Yao Wenyuan, Wang Hongwen, Chen Boda, Xie Fuzhi, Ye Qun, Huang Yongsheng, Wu Faxian, Li Zuopeng, Qiu Huizuo, Jiang Tengjiao, in"The Cultural Revolution", collusion, work hand in glove with, by virtue of their position and power, their schemes and intrigues, using legal and illegal, open and secret, Wen and Wu by various means, premeditated attacks, the persecution of the party and state leaders, usurp Party and state power, to overthrow the dictatorship of the proletariat regime.

　　1971Years9In March, Lin Biao, Ye Qun, Lin Liguo, Zhou Yuchi, Jiang Tengjiao, conspiracy to kill President Mao Zedong, instigated anti revolutionary armed coup, Lin Biao treason flight, led by Lin Biao counter revolutionary group was exposed and crushing. Led by Jiang Qing, Jiang Qing, Zhang Chunqiao, Yao Wenyuan, Wang Hongwen"The gang of four"The counter revolutionary group is in the process of counter revolutionary conspiracy, until1976Years10Month were revealed and crushing.

　　1980Years9Month29Day, the Standing Committee of the fifth session of the National People's Congress16The meeting decided to set up the Supreme People's Procuratorate special prosecutor's office and the tribunal of the Supreme People's court, judge Lin Biao, Jiang Qing counter revolutionary group ringleader. Tribunal of the Supreme People's court to the court, the court of review, a decision method to the ten counter revolutionary group ringleader Jiang Qing, were sentenced to death (with a two-year reprieve, life imprisonment and)16Years to20Years in prison, and is the final judgment, not appeal. From the1982Years to1983Years, Shanghai, Beijing, Sichuan, Zhejiang, Liaoning, Henan, Hunan and other high-level, intermediate people's court, Lin Biao, and Jiang Qing counter revolutionary group in the core members of the land, the Lin Biao counter revolutionary group in the core members of the army military court China people's Liberation Army, also in accordance with the law of public trial.

Thus, in the national scope successfully concluded Lin Biao, Jiang Qing counter revolutionary group.

 

Comments: Lin Biao, Jiang Qing counter revolutionary proposal is in"The Cultural Revolution"Occurring during the ten years of turmoil especially significant counter revolutionary criminal cases, the principal is restrain by law, justice, declared"Defy laws human and divine"The end of the era, marks the beginning of a new era of the rule by law. The ten years of catastrophe, is above the law, and trample the law, not bound by law, any violation of the people's democratic rights, act endangering State security and that defy laws human and divine state, has gone for ever.

From the painful lessons of history of the country and the people to suffer heavy losses, the people's deep understanding to develop socialist democracy and the extreme importance of strengthening the socialist legal system. Therefore, in the crushing Lin Biao, Jiang Qing counter revolutionary group, the masses and cadres have a strong desire to strengthen socialist democracy and the legal system, the Party Central Committee also pay special attention to this problem, at the Third Plenary Session of the eleven to promote socialist democracy and strengthen the socialist legal system decision. Then take many measures, recovery and improve the democratic system, strengthen the legislation and judicial work, promote the development of the national situation of stability and unity and consolidate.

In addition, the principal of the Lin Biao, Jiang Qing counter revolutionary group trial and punishment, also shows that we must resolutely do the party's eleven plenary session"According to the law, the law, strict law enforcement, illegal"Legal requirements, earnestly implement the equality before the law (especially the equality principle of criminal law). No matter what, officer is much, a high power, there are multiple, as long as his behavior to harm the interests of the nation and people, in violation of state criminal laws, constitute a crime, there is no exception to state trial and punishment; and those who should be protected by law of the citizens personal rights and the democratic rights should be protected by the laws make no exception, truly citizens in the equal application of criminal law.

Ten principal trial Lin Biao, Jiang Qing counter revolutionary group case, although all party, political, military officials, and mostly in getting the party and state leaders ranks, including nine who served as vice chairman, member of the Politburo Standing Committee, committee member, vice premier of the State Council, the people's Liberation Army Deputy chief of staff, but they are not above the law of privilege, not allowing it to be still unpunished. In fact, they are all paid a heavy price for their crimes, by the justice and legal punishment, come to lose all standing and reputation. To sum up in a word, to Lin Biao, Jiang Qing counter revolutionary group trial is an important milepost China towards social democracy and the rule of law, the rule of law, the establishment of a modern rule of law has epoch-making significance in china. 

 

     Case four: Han Kun bribery case

Han Kun, former assistant Shanghai rubber products research engineer.1979Years11Month, due to Han Kun wife of a county in Fengxian Qianqiao rubber factory work of relatives, the township party secretary money bridge three times to ask Han Kun, Han Kunsui serving as their money Fengxian County Bridge commune team enterprise technical adviser, by Sunday, overtime, finally successfully exported products for supporting the rubber sealing ring, a year for a rubber plant turnaround13Million yuan, collects for the national festival6Million yuan. This will not only make the near collapse of township enterprises make the dead come back to life, but also filling a gap for the country.

      In order to repay Han Kun's hard work, the press enterprise successively to the issuance of the approval3400Yuan reward bonus. Who knows, this is3000Yu Yuan, became the Han Kun constitute a so-called"Bribery"Evidence.1981Years11Month, namely Han Kun employed money bridge rubber factory two years later, a ripple across the country to combat economic crime and illegal activities in full swing. Han Kun corruption District procuratorate trial. So the Han Kun fate reversal: isolation and examination, raid, promotion engineer qualification is cancelled......This is money Qiao xiang think active"Hero"The sinner into overnight, resulting in80In the early 1990s "Guangming Daily headlines as""Han Kun events"National debate for nearly two months before and after the expansion. It finally moved to Zhongnanhai, the Secretariat of the Central Committee had held a meeting specifically to discuss the case, conclusion set: Han Kun!

In the center of"Han Kun events"The announcement, State Minister of labor, Zhao Shouyi, intellectuals use spare time in the second occupation, statement, made it clear that can receive appropriate remuneration attitude. Almost all the media from the central to local have reported. Since then,"A Sunday Engineer"Become a legitimate, a large number of intellectuals have to serve the country, contributing to the society more extensive play.

　　"Han Kun events"After that, the central issued two important decisions: one is to the National Engineering and technical personnel as the Han Kun as has been put in prison, acquitted all; two is to stop all review under review. This makes the country a large number of like Han Kun that intellectuals from the prison, and also makes some are under review or"Isolation"Intellectuals regained freedom.

 

Comment."The Han Kun case"Although has the past20Many years, has brought us many heavy thoughts. This debate Han Kun crime and non crime, from the outset, not only pay attention to the fate of a person, it relates to the major problems of science and technology personnel whether and how the use of spare time for the country and social services, which is related to the reform and opening up. It should be said,"The Han Kun case"Occurrence is closely related with China's reform and opening up the social background.

The time is1981In the spring, but Chinese the political climate is still cold,"The left"The idea that there is a considerable market in the community. People in the concept, understanding is not uniform, and we in the construction of legal system is not perfect, in the eyes of some people, the Han Kun behavior must punish with due severity.

