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Http://blog.sina.com.cn/s/blog_4c572925010088aw.html # -
2008-01-27 -
One, the Xu Ting case Early in 1, the case In April 21, 2006, Xu Ting holds their balance of 170 yuan of bank card, 171 money 175000 yuan in Guangzhou commercial bank ATM. The detailed process is as follows: Xu Ting wanted to withdraw 100 yuan, but I mistakenly pressed for cash 1000 yuan. Who knows, the ATM machine was indeed as expected output 1000 yuan. Xu Ting was surprised to find, withholding his bank card, but only one element. So many continue to operate ATM machine, cash one thousand yuan again, ATM and output one thousand yuan, deduction is only one element. Xu Ting continue, until removed sixty thousand yuan. All pocket Xu was filled with RMB, he came back to the dormitory. His roommates was very surprised. Xu in the accompaniment, once again came to the ATM machine withdrawals, get one hundred and ten thousand yuan. A total of two times to withdraw 175000 yuan. So the ten thousand yuan to accompany his workmate. The reality made Xu Ting uneasy, at noon on April 24, 2006, Xu Ting fled to Guangzhou to return home, began nearly a year on the run, during which he was active and the Bank Union Bank says, in any case will be investigated for criminal responsibility. In 2007 May, Ting Xu was arrested in Shaanxi. In November 6, 2007, the Guangzhou City Intermediate People's court started trial cases. At the beginning of 2007 12, Xu Ting trial was sentenced to life imprisonment. At the beginning of 2008 1, the case into the procedure of second instance, January 16, 2008, Guangdong Province high court sentenced Xu Ting case back to the trial. The bank lost 174985 yuan by the ATM machine manufacturers full compensation. At present, in 2 cases Part of the mainstream legal professionals and ordinary people, that Xu Ting innocent, may be wrong, their legal defense, network support form for the Xu Ting pleaded not guilty. Mainstream law circles and a few ordinary people, that Xu Ting guilty, but, what kind of crime is not clear, is to search for. They think: the case on the crime and non crime, does not have the value to discuss. No matter how delusional minority control public opinion, to the trial of pressure, adhere to the legal workers of fairness and justice, are of no significance. Xu Ting guilty, belongs to the occupation of public or private property crime in a, this is definitely, consensus. We will explore the present, but he made the crime of embezzlement of public or private property is what, in which case, how to sentencing. Two, "from quantitative change to qualitative change" does not apply to non discrimination and crime At present, regardless of the mainstream law circles understanding, or the law to reflect, that our country in the crime and crime identification application from quantitative change to qualitative change theory. Some netizens posting said: the defendant's behavior from quantitative change to qualitative change, from the moral issues of the development of the criminal. This is our country for many years in the practical application of a fundamental error. Why go to the current social situation, corrupt disaster caused by flooding water, and this is closely related to fundamental error. Some experts, scholars holding tightly to this error does not let go, this theory is still deteriorating social organism. "A theory from quantitative change to qualitative change" is academic, but any theory has its own application domain, not placed everywhere. In distinguish wrong and crime, absolutely not available "from the quantitative change to qualitative change" theory, this place became arch-criminal evil. Some experts, scholars of our (dominant) concept is, mistakes can be forgiven, when the error reaches a certain degree it has undergone a qualitative change, big mistake becomes a sin. Such as the hottest topic "greed", they dare to set the starting point of punishment, such as: official corruption in law 5000 yuan punishment, crime of corruption is not small, but wrong, usually say to say more is discipline problems, corruption to a certain value, from quantitative change to qualitative change, wrong becomes a sin. In fact, the penalty value is how much has no matter, as long as the intermediate limit value, the idea has produced a big mistake, the actual size value may not be affected by the method of definite value in the limit, where there are 20000, 50000, 80000, or even higher price of greedy and non greedy the definition of value. There is usually a principle, 95% is a good officer, is about 5% of corrupt officials, for example, 95% officials for below 200000, then, the starting point of punishment can only be set to 200000 yuan, also just 199000 yuan is not corrupt, is a good officer, ultra 200000 yuan is corrupt, so, naturally became the most is the corrupt reality, people speak the official is corrupt should be justified. Have the same idea to civilians, make the mistake is not a sin, wrong mostly a degree or make mistakes at times, from quantitative change to qualitative change, wrong becomes a sin. The idea is correct: The crime with the non crime, is to distinguish between the nature of the act, but not in the monetary value or the number of times to decide. If the corruption crime, defines the extreme limit of crime, corruption is a crime of corruption, corrupt officials a penny is a sin, no one dare to doubt this, values and crimes are closely related. On the contrary, the value is again big, even hundreds of millions, billions, as long as there are no crime elements, is wrong and innocence. Regarding the case of Xu Ting, some scholars, judges think: if Xu in only once, so innocent, then click is sin. That is the crime concept is, maybe the improper profit motive, it is sin. In fact, the so-called received improper benefits motivation how to define? Discussion when boundaries, now the motivation is to talk about the problem in the legal level, in this sense, the judge believes that "Xu Ting the improper profit motive" is wrong, from the rules of speaking, Xu Ting into currency accounts, is to transfer ownership of the currency to Xu Ting, Xu Ting the right to use all the money for his own account, to ownership is transferred me to the wrong is another matter, if wrong, Xu Ting can take ownership of the currency is returned to the original owner, however, did not return before the title, Xu Tingqu many times have not identified Xu was not when the profit motive, Xu Ting not the motive for the crime. The three elements of crime of "behavior" to neglect, crime must have violated spatial factors, Xu Ting in absolute space action of their own, the