12, complex * * * accomplices, referred to as complex * * * offenders, refer to various * * * accomplices who have a division of labor (if instigated, they will be implemented).
Simple * * * accomplice refers to the behavior of all * * accomplices participating in the implementation of a crime constituent elements. In other words, every criminal is a criminal.
Necessary accomplice, referred to as necessary accomplice for short, refers to the crime that only two or more accomplices can be regarded as the constitutive elements of the crime as stipulated in the specific provisions of the Criminal Law. Like organizing a prison break.
A relatively fixed criminal organization in which three or more persons jointly commit crimes.
, is a criminal group. Last time, I chose the wrong criminal group. I chose more than two people. Please pay attention. But, I think, in fact, more than two people can complete all the elements of a criminal group)
You need to pay attention, indirect principal offender.
13, also known as serial offender, refers to a crime whose behavior is in a continuous state from beginning to end for some reason.
You need to pay attention to several kinds of "crimes", such as serial crime, serial crime, creeping crime, absorption crime and implicated crime.
14, excessive defense is defined as exceeding the necessary limit. But in serious violent crimes, intentional homicide, robbery, rape and so on. Not overly defensive. You need to pay attention to proper behavior in criminal law.
15, the principal punishment plus supplementary punishment.
16, the term of fixed-term imprisonment is counted from the date of judgment, and one day of detention is equivalent to one day of imprisonment.
17, the coerced accomplice shall be given a lighter, mitigated or exempted punishment according to law.
18, absorption principle in criminal law, felony absorption misdemeanor.
19, the law stipulates that there are two probation periods: 1. The probation period of criminal detention probation: the longest is more than one year and the shortest is more than two months; 2. The probation period of probation for a person sentenced to fixed-term imprisonment of less than three years: the longest is not less than five years from the original sentence, and the shortest is not less than one year. The probation period of probation shall be counted from the date when the judgment is determined.
20, 1. If the statutory maximum penalty is less than five years in prison, five years later;
2. The statutory maximum penalty is fixed-term imprisonment of more than 5 years 10 year;
3. The statutory maximum penalty is 10 years of dissatisfaction 15 years of imprisonment;
4. The maximum legal penalty is life imprisonment, and the death penalty is 20 years. 20 years later, if it is deemed necessary to prosecute, it must be reported to the Supreme People's Procuratorate for approval.
It should be noted that Article 88 of the Criminal Law stipulates that if a people's procuratorate, a public security organ or a state security organ evades investigation or trial after accepting a case by a people's court, it is not subject to the limitation period of prosecution. If the victim files a complaint within the limitation period, the people's court, the people's procuratorate and the public security organ should file a case but not file it, it is not subject to the limitation period of prosecution.
2 1, simple crime, means that the provisions simply stipulate crimes or simply describe the basic characteristics of specific crimes. For example, Article 234 of the Criminal Law stipulates: "Whoever intentionally harms another person's body shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever commits the crime mentioned in the preceding paragraph and causes serious injuries shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 6 years; Whoever causes death or serious disability by particularly cruel means shall be sentenced to fixed-term imprisonment of not less than 10, life imprisonment or death. Where there are other provisions in this Law, such provisions shall prevail. "
The statement of charges refers to the detailed description of the basic characteristics of specific crimes in the provisions. For example, Article 2 17 of the Criminal Law stipulates that anyone who commits one of the following acts of copyright infringement for the purpose of making profits, with a large amount of illegal income or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined; If the amount of illegal income is huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined: (1) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner; (2) Publishing books with exclusive publishing rights enjoyed by others; (3) Reproduction and distribution of audio and video products made by the producer without the permission of the producer; (4) producing or selling works of art with forged signatures of others. In this paper, the subjective and objective aspects of the crime of copyright infringement are described in detail, which belongs to declarative crime. In China's criminal law, declarative crimes account for the majority, because declarative crimes describe the characteristics of crimes in detail, which is helpful to the identification of crimes and the uniform application of laws.