　 In fact, from the perspective of development, crime and non crime Han Kun, also should see its behavior has no harm to society. In short, is to look at his behavior and the effect of the reform and opening up, the socialist countries is detrimental or beneficial. In fact, Han Kun do good, not only without any harm to the society, but is made major contributions to the state and collective. If like Han Kun such behaviors are found guilty of words, give the scientific researchers and intellectuals who will give one's ability and cleverness of reform and opening up the cause of building socialism?

Fortunately, a"The Han Kun case"The discussion of the meaning of the process, implement the intellectual policy, especially for the intellectuals to create a dedicated one's ability and cleverness and relaxed environment process, has been more and more recognized by. Today we review the Han Kun bribery case, for a deep understanding of the party's eleven plenary session of the epochal spirit,To understand the difficult course at the beginning of the reform and opening,In order to encourage us to further emancipate the mind, strengthen the construction of socialist rule of law, promote the rule of criminal law to keep pace with the times, has a very important significance.

  

 

      Case five: Jiang Aizhen homicide

Jiang Aizhen, female, Xinjiang production and Construction Corps Agricultural Division eight144The nurse corps hospital. Because Jiang Aizhen was libel framed, personality and reputation suffered severe persecution and humiliation, she was crying without the door, unbearable, to1978Years9Month29Gunmen of libel persecutor of revenge, killing three people, injuring one person.

After the case, "people's Daily" in the1979Years10Month20The journal carries "Jiang Aizhen why murder" one article, immediately aroused strong repercussions at home and abroad. Many cadres and the masses to write articles, sympathy, support, support for Jiang Aizhen, called for the severest punishment libel against Jiang Aizhen perpetrators. The scope, the impact of large, are rare.

　　1984Years9Month, Xinjiang Shihezi intermediate people's court verdict, the crime of intentional homicide sentenced Jiang Aizhen to life imprisonment. The Jiang Aizhen verdict of the first trial, appeal.1985Years1Month16Day, the the Xinjiang Uygur Autonomous Region Higher People's court made a final decision, Jiang Aizhen has commuted the prison15Years. In view of the fact that Jiang Aizhen was in prison, she was repeatedly commutation, and in1991Years out of jail.

 

Comments: from the Jiang Aizhen homicide case, actually not complex. But why was in the community caused such a strong reaction, once by "people's Daily" attention?   

     From the criminal law point of view, Jiang Aizhen homicide has received so much attention and was finally court lighter"A net", nothing more than is the result of the following two factors: one is the special victim is clearly at fault; two is the sympathy of public opinion on Jiang Aizhen. In this case, the second factors are even bigger than the first factor. Jiang Aizhen for revenge of libel persecutor, gunmen killed three people, injured another, especially serious consequences, when lunzui sentenced to death. Despite the court eventually sentenced to Jiang Aizhen in prison15Years is whether reasonable, whether to conform to the principle of suiting punishment to crime, only the case judgment to the victim is clearly at fault this sentencing to be fully considered, is worthy of praise.

 

　 On the crime of intentional homicide sentencing, not only to see whether causing death to the victim, but also integrated into the case and the influence of human behavior and personal dangerousness and social harm others, with all the facts of a case as the basis, according to the subjective and objective comprehensive that unity principle. The obvious mistakes in the case, the defendant's culpability degree decreased. The degree of fault of their own, of course, will also affect the evaluation of the accused person risk size in the very great degree which will affect the severity of the penalty, it is normal phenomenon.

 

In this case, the court for sentencing Jiang Aizhen there is a very important consideration factor, that is public opinion. Jiang Aizhen shot and killed three people, injured another, not only aroused public indignation, but get a lot of cadres and the masses of the widespread sympathy, support and compassion, but punishing libel against Jiang Aizhen perpetrators. Public opinion is a lighter court to Jiang Aizhen"A net"Sentenced to15In the course of the years, undeniable.

 

We think, public opinion to the judicial moderate and reasonable intervention, is necessary for the healthy development of a society, which is also the people to express their opinions and demands and to achieve an effective driving force of social justice. The court at the discretion of punishment given appropriate consideration is reasonable, but can not blindly. After all, public opinion is not the embodiment of justice, justice for the find, not necessarily to the largest number of the largest local voice. In fact, countries not only need to listen to the voice of the people, more responsible for the guidance of public opinion on the rational direction. Measurement of penalty should be full account of all the circumstances of the case (if the victim has no obvious fault), appropriate to consider public opinion, but not blindly, this is not only to ensure the judicial justice and criminal, criminal law a country into a symbol of maturity, rationality.

  

 

     Case six: Dai Zhenxiang play the market

　　Dai Zhenxiang, the original Chinese North China Municipal Engineering Design Institute (Tianjin) civil engineer, associate research nomography Tianjin City Council Deputy Secretary general.1985In the spring of inspiration, in the party's reform and opening-up policy, he leave without pay, and other technical personnel founded"The application of Technology Development Company"The state, without a penny, contact30A plurality of units from the construction of housing, business amounted to3000Yu Wanyuan, undertake Limin Road Engineering, large quarters for more than thirty years to build the building has not been modified, near10Million square meters, so that thousands of residents to get rid of the bad living conditions, was also as a pioneering work.

      At the same time, from the Dai Zhenxiang play the market in this case, we have a more profound understanding of the amendment of our country1979Years of punishment code"Play the market crime"The necessity and importance of.1979Years in the criminal code"Play the market crime"Due to the fuzzy and elastic broad concept which is called the economic field"Pocket crime", was hailed as a"Play the market is a basket, what can be put in a".

 

Cancel and decomposition of planned economy"Play the market crime"Not only is the inevitable requirement, protection of civil rights, but also conducive to the development of socialist market economy and the fight against real economic crime. Thankfully, the reform of the economic system and the rule of law progress has to die in one's bed play the market play the market crime, this crime"Pocket crime"Charges has been in1997Cancelled years penal code amendments, withdrew from the stage of history. Cancel play the market the accusation of the crime and the related behavior to delete or decomposition had become one of the highlights the highlight of China's legal civilization and progress, become China's criminal law in particular is a microcosm of the legislation of criminal law has made great progress.

A year later, when the building has been built to the four layer, but he was as major cases of economic crime investigation, the company was forced to disband,1988Years9Month14Days of Tianjin City Intermediate People's court sentenced Dai Zhenxiang to play the market in prison4Years. Dai Zhenxiang refuses to accept, appeal.1988Years12Month30Days of Tianjin Municipal Senior People's court made a final ruling on the case of Dai Zhenxiang play the market, dismissed the appeal, upheld the. Dai Zhenxiang refuses to accept, appealing to the Supreme People's court.1993Years6Month22Day, the Supreme People's court started the trial supervision procedures, rescind the Tianjin Municipal People's Court on the case of Dai Zhenxiang play the market related criminal judgement and the criminal ruling, and instruction of Tianjin City Intermediate People's court for a retrial of the case Dai Zhenxiang play the market, Tianjin City Intermediate People's court in1993Years11Month10To re trial, acquit Dai Zhenxiang.

So far, the shock of Beijing and Tianjin, affect the national, Tuo Yanda8Year old Dai Zhenxiang play the market finally solve the case.

 

Comments: Dai Zhenxiang play the market disclosure, caused widespread concern in society, especially in the law field caused a shock. "Science" magazine in1989Years1Month in Shanghai devoted to the Beijing, Tianjin, Shanghai, Wuhan, experts, scholars of criminal law in the case of Dai Zhenxiang play the market forum, the experts and scholars mostly on judgment disputed. In fact, Dai Zhenxiang play the market case also is a misjudged case.