crime must be very behavior, Xu Ting fully in accordance with the provisions of operation method, Xu Ting no crime, behavior. Xu Ting no crime, no crime, behavior, and certainly not without crime, the consequences, innocent? Error source is "from quantitative change to qualitative change", he once, two times, three times...... One hundred and seventy-one, natural becomes a towering crimes -- life imprisonment, deprived of political rights for life. Analysis of this event in the normal idea, the first time he found a balance, no matter how many, did not reflect the situation, and put the money with oneself, has formed a wrong, and not a crime. Second times, third times, N times, the same behavior, is also wrong, and non crime. Wrong is wrong, wrong, wrong and not as much on into crime. Three, on the understanding of the financial institutions and the stolen What is state property? State property is a general term for personal property and the national public property, personal property is the main body, public property is a subsidiary body, the national public property contains a part of every citizen's property, no private property may not be the state property. Affiliated labor attribute of public property is mainly reflected the currency. National public property of service for all citizens, the protection of personal property. The state function is to protect private property rather than eliminating private property, public instead of private ownership is a very wrong theory, is against human nature theory. The state of the financial institution is the combination of all personal property, personal property is part of national financial institutions, not personal property has no national financial institutions, each customer rights is in his account in accordance with the provisions of the operation, the same is also included for each kind of reward right. In their own space in accordance with the provisions of the operation access currency not possible violations, it is not possible to sinful existence. About the theft of the financial institutions crime into three paragraphs, since stealing, stealing and stealing neighbor. Since stealing is a member of the system, adopt very means, get the currency in their control of space, but no deduction records or have less deduction records. O steal is a member of the system, adopt very means, to obtain money in other non their control of space. Outer thief is non members in this system, adopt very means, to obtain money. Xu Ting is apparently does not belong to adjacent to steal and steal. Possible only since stealing, however, Xu Ting no extraordinary measures, according to the normal mode of operation for withdrawals, so, also may not be since stealing. A little less record nor Xu Ting was forced behavior, initiative and fails to notify the householder, Xu Ting without responsibility. The most appropriate bank behavior explanation is a hidden bonus, not necessary to let outsiders know, is in the life of "color". Four, judges and lawyers Judges, lawyers for the students, just graduated, some of the judges, the lawyers have to do. Because books, the teacher is wrong, so the fundamental error exists in common, they will certainly create misjudged case. For the eight lawyers Xu Ting defense, a denial of the traditional, also insist on the original idea. They also stultify oneself, one to plead innocent to Xu Ting, Ting Xu added that innocence; while "ATM" is an accomplice, advocate the Xu Ting guilty. The work of their innocence seems to debate a argument only, did not have the confidence to Xu Ting was acquitted, their main aim at how to Xu Ting commutation, for example, to amend the relevant laws, suggests that Xu Ting sentenced results. Extraction Rules Amendment is normal, but can not be put together with the case. The plaintiff certainly hold Xu guilty, the judge is neutral, but they adhere to the traditional concept that Xu Ting, guilty, although the law does not expressly provided for Xu Ting behavior guilty, if the lawyer is slightly down, will be sentenced guilty of Xu Ting, there will be the judges and lawyers common manufacturing wrong facts. Experts, scholars, judges, lawyers, most of the sentence, is still around, in fact, change idea, the fact is that Xu Ting's innocence, does not exist the problem. Five, legal philosophy The concept of event processing is normal: Besides the explicit case recognized, first between legal persons are independent in accordance with the law, no fruit, the civil division, civil division is unable to handle, and then to the criminal court in criminal process. The judge neutral, in the final closing before, has always been to maintain the original state as the principle, neither can be considered the plaintiff guilty, nor that the defendant is guilty, if First impressions are strongest, that the plaintiff accused of crimes in the frame or the defendant has, will increase the error probability. Xu Ting case has clearly reflected, the judge has the first defendant guilty suspicion. The "civil" as "criminal" is the key to the event location. They are determined to put Ting Xu found sinners, but, how they set is not set the criminal facts, had a tremendous effort, or not set, not on the hard decision. This is the emergence of the so-called research value of the case, the case, difficult. Where is the difficulty? Where is the difficulty? The difficulty lies in their determination to Xu Ting convicted sinners, but how to implement is to violate the law, justice, to make every attempt to come up with a crime, must not violate the law, justice, it is very difficult really. This is used for the past thousands of years old, sad consciousness as early as the end of. The essence and the responsibility, the six events In fact, the Xu Ting case is in the life of the common thing, banks give money the Xu Ting, Ting Xu received. Both sides make clear is how things, is the money? The money or not? If the negotiation is good, not necessarily by the court. In case no settlement is reached through a civil court. The facts are clear, accurate and precise figures, accounts, the usual dispute. Is such a simple chores, even they had become a national and even the world. The other is, and Xu guilt free, I think it is a winning event, who have not yet out of not winning reason. This event is not a judge or other people's fault, is the society's fault. Don't be a whole consciousness, judges, lawyers in the theory and practice have been learned, idea is wrong, punish sb counterintuitive, but the idea must be changed and improved. Progress is to correct the error, is everyone's progress, the Republic is progress, is the nation's progress.