Citing a crime refers to citing other provisions in the same law to explain and determine the constituent characteristics of a crime. For example, article 124, paragraph 1 of the criminal law stipulates the charges and statutory penalties for the crime of destroying radio, television and public telecommunications facilities, and paragraph 2 stipulates: "Whoever negligently commits the crime mentioned in the preceding paragraph shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; If the circumstances are minor, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. " The second paragraph refers to 1 to explain and determine the crime of negligent destruction of radio, television and public telecommunications facilities. Another example is Article 260th 1 of the Criminal Law, which stipulates the charges and legal punishment of the crime of ill-treatment. The second paragraph stipulates: "Whoever commits the crime mentioned in the preceding paragraph and causes serious injury or death shall be sentenced to fixed-term imprisonment of not less than 2 years but not more than 7 years."
Blank crime means that the provisions do not directly specify the characteristics of a crime, but indicate the provisions of laws and regulations that need to be referred to in determining the crime. For example, Article 325, paragraph 1 of the Criminal Law stipulates: "Whoever, in violation of the laws and regulations on the protection of cultural relics, sells precious cultural relics whose export is prohibited by the collecting country without permission or gives them to foreigners without permission shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and may also be fined." This article only stipulates that the constitutive characteristics of the crime of illegally selling or giving away precious cultural relics to foreigners should be determined with reference to the provisions of cultural relics protection laws and regulations, but does not directly describe the characteristics of the crime, so it belongs to a blank crime. Blank charges must be combined with other relevant laws and regulations to correctly identify the characteristics of this crime.
22. Please look at this case: the defendants Zhang and Liu jointly purchased waste materials. June 65438+1October 65438+1October 2003, when they were walking to the north of a village, Zhang found that the communication cable on a telephone pole along the east road was cut and hung in the air, and suddenly he had the idea of stealing the cable to withdraw money. After deliberation, they decided to steal the cable. The next night 1 1, they drove an agricultural tricycle to the place they had stepped on beforehand. Zhang climbed up the telephone pole and stole the cable with a Gang Qian. By 2: 30 a.m. the next day, the two men had stolen more than 600 meters of cables, causing 76 telephones to lose communication 14 hours. After appraisal, the depreciated value of this batch of cables is 5209 yuan. 10 days later, Zhang and Liu went to another section and stole the communication cable in use for 350 meters, causing the 2 1 phone to interrupt communication for 20 hours. After appraisal, the depreciated value of this batch of cables is 2820 yuan. After stealing the cable twice, the two did not stop there. One night in June 5438 +2004 10, the two men stole another 200 meters of communication cable, and after selling it, they got 2000 yuan, which they shared equally. Upon evaluation, the depreciated cable value is 3 179 yuan.
[Disagree]
During the trial of this case, there are two different opinions on the constitutive elements of the defendant Zhang's behavior.
The first opinion is that Zhang's behavior constitutes a crime of destroying public telecommunications facilities.
The reason is that the crime of destroying public telecommunications facilities refers to the act of deliberately destroying public telecommunications facilities in use and endangering public safety. The object of this crime is public safety in communication, and the object of the crime is public telecommunication facilities in use, including public telecommunication exchange facilities, overhead lines, buried lines and other communication lines, wireless communication networks, mobile communication base stations and so on. Objectively speaking, it is the destruction of public telecommunications facilities, which is enough to endanger public safety. Constitute this crime, as long as the behavior of destroying public telecommunications facilities is objectively carried out, and it is enough to endanger public safety, regardless of whether it causes serious consequences, it can be established. In this case, out of greed, Zhang and Liu cut the public communication cable * * * 950m in use twice, causing 76 telephones to be disconnected 14 hours and 2 1 telephone to be disconnected for 20 hours respectively. Although it has not caused serious harmful consequences, it has caused many units and individuals to be unable to talk normally, endangering public safety.
The second opinion is that the defendant Zhang's behavior constitutes theft.
The reason is that the crime of destroying public telecommunications facilities refers to the act of deliberately destroying public telecommunications facilities in use and endangering public safety. There are various ways of destruction, such as dismantling or destroying important parts of public telecommunication facilities, smashing telecommunication equipment, stealing and cutting off electric (optical) cables, destroying poles and pipes (holes), deliberately violating telecommunication business norms to hinder normal communication, or deleting, modifying or adding data and applications stored, processed or transmitted in the telecommunication network computer information system. In this case, the defendant Zhang subjectively stole public and private property for the purpose of illegal possession. Although it also caused the interruption of the communication circuit, Zhang's purpose of stealing and cutting the communication cable was not to destroy or damage, but to illegally possess and obtain some economic benefits, which did not meet the conditions of "endangering public safety" in the above explanation, so it did not constitute the crime of destroying public telecommunications facilities. Theft refers to the act of secretly stealing large amounts of public and private property or stealing it many times for the purpose of illegal possession. In this case, Zhang and Liu secretly stole public property and cut communication cables many times for the purpose of making profits, and the amount was huge, totaling 1 1208 yuan. According to the criminal law, their behavior should be regarded as theft.