 

Why not a complicated case would be a miscarriage? Careful analysis, including human factors, there are social reasons. Considering the circumstances, in the20Century80In the late 1990s90In the early 1980s, China is in the transition from planned economy to socialist market economy, planned economy and market economy two legal concept collide. From the planned economy to the legal view, national staff leave without pay, and operation of commercial housing is naturally play the market; the market economy legal view, will draw the opposite conclusion, Dai Zhenxiang's behavior is not forbidden by law, should be without rebuke, let alone.

From the social effects of view, Dai Zhenxiang's behavior for the benefit of the people, solve the wages, bonuses for employees of Orient Corp, municipal construction, pay a lot of money tax......These are the country, collective, and personal thing, which indicates that Dai Zhenxiang's behavior is not only harmful to society, and it is useful to the society. He not only should not be punished, phase reaction is encouraged and support. If the economy to deal with crime, apparently against the requirements of the socialist market economy. So the vindication of Dai Zhenxiang play the market wrong, can be said to be justice, is the embodiment of legal justice, Comrade Deng Xiaoping's southern tour speech is"Three benefits"A vivid manifestation of. 

 

     Case seven: Chinese American may direct, Li Zhuoming cheat the standby letter of credit

　　1993Years3At the end of the month, Mei straight party (America Ji), Li Zhuoming (American Ji) was introduced to Hebei province Hengshui City, to"Attract investment"Fraud credit as criminal activities. They successively to the Agricultural Bank of Chinese Hengshui Center branch president Zhao Jinrong, vice president Xu Zhiguo submitted false"Attract investment"Letter of commitment and fabricated USA Yalian (Group) Limited company profile and other materials, for Zhao, Xu trust.

Since then, Zhao Jinrong Yu Tongnian4Month1Day and2On behalf of the Hengshui branch of Agricultural Bank of China trade union affiliated huro Industrial Company and Mei, Li signed three amount respectively50Billion,16Billion,34Billion dollar "cooperation agreement" the introduction of foreign investment in the development of. Then, Mei straight side, Li Zhuoming to the Hengshui branch of Agricultural Bank of China issued "the issuing instructions". Mei, Li two people provide any guarantees and collateral to the Agricultural Bank of China Hengshui branch in the absence of Zhao Jinrong, Xu Zhiguo, cheat4Month5Japan opened to the applicant, the Agricultural Bank of China Hengshui branch to the issuing bank, Sally from investment (Bahamas) Limited company as the beneficiary, a year is not irrevocable transferable200A total amount of100Standby letter of credit billion dollars.

　　4Month6Day, Li Zhuoming provided may direct the location, the standby letter of credit to his physical property director Mai Xihua (Canadian).1994Years4Month25Day, Hebei province Hengshui intermediate people's court to fraud was sentenced to fixed-term Mei15Years, additional deportation; with crime of fraud Li Zhuoming sentenced to fixed-term10Years, additional deportation. The two defendants pleaded not guilty, appeal. Hebei Provincial Higher People's court1994Years5Month12Make a final ruling, dismissed the appeal, upheld the.

Comments: This is happening in our country20Century90In the major financial fraud. Chinese American, Li Zhuoming and Mei"Attract investment"Cover, take the fictional facts and a means of hiding the truth, for the Hengshui branch of Agricultural Bank of China200A total amount of100Standby letter of credit of billions of dollars, the amount of fraud of the giant that is the first in the country.

Although after the incident, China's judicial organs and the relevant departments to immediately take a series of emergency measures, and in the relevant country police and financial institutions under the coordination of the Agricultural Bank of China Hengshui branch opened200A total amount100The funds payment does not appear during the effective period of the standby letter of credit billion dollars to indicate in the credit period, but the Agricultural Bank of China therefore spent a lot of human, material and financial resources, suffered huge economic losses, the financial credit also was seriously affected. Mei, Li two people not only a huge amount of fraud, and the circumstances of the crime is particularly serious, severely punished by law is behoove.

In this case, Mei, Lee made two although the Department of foreigners, but it is a crime in China in the field of crime, and the circumstances are especially serious, in accordance with the basic principles of territorial established by the criminal law in our country under the jurisdiction of the criminal jurisdiction, our country has the jurisdiction of the case is beyond doubt. At the same time, foreigners Mei, Li two people not to enjoy diplomatic privileges and immunities, the crime does not need to be resolved through diplomatic channels.

This case also relates to specifically applicable to foreigners in the penalty method of domestic crime in China--Deportation. Deportation is forced to leave China foreigners crime in penalty method (edge) environment, foreigners it is only suitable for the crime, the crime Chinese not suitable, does not have the property generally applicable. In this case, in order to avoid Mei, Li two people stay do harm to our country and the interests of the people in our country, to prevent them from continuing to implement the crime in our country, the trial court to Mei, Li two people at the same time, additional sentenced to deportation penalty, is legitimate and reasonable.

    The penalty method is specially suitable for foreigner's provisions in the penal code"Deportation"Not only conducive to punish, in the domestic foreign crime in our country, but also conducive to integrate with the international community, embodies the openness and Modernity in China's penal code, which is beneficial to promote the internationalization and modernization of criminal law in our country.

China criminal law30Years (below)Based on the typical case as the angle of view

 

    From the1997Years since the criminal code enacted, the development of criminal law in our country have entered a new stage. Lay a solid foundation for the progress and development of the code of criminal law in China in the new period.

　　1997Years penal code includes general principles, specific, annex three parts, a total of15Chapter, will1979Years penal code192Provisions, increased to452Provisions, the law of the scale, scope, in the field of legislation in China is unprecedented. Revision of the criminal code exceeded and developed in many ways1979Years of penal code, the great reform, significant progress has been made in. In general,1997Penal code revision is the new criminal code Chinese history the most complete, most systems, most has the flavor of the times and has milepost sense, greatly promoting the rule of law in China and even the whole process of building the rule of law.

However, the pace of social development is never cease, compared to the actual social life and judicial practice, the law always has a certain lag. In order to make the development and the social development law is consistent, along with the social development situation, careful and timely repair or make the new law is also essential. As an important part of national law criminal law is no exception.

In fact, China's criminal law legislative work and not because of1997Years penal code revision and stop. On the contrary, the frequency and content of view, criminal legislative activities is one of the most active fields in legislation. Since the1997After the criminal code enacted, by2006Years6Month29On the "criminal law amendment (six)" by the Standing Committee of National People's Congress, were explained by a decision, the six amendment, nine criminal law legislation in the criminal law legislation. The content relates to endanger public security, undermining the order of socialist market economy, company, enterprise management, order that disturbs the order of social management, corruption and bribery crime, a wide field.

　　1997This more than ten years after the promulgation of the criminal code, we must not forget, it is this part of the new penal code system is revised, and then a series of criminal legislation, criminal justice in our country leads to the last and to a new level, promote the rule of law in China continue to mature, rational, civilized, harmonious.

We also can not forget, it is a classic case of a strong response, excite people's mind that emerged in the decade of the criminal law practice, directly or indirectly affects the process of China's criminal law.

 

    Case: the case of Zhang Ziqiang

　　1991Years and1996Years, Hongkong resident Zhang Ziqiang, Qian Hanshou, Liu Dingxun the plot and funded by Zhang Ziqiang, Guangdong Province in Shanwei illegal to purchase large quantities of explosives, detonators and blasting fuse, smuggled into Hongkong. The Zhang Ziqiang gang in Guangzhou, Shenzhen, Dongguan City, many plot, respectively1996Years5Months and1997Years9Month kidnapped Li, Lin and Guo of Hongkong in a huge, blackmail"The ransom".

　　1994At the end of the year to1995At the beginning of the year, Chen Zhihao, Ma Shangzhong, Liang Hui, Cai Zhijie, Yu Hanjie, Huang Yi and others in Shenzhen City, Tianjin city rob supplies integrated trade center in the bill of lading, raise a number of steel fence, the victim Li caused the death of the robbery.

 

Defendant Chen Zhihao, Ma Shangzhong, Zhu Yucheng, Li Yun et al. In Guangzhou, Shenzhen many conspiracy, successively in1991Years6Months and1992Years3Month, carrying buy illegal in mainland guns, bullets, rob Jinpu two times in Hongkong, loots7Between the gold a goldsmith.

Guangzhou City Intermediate People's court think, in the common crime, Zhang Ziqiang, Chen Zhihao, Ma Shangzhong, Qian Hanshou, Zhu Yucheng, Li Yun et al. Organization, planning, command and other major role, are the principal, shall be in accordance with its participation in or organize, command of all criminal punishment. On Cai Zhijie29One, according to their respective criminal facts, circumstances, consequences and in the role of common crime, respectively assume corresponding responsibility.

In the hospital1998Years11Month12Make a judgment, found Zhang Ziqiang guilty of illegal business crime of smuggling of weapons, explosives, ammunition, kidnapping, the combined punishment for several crimes, decided to implement the death penalty, deprivation of political rights for life, the confiscation of RMB6.621Billion yuan. The Zhang Ziqiang case of the other30More than an accomplice in the crime were sentenced to death, life imprisonment, are to be sentenced to confiscation of property penalty, etc..

    1998Years12Month5Day, Guangdong Provincial People's high court rejected Zhang Ziqiang's appeal has made the final ruling, maintaining the original.

 

Comments: Hongkong residents Zhang Ziqiang and head of the criminal group in the last ten years reach the peak of perfection made by the end of last century crime, known to the world as"The robbery""The first in Asia". The robbery, extortion and kidnapping at tens of millions of yuan up to16.38Billion yuan of crime"Performance", again and again to refresh"The Guinness book of World Records"Therefore, Zhang Ziqiang also won the"The thief"The"Laurel".

However, the Zhang Ziqiang case and the trial has attracted people attention and the attention of the world, not only because of its extremely serious crimes and the crime income astronomical figures, but also because the case is complex and special: the case for Hongkong and the mainland criminal common crime, crime and crime of Hong Kong, the number of all the people in the mainland are intertwined; arrested and tried and punishment. Therefore, in the investigation and trial of the case, about Hongkong and mainland Chinese conflict of criminal jurisdiction and related issues, especially in places has caused heated discussion and controversy in Hongkong.

The case of Zhang Ziqiang"The trial"Although already ended, but the debate and discussion of criminal jurisdiction conflict arising from the Hongkong and the mainland and its related problems but be just unfolding, and then push the pace established practice of interregional criminal judicial cooperation relations, but also to our"One country two systems"Interregional legal relation under the proposed more realistic deeper problems.

 

    Case two: Zhu Shijian, corruption, huge amount of property of unknown origin

Zhu Shijian, the former Yuxi Hongta tobacco (Group) the chairman, president.

　　1993Years to1994Years, Yuxi cigarette factory in the subordinate Hongkong Huayu trade development limited storage revenue from the sale of cigarette and cigarette processing profits retained earnings in Singapore a total of2857Million dollars. Zhu Shijian ordered the company total accountant Luo Yijun will be the interception to the Yuxi cigarette factory and Huayu company account outside the store, and prescribed by its signature authorization before use.

　　1995Years6Month, Zhu Shijian and Luo Yijun, Qiao Fake has two times planning will the money to take300Million dollar dividing.

　　1995Years7Months, according to Zhu Shijian Luo Yijun, a power of attorney signed by Huayu company, there will be the account in paragraph355Million dollars into Singapore businessman Zhong Mou account. Among them, Zhu Shijian won the174Million dollars, Luo Yijun won the68Million dollars, Qiao Fake won the68Million dollars. The money after the incident had been recovered.

　　1998Years8Month6Day, the public prosecution to the Yunnan Provincial Higher People's court to Zhu Shijian for the crime of embezzlement, the crime of huge unidentified property.1999Years1Month9Day, the Yunnan Provincial Higher People's court verdict, that Zhu Shijian plays the decision, the role of the organization, in the common crime culprit, anti crime organization, participation of all responsible for the crime shall be sentenced to death. But in view of its and major meritorious service to surrender, and the money recovered, economic losses has been saved and other circumstances, be given a mitigated punishment according to law. Zhu Shijian is also guilty of the crime of huge unidentified property, should be combined punishment for several crimes according to law. Zhu Shijian was sentenced to life imprisonment, deprived of political rights for life, the confiscation of RMB20Million yuan. Zhu Shijian did not appeal.

After the first trial lawyer Zhu Shijian, Ma Jun to lawyers on behalf of the National People's Congress Standing Committee submitted the application, request according to the actual situation and relevant laws and Zhu Shijian crime in China to amnesty.

 

Comments: Although Zhu Shijian corruption, huge amount of property with unidentified sources in the dust has settled, but in the field of criminal law in our country, in Yunnan, especially in Yuxi, the mention of Zhu Shijian, people's memory does not fade.

As Zhu Shijian and Hongta group is famous degree, the case that had aroused great sensation. The now active in many China entrepreneurial business, Zhu Shijian was not a not essential name. Is this person, from51Years old, in the18Years, a small local cigarette factory into a"Empire"Create total profits and taxes, nearly one hundred billion.1997Years, when he left, according to estimates,"Hongta mountain"Brand value353Billion yuan. In the country180A plurality of cigarette factory, Yuxi cigarette factory for many years to maintain the level of equipment technology, export taxes, seven first.

     In Yunnan, an economically backward minority areas out of a"Hongta Road"By the relevant departments of the state, and some experts, scholars as"A banner China national industry". Zhu Shijian himself also because of its special contribution has won the national labor model, the national outstanding entrepreneurs, the ten reform and influential man honorary title, repeated by the party and state leaders met.

Be relative to18About one hundred billion yuan for the state contribution to profit, as the state-owned Mister Zhu Shijian, his salary is meager, he18Annual income plus bonus but80Million, and enormous contribution he made to the country that is disproportionate compared. This is also the time many people for Zhu Shijian Ming gravamen, feel very sorry for the reason. Some people even think that, in the case of Zhu Shijian, is a national system is not reasonable prior, Zhu Shijian illegal behavior in the post. This view although some exaggerate, but out of the defects of manager salary system.

In our view, the Zhu Shijian case is indeed largely reflects the defects of the manager of state-owned enterprise salary system, but it should be to improve and perfect the relevant system through system reform, and not cause"Rich poor Temple Abbot"The root causes of crime. The old Zhu Shijian has a brilliant experience, made major contributions to the state, but he did not establish a correct outlook on interests, not often think of the victims of greed, also is not Chang Huai self-discipline of the heart, can not withstand the temptation of money, lose all standing and reputation, for which he had many.

In the socialist Chinese, no matter who, regardless of how much contribution, credit is very high, as long as the breach of Party discipline and state law, should be seriously investigated and punished in accordance with the law. In fact, this is also our party's consistent attitude. Back in the early days of the Anti Japanese War, Chairman Mao"Open cut Ma Su"The approval, and shot a meritorious, peerless or matchless bravery or valour and crime of the Red Army General Huang Kegong Huang Ke, and not because of its high credit hard to give the wrongdoer a way out. In the Zhu Shijian corruption, huge amount of property with unidentified sources in the case, also can't because Zhu Shijian has made major contributions to the state, do not hold or not shall be investigated for criminal responsibility according to law. This is the necessary requirement of the principle of equality before the law. Must not engage in so-called"Make up for one's error","Merits equal demerits"Of course, before Zhu Shijian and the performance of the contribution he made to the country, as an important factor to evaluate the degree of danger man, can be properly considered in the measurement of penalty.

In fact, Zhu Shijian penalty when lunzui, it was sentenced to life imprisonment, and not just because he has made significant contributions to the country, but because he has surrendered and major meritorious services, this is our country criminal law article68Article2The provisions of paragraph shall be a legal circumstances lenient punishment, the court must be considered in the measurement of penalty.

In addition, in this case there is a concern, Zhu Shijian's lawyer Ma submitted to the NPC Standing Committee appeal. Indeed, in our view, the Zhu Shijian can not be amnesty, but forgive this long neglected problems deserving attention. Our country1997Years penal code section65Tiao Hedi66The provisions of article although have forgiveness for words, but the criminal code does not stipulate the pardon system. According to the provisions of the current constitution of our country and the practice of amnesty since the founding of new China, the penal code article65Tiao Hedi66The pardon is only an amnesty. That is only for punishment, no forgiveness. Has the meaning of criminal policy more obvious amnesty, which contains not only to realize individual justice, protection of human rights and the intention, the tolerant, reconciliation concept can promote social stability and harmony. Activation of amnesty system is conducive to promoting the progress of the criminal law. Therefore, in constructs the socialism harmonious society vigorously, earnestly implement the leniency of the basic criminal policy of today, how to activate the pardon system, to fully play its positive role in the criminal law in our country, is worthy of our consideration.

 

    Case three: Xiamen Yuanhua smuggling case

　In the1996Years to1999In three years time, led by Lai Changxing smuggling group and other smugglers, in the Xiamen Customs Smuggling imports of refined oil450Million tons, vegetable oil45More than 10000 tons, cigarette300Million boxes, car3588Vehicles, as well as a large number of Western medicine raw materials, chemical raw materials, textile raw materials, electrical and mechanical goods, value up to RMB530Billion yuan RMB, evades duty300Billion yuan, caused huge losses to the state.

　In the case of more than one year,600Several people involved are examined, there shall be held in300Criminal responsibility of crime molecules, the negative case fled there70People. Former Vice Minister of the Ministry of public security, including Li Jizhou, former deputy party secretary of Xiamen city Liu Feng, former vice mayor of Xiamen Lan Fu and a large number of senior party and government officials have involved.

After the incident, the principals of Lai Changxing fled to Canada, flash is nine years, still not arrest. In order to realize the extradition of the principals of Lai Changxing's return, which severely punished by the law, the Chinese government has been trying to, on the plus side actively and judicial assistance in criminal negotiation, communication, cooperation, and to the Canadian side promised not to Lai Changxing was sentenced to death as soon as possible, so as to be extradited to create conditions.

 

   Comments: Yuanhua smuggling case has gradually fade out people's eyes, but the damage was caused by the case to the society and caused widespread concern at home and abroad, it is unprecedented.

    Xiamen Yuanhua smuggling case is so far and one of the biggest economic crime since the founding of new China together. In this case the amount involved is especially huge, the harm is extremely serious, shocking corruption revealed by the case, triggered by the lesson is very profound. Seriously investigate and deal with the case, fully demonstrates the CPC Central Committee, the State Council resolutely oppose corruption and severely crack down on criminal strong determination and stand firm, effectively safeguarding the reform, development, stability. From the construction of criminal law perspective to view, in many aspects has the Xiamen Yuanhua smuggling case breakthrough model significance and enlightenment, mainly:

　 First of all, should further strengthen the international judicial cooperation in criminal matters. With the trend of global economic integration intensifies and international personnel flows have become increasingly frequent, crimes are also increasingly showing across borders, a global characteristics. Many criminals"One's criminal conspiracy was unmasked"Later, often carry large sums of money to abscond abroad, in order to avoid legal sanctions. Especially in recent years, the corrupt phenomenon is prevalent, especially. According to statistics, since China's reform and opening up20Over the years, about4000Corrupt officials fleeing abroad or other personnel, take about500Billion dollars, this is a conservative figure official.

In such a grim situation, in order to block the criminals"Fly far and high"This low risk, high return flight path, in order to effectively combat and deter multinational (exit) criminals fleeing, between different countries is necessary to strengthen international judicial cooperation. Xiamen Yuanhua smuggling case caused the Chinese government to think about how to further improve and perfect our country the practice of international criminal judicial assistance cooperation mechanism with other nations, especially the perfection of the system of extradition, to adapt to the international environment and the legal system of extradition, to realize China and judicial cooperation on Extradition normal, orderly, expand and strengthen international cooperation in the fight against crime in the process, so as to effectively prevent and punish International (Overseas) criminals flight.

It is because of our country and Canada not signed the extradition treaty specifically, according to Canadian law, Canadian and foreign extradition cooperation must be concluded extradition treaties as a precondition, in add not conclude treaties on extradition case, both difficult to carry out effective cooperation in extradition. Through the normal pathway of the extradition of the principals of Lai Changxing busting home difficult, only by the two sides reach an extradition case cooperation agreement or Lai Changxing will be deported back through illegal immigrants program to.

Secondly, a correct view of the commitment problem. Because"Non extradition of death penalty"Is a recognized by many countries in the world of international practice and international legal principles, so in the Yuanhua smuggling case, will Lai Changxing from Canada for home, the first premise is the Chinese government promised not to Lai Changxing was sentenced to death. If you do not promise not to Lai Changxing was sentenced to death, in accordance with the laws of Canada, it is not possible to deportation back to Lai Changxing. In fact, China's Supreme People's court also made not sentenced to death the principals of the promise of Lai Changxing. So this kind of penalty measurement promise or beyond the legal procedures, no legal basis, whether the violation of justice? The community fierce controversy, attention, a great response, in NPC and CPPCC during the NPC deputies and CPPCC members put forward questions.

To solve this problem, the Supreme People's court spokesman Ni Shouming made answer, I pointed out that our commitment not to sentence Lai Changxing to death, is through international cooperation way to arrest Lai Changxing is necessary, reasonable price shall be investigated for criminal responsibility by Lai Changxing, is the correct choice made after Quan Hengli. This case can not and no international factors cases simple comparison, promise not to Lai Changxing sentenced to death penalty and judicial fairness does not have any relations. In our opinion, promise not to Lai Changxing sentenced to death penalty with not only the judicial fair or not free, but also have a legal basis. China's "criminal law" article63Article2The provisions of paragraph:"Although do not have the crime prescribed in this Law for mitigating circumstances, but according to the special circumstances of the case, with the approval of the Supreme People's court, also may be sentenced to a punishment below the legally prescribed punishment."In addition to our "Extradition Law" article50Article1The paragraph also expressly:"The requested State grants extradition conditions attached, for does not impair the sovereignty of the people's Republic, national interests, public interests, can make a commitment to the requested country by the Ministry of Foreign Affairs on behalf of the government of the people's republic. The prosecution's commitment, decided by the Supreme People's Procuratorate; for the promise of sentencing, decided by the Supreme People's court."

　Thus, China's Supreme People's court has the final say in sentencing and have the right to make the commitment to the extradition request in sentencing, and our country and foreign extradition agreement reached over criminal sentencing is also should consider the court decided the special commutation"Special circumstances", and did not go beyond the legal procedure.

 

    Case four: Cheng Kejie bribery case

Cheng Kejie, Zhuang, former deputy chairman of the Standing Committee of the Ninth National People's Congress, former deputy secretary of the CPC the Guangxi Zhuang Autonomous Region Committee, chairman of the people's Government of the Guangxi Zhuang Autonomous Region.

    1993At the end of the year, Li Ping Cheng Kejie and his mistress (Hongkong residents, dealt with) their divorce after marriage. Therefore, the then Secretary Cheng Kejie Zhou Ningbang suggested to Li Ping, the use of favorable conditions in the Cheng Kejie, two people to make money and then get married, for the future lay the material foundation for the common life. Li Ping will Zhou Ningbang's advice to Cheng Kejie, Cheng Kejie agreed, and Li Ping agreed, by the Li Ping trustees, by Cheng Kejie using the chairman, deputy secretary of CPC the Guangxi Zhuang Autonomous Region Committee of the Guangxi Zhuang Autonomous Region people's government positions, for the benefit of trustees, two people receive money, stored outside, for after use.

　 Since then, from1994The beginning of the year to1997At the end of the year, Cheng Kejie and Li Ping collusion, accept Guangxi Yinxing Industrial Development Corporation and other units and individuals in the request, the convenience of duty Cheng Kejie, alone or with Li Ping together for the request unit or individual interests, taking bribes from a total of RMB4109Million yuan. After the incident, the property has been recovered.

Cheng Kejie2000Years7Month31By the Beijing first intermediate people's court sentenced to death, deprived of political rights for life, confiscation of all personal property. Cheng Kejie refuses to accept, appeal.8Month22Day, the Beijing Municipal Higher People's court made a final criminal ruling, dismissed Cheng Kejie's appeal, upheld the conviction, and shall be submitted to the approval of the Supreme People's court.9Month7Day, the Supreme People's court approved the death sentence for Cheng Kejie.9Month14Day Cheng was executed.

 

Comments: Cheng Kejie is the new China since was established for the crime of bribery and was executed the highest rank of leading cadres. Cheng case and shock to Zhongnanhai, caused great concern at home and abroad. Punish Cheng Kejie, fully reflects the CPC Central Party severely punish corruption, strong determination and attitude. Cheng Kejie Fufa, is a major victory for justice and the rule of law, which will further strengthen the confidence of Party members and cadres and the masses of fighting corruption.

Cheng Kejie bribery trial in accordance with the law, but also embodies the principle of equality of the requirements of the rule of law and criminal law. The rule of law, is the basic policy that the Party led the people of all ethnic groups in the governance of the country, is also the most fundamental anti-corruption struggle, the most powerful protection. On the Cheng Kejie trial, adhere to the criminal facts, the basic principle in the criminal law as the criterion, not because it is the senior cadres and to give the wrongdoer a way out, extrajudicial mercy. To punish Cheng Kejie, in a sense, is also a very deep criminal rule of law education, it is clear to the people: in the socialist Chinese, there is no special characters beyond the party discipline and state law on, absolutely not because of corruption can be exempted of leading cadres. No matter what, no matter how high their position, how much power, as long as they violate the criminal law, will be duly punished.

Cheng Kejie bribery case for the positive significance of criminal law in our country, but also on the criminal judicial progress in the role. With the development of China's anti-corruption struggle in recent years, new situation, new problems are constantly emerging, corruption crime also presents the characteristics and development trends of different. Among them,"A lover"Joint crime of bribery has become a new trend of bribery crime, especially in a large proportion of senior cadres of corruption cases.

Such as the Cheng Kejie corrupt case, is a typical"A lover"Joint crime of bribery case. Many bribery Cheng Kejie accepting that with Mistress Li Ping conspiracy or the common implementation. In the"A lover"Joint crime of bribery, as national staff and their relationships by ambiguity, economic relevance, concealment, so that the bribery, crime, investigation discovery, greater than the difficulty of traditional bribery crime, the task more difficult. The existence of Cheng Kejie bribery case"A lover"Joint crime of bribery phenomenon has brought new challenges to China's criminal judicial work.

Our country's highest judicial organ to Cheng Kejie bribery case as an opportunity, acutely aware of this problem, take active measures, and based on the summary of practical experience in2007Years7Month18By the"Two high"Jointly issued the "about the problems of bribery in criminal cases the law applicable opinions" of this judicial interpretation, the original law"The interested parties"Modified extended to"Special relationship", and interpreted as"There are close relatives, the mistress and the national staff (husband) and other common interests of the people". This was the first time in law and regulations in our country"Mistress (husband)"Words.

The introduction of views, to fight in the judicial practice"A lover"This new corruption bribery crime, has the very vital significance.

 

     Case five: Gong Jianping football"Black whistle"Case

Gong Jianping, the former Department of Capital Institute of Physical Education teachers, international football referee.2000Years to2001By China Football Association designated as national footballA, aBThe referee.

   Gong Jianping served as president of the national footballA, aBDuring the period of the referee, taking advantage of his position, has9Times illegal participant of Qingdao Yizhong manatee, Shanghai Shenhua, Zhejiang Greentown, such as Dalian Shide Football Club give property, totaling RMB38Million yuan.2002Years4Month17Day, the Beijing Xuanwu District people's Procuratorate on suspicion of bribery crime enterprise personnel formally approved the arrest of Gong Jianping. The same year12Month24Day, the prosecution to the Beijing Xuanwu District people's court to the crime of bribery personnel of enterprises.

2003Years1Month29Day, Beijing Xuanwu District people's court verdict, Gong Jianping of taking bribes and sentenced to prison10Years. Gong Jianping refuses to accept, appeal. The same year3Month28Day, the Beijing first intermediate court made a final ruling on Gong Jianping bribery case, rejected his appeal, upheld the first instance judgment.

Comments: the case of Gong Jianping in the football circles and the law circles much raise a Babel of criticism of, caused the parties concerned. The arrest of Gong Jianping, is believed to be in accordance with the law against"Black whistle"The"The first shot"The case, Gong Jianping is also considered the first case of judicial corruption.

Whether the Gong Jianping case justice can be reasonably in football"Black whistle"Gong Jianping as the subject of crime, and the particularity of identity and other issues, in the community caused widespread controversy. The procuratorial organs in company, corporate officers taking bribes to Gong Jianping to sue, and the court of second instance is found in its composition, national staff bribery, Different people, different views. in criminal academic circles and there are a lot of people think that Gong Jianping's behavior is innocent, which is right and which is wrong, in the society, arguing hotly.

It should be said, the Gong Jianping case was really touched some blind area of criminal law in China, because the basis of1997Years of penal code, Gong Jianping as a national footballA, aBThe referee, it does not belong to the national staff, nor the company, the staff of the enterprise, he is only by virtue of professional sports knowledge in sports activities of the personnel, the behavior of receiving property, although the social harmfulness to a considerable extent, but at the time of the criminal law does not regulate such behavior, so Gong Jianping is not have the main body of crime of bribery or bribery personnel identity. In accordance with the principle of legality, he accepts the football club property act, is not as to deal with crime. For one, the court of second instance finally taking bribes for Gong Jianping's conviction and sentence, the characterization is accurate, it needs to be examined in history.

Although Gong Jianping is a very controversial case, however, it brings vibration is our legal circle and law circle giant, to the criminal law of our country progress especially produced an important influence on the development of criminal legislation. It enables us to focus on a new legal problems emerged in real life, improve our criminal laws and regulations as soon as possible, so that future recurrence of such behavior, can make laws. The development of legislation of Chinese criminal law facts have proved this point.

　　2006Years6Month29Through the "PRC Criminal Law Amendment (six)" to make a positive and constructive response. The amendment of article7To our country1997Years penal code section163Article about"Bribery crime of company, enterprise personnel"The regulations were revised and improved, the scope of subject of crime of the crime to expand the"Other units of staff". Some crimes has become"The non national staff bribery crime". In this sense, says the Gong Jianping case is a significant milestone in China's criminal law, is to a proper extent.

 

    Case six: Sun Zhigang received the death

　　2003Years3Month17Day,27Years of university graduates Sun Zhigang for not carrying out any documents, the Tianhe District Public Security Bureau Huang Cun Street police station in Guangzhou city on the streets of Guangzhou to run an inventory tasks as"Staff"Error accepting and sent to the Civil Affairs Bureau of Guangzhou city housing and repatriation transfer station.

　　3Month18Evening, Sun Zhigang claims to have heart disease was sent to the asylum staff health bureau of Guangzhou city rescue station diagnosis.3Month19Evening, because Sun Zhigang to rescue station claimed contained rescue personnel relatives shouting for help, the treatment station worker dissatisfaction with Qiao Yanqin. Qiao Yanqin and Lv Erpeng, Qiao Zhijun, rescue station workers to discuss Hu Jinyan Sun Zhigang from201Room to206Room, Qiao Yanqin, Lv Erpeng respectively to the206Room window from the interior of Li Haiying8By the staff treated the beating of Sun Zhigang.3Month20On the morning of1PM, the defendant Li Haiying, Zhou Liwei, Zhang Mingjun, Zhong Liao, Li Longsheng, Wei Yanliang, He Jiahong, Li Wen Xing etc.8Who has twice to Sun Zhigang take turns beating.20The morning sun was found in, after rescue invalid death. After the forensic identification, Sun Zhigang due back suffered blunt force repeatedly hit, resulting in a large area soft tissue injury caused by traumatic shock and death.

　　2003Years6Month9Day, Guangzhou City Intermediate People's court verdict, Qiao Yanqin prime culprit was sentenced to death; second Li Haiying prime culprit was sentenced to death with a two-year reprieve; Zhong Liao, was sentenced to life imprisonment; the rest9The criminals were sentenced to3Years to15Years in prison. Qiao Yanqin refuses to accept, appeal. The second instance court dismissed the appeal, upheld the.

 

    Comment."Sun Zhigang incident"Disclosed by the media reports, caused great repercussions and sensation in the society, the Internet protests also As one falls.5Month14The three day, a doctor of law to submit a proposal to the Standing Committee of the National People's Congress on behalf of Chinese citizens, suggestions on the State Council1982Years of the promulgation of the "city vagrants and beggars detention and repatriation measures" review.5Month23Day, Beijing five legal scholars in the name of Chinese citizens, submit the Sun Zhigang case and the deportation system implementation status start special investigation program proposal to the Standing Committee of the National People's congress.

　6Month18Day, Premier Wen Jiabao presided over the State Council executive meeting, considered and approved in principle the "city living without the street begging rescue personnel management approach (Draft)", will be abolished at the same time "city vagrants and beggars detention and repatriation measures". So far, implemented in our country20Years of detention and repatriation system has become history.

Sun Zhigang has exposed a lot of problems, such as the most basic human rights of citizens are not effectively protected, the legal system has drawbacks, law enforcement officials abuse their power, human nature and conscience. But a criminal case to the end of a system directly, in this new China criminal law history also does not see more.

In addition to the community and public opinion in the network based on the Sun Zhigang case opportunity plays an important role in the rule of law, is the great significance of this criminal cases: first, it allows people to regain the authority of the constitution.Rousseau once said: all the important laws are not carved in marble or coated, but bearing in mind the hearts of the citizens.Supreme authority of constitution should always remember to each citizen's mind, Sun Zhigang awakened the citizen and legal experts and scholars of maintaining the authority of the constitution consciousness, and the abolition of the judicial detention and repatriation system. Second, it awakened the people's power supervision consciousness. All power is restricted, unchecked power tends to corrupt sooner or later. The Sun Zhigang case is reflected in housing lack power and repatriation system of supervision. When people are in the name of state implementation of infringement, if the offender is the referee, is the offender will be danger in the loss of all means of defence.

Sun Zhigang has brought renewed attention to restrict the power of the problem. In this regard, its influence on the development of rule of law in China will be far-reaching.

 

    Case seven: Zheng Xiaoyu briberyBe forgetful of one's duties

Zheng Xiaoyu, former director of the State Food and drug administration. Since the1997Years6January2006Years12Month, Zheng Xiaoyu used as the State Pharmaceutical Administration, the State Drug Administration, the State Food and drug supervision and Management Bureau of the office facilities, to accept the request, as the eight pharmaceutical enterprises interests in the approval of drugs, medical devices, has repeatedly directly or through his wife, son of illegally accepting the units responsible for the people to money and a total of RMB649Million yuan.

　　2001Years to2003Years, Zheng Xiaoyu served as the State Drug Administration, director of the State Food and drug administration period, in the nationwide unified issue a pharmaceutical production number of special work, seriously irresponsible, without careful deployment, and lower the standard approval approved renewal number. The spot checks found to be forgetful of one's duties, Zheng Xiaoyu, causing many should not change number or shall withdraw the approval number of the number of drugs, including6Drug was fake.

　　2007Years5Month29Day, the Beijing first intermediate people's court to the crime of accepting bribes, be forgetful of one's duties crimes, Zheng Xiaoyu was sentenced to death, deprived of political rights for life, confiscation of personal property. Zheng Xiaoyu refuses to accept, appeal. Beijing Higher People's court held a public hearing in the same year6Month22Make appellate ruling, dismissed the appeal, upheld the. With the approval of the Supreme People's court, Zheng Xiaoyu2007Years7Month10In Beijing, was executed.

 

Comments: Zheng Xiaoyu Fufa, fully embody the people's will and desire, powerfully demonstrates the legal spirit of fairness and justice. Zheng Xiaoyu is the senior officials in recent years our country fourth above vice ministerial level because of corruption crime and executed.

Although he is not the first above vice ministerial executed bribe corrupt officials, also not the highest level of corrupt officials were executed, and the amount of bribery only649Million yuan, and the court had to bribe amount more than some of his corrupt officials such as Heilongjiang province CPPCC Chairman Han Guizhi, the former governor of Yunnan province Li Jiating, former executive vice governor of Hebei province Cong Fukui was sentenced to death with reprieve, people will naturally have a doubt: the Zheng Xiaoyu sentenced to death penalty executed immediately and whether it has legal basis, whether they are appropriate.?

Especially in the current death penalty review right to the Supreme People's court, China's strict limits, reduce death penalty under the new situation, Zheng Xiaoyu not only has a positive return performance, but also to some crime lenient sentencing discretion, why it was not at the dead of bad luck? This is also an important cause of social public opinion Zheng hitherto unknown attention.

     In accordance with rule of law point of view, although Zheng Xiaoyu confessed part of the facts, and positive gains, but the case, the circumstances of the crime and the harm is too serious, important position of director at the State Food and Drug Supervision Bureau this relationship beneficial to the people's livelihood he, for the greed of accepting huge bribes, honesty is a serious infringement the official, but the important interests of the state and the people alone, to seek illegal interests for the relevant enterprises, leading to the order of the State Drug Supervision out of control, seriously endanger people's health, serious damage to the organs of the State Food and Drug Administration's credibility, very bad social influence, social harm and criminal circumstances are particularly serious. Zheng Xiaoyu after the crime in the prosecution process in these discretionary lenient circumstances and factors, from the whole still cannot decrease its crime extremely serious harm, therefore, the court sentenced Zheng Xiaoyu to the immediate execution of death penalty is the penalty according to the crime, is also in line with China's sentencing principles and rules.

Zheng Xiaoyu bribery case, be forgetful of one's duties for the criminal law significance, also relates to the application of the death penalty in China of corruption crime. This is also a reference to also unavoidable problem. Admittedly, limit, reducing the death penalty and gradually abolish the death penalty is the requirement of building a harmonious socialist society to improve the criminal law of our country, is also in line with the trend of international social rational anti system crime. But in China, the death penalty legislation, judicial reform measures need to be carried out step by step, requires a combination of social development and to consider the situation of public opinion.

Therefore, we advocate that China should be gradually abolished the death penalty for non violent crime, the legislation on the reform agenda, at the same time, we also advocate the death penalty for the crime of corruption, bribery crime these serious corruption crime is not immediately abolished, but should gradually be strictly limited, when conditions are ripe to be repealed. In the criminal law of our country at present have the death penalty on corruption crime configuration, for the crime amount is particularly huge criminal major corruption crime and the circumstances are particularly serious, the sentenced to death including executed immediately, this is not to limit the death penalty, reduce the negative, but rather to apply strict standard of the death penalty. This is also China's restrictions, reducing the death penalty and abolish steps and normal phenomenon, lawful and reasonable process of death penalty gradually.

 

    Case eight: Xu Ting theft

　　2006Years4Month21Day21PM, wage earners Xu Ting to the city of Guangzhou Whampoa　 Avenue, Xiping, Tianhe District163ATM Guangzhou City Commercial Bank (No.ATMWithdraw money. Xu Ting to oneself do not have overdraft function, balance176.97Yuan bank card for cash100Element.

　　21When the56Divided, Xu Ting in the ATM withdrawals accidentally input1000Element instruction, teller then cash out1000Element. Xu Ting classics inquiry, found that there are still the bank card170Yu Yuan, he realized that the ATM is abnormal, can exceed the account balance of cash and not truthfully debit. Xu Ting and so on21When the57To22When the19Divided,23When the13To19Points, the zero26To1When the06In three time, bank card in the ATM withdrawal instruction170Second, a total of withdrawals174000Element. In the same month24Afternoon, Xu Ting carries paragraph abscond.2007Years5Month22Day, Ting Xu was arrested in Baoji city of Shaanxi province. The money has been squandered.

The same year11Month20Day, the Guangzhou City Intermediate People's court judgment of first instance, identification of Xu Ting theft of financial institutions, especially huge amount, so the theft of financial institutions, criminal sentenced to life imprisonment, deprived of political rights for life, confiscation of all personal property. Xu Ting appeal, appeal. Guangdong Provincial Higher People's court2008Years1Month9In the original judgment that Xu Ting theft facts unclear, insufficient evidence on the grounds, rescind the original judgment, the remand.

After the trial, the Guangzhou intermediate people's court in2008Years3Month31Make a retrial decision, still by stealing financial agency for special crime penalty system to reduce the sentence Xu Ting is in prison5Years, and shall also be fined2Million yuan. Xu Ting is still not satisfied, appeal again. Guangdong Provincial Higher People's court2008Years5Month22Make final judgement, the court rejected the appeal, upheld the. So far, the Xu Ting case under the eye can finally be basically settled.

 

　Comments: the case of Xu Ting in the media, a stone arouses thousand layer wave, caused widespread concern in society, from theory to practice, from officials and scholars to the public, are around the Xu Ting is a crime, as a crime of theft or any other crime, whether the theft of financial institutions and sentencing and other issues a heated debate. The case was also named2007Year ten big influence Chinese action of.

It should be said, Xu Ting case an ordinary criminal cases rose to become public event caused widespread social concern and public space that hot, its significance is beyond the case itself, it is in the progress of democracy and rule of law, a vivid example of our contemporary interpretation of criminal law depth. Xu Ting case though after a trial, a judge remand and retrial appeal has been basically settled (as particularly mitigated punishment, even after the second trial final judgment shall be submitted to the Supreme People's court approval to take effect), but the complex field and its display and its significance for the criminal law, but thought-provoking, set people thinking, it brings our enlightenment is multifaceted. In the case of Xu Ting, collision, power and public reason and law of interaction, age and heart entanglements to show live in this case. The form justice and the substantive justice, balance of legal effect and social effect of the organic unity of the balance between crime and punishment, the rational construction of many deep level problems in this case vividly reflected.

Can say, based on the case of Xu Ting this case the theoretical discussion and feelings surging, in a sense, is a development, training beneficial civilization of rule of law and civil society and to develop. It is in this sense, the Xu Ting case became a landmark case of criminal law field course of contemporary democracy and the rule of law in china.

 

    [Conclusion]

The development of the rule of law is a gradual process. Along with the development of the criminal legislation of our country stage and context, with the typical case as the main angle of view, we can see, China's reform and opening up30The development of criminal law years, not just a simple legislative process, but a continuous subject to criminal judicial practice to promote and social development impact of the process of gradual improvement. It is in the judicial practice, our concept of law can constantly change and progress, then the more far-reaching significance to promote the rule of law in our country especially the development and perfection of the criminal law.

We firmly believe that, the criminal legislation and criminal judicial practice with the social progress and the changes of the times as the basis of the benign interactive relationship, which we should pay attention to the maintenance, guided by the criminal law, so that the good early in our country, society and nation. This is the route one must take China's construction of socialist modern country under the rule of law.