[analysis]
How to correctly hear this case involves the problem of imaginative joinder of offenses.
The so-called imaginative joinder crime, also known as imaginative crime, refers to the criminal form in which the perpetrator commits a harmful act based on one charge and violates more than two charges. Imaginative joinder of offenses, as a common form of crime in judicial practice, has two main features or essential elements: (1) the perpetrator only carried out one act; (2) A behavior has committed several crimes. In the theory of the number of crimes, imaginative joinder of crimes belongs to substantive crimes. Therefore, for the punishment of imaginative joinder of offenses, China's criminal law theorists generally advocate the principle of "heavier punishment", that is, according to the number of crimes committed by the actor, the offender is convicted and punished with a heavier statutory punishment, rather than a combination of several crimes.
Although the concept of imaginative joinder of offenses is not stipulated in the general provisions of China's criminal law, there are provisions on imaginative joinder of offenses in the specific provisions of the criminal law, such as the third paragraph of Article 329 of the Criminal Law: "If the acts mentioned in the preceding two paragraphs constitute other crimes stipulated in the cost law, they shall be convicted and punished according to the provisions of heavier punishment." This article provides for imaginative joinder of offenses.
In judicial practice, the punishment for imaginative joinder of offenses is generally not combined with punishment for several crimes, but according to the principle of "heavier punishment". This case belongs to a typical imaginative joinder of offenses. Item (1) of Article 12 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Theft Cases stipulates: "(1) Whoever steals radio and television facilities or public telecommunication facilities, which is of little value but constitutes a crime of endangering public security, shall be convicted and punished in accordance with the provisions of Article 124 of the Criminal Law; If the theft of radio and television facilities and public telecommunications facilities simultaneously constitutes theft and the crime of destroying radio and television facilities and public telecommunications facilities, a felony punishment shall be chosen. "
In this case, the amount of the defendant Zhang's theft was 1 1208 yuan, which was a huge amount. According to the criminal law, his legal punishment is "fixed-term imprisonment of not less than three years but not more than ten years, and a fine". Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destruction of Public Telecommunication Facilities stipulates: "Whoever intentionally destroys the public telecommunication facilities in use by means of cutting off communication lines, destroying communication equipment or deleting, modifying or increasing data and application programs stored, processed and transmitted in the computer information system of the telecommunication network, in any of the following circumstances, is" endangering public safety "as stipulated in Article 124 of the Criminal Law. According to the provisions of the first paragraph of Article 124 of the Criminal Law, the crime of destroying public telecommunication facilities shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years: (1) Causing communication interruption or serious obstacles such as fire alarm, Fei Jing, medical first aid, traffic accident alarm, emergency rescue and disaster relief, flood control, etc., and delaying emergency rescue, treatment, disaster relief and emergency rescue. (2) Causing communication interruption for users with more than 2,000 people 1 10,000 people or users with more than 1 hour or users with more than 1 10,000 people/hour; (3) Within the scope of a local network, the communication between networks is completely blocked, the gateway office is completely interrupted to a certain office, or a certain service between networks is completely interrupted for no more than two hours, or the directly affected area is no more than 50,000 (users × hours); (4) Causing serious obstacles to inter-network communication, which accumulated for more than two hours but less than twelve hours in one day. " Article 3 stipulates: "Whoever steals public telecommunication facilities in a small amount but constitutes a crime of endangering public security shall be convicted and punished in accordance with the provisions of Article 124 of the Criminal Law; If the theft of public telecommunications facilities constitutes both theft and damage to public telecommunications facilities, it shall be convicted and punished in accordance with the provisions of heavier punishment. " In this case, Zhang's theft did not cause death or serious injury to more than three people or property loss of more than 300,000 yuan, nor did it cause communication interruption of users with more than 2,000 people 1 10,000 people 1 hour or insufficient communication interruption of users with more than 1 10,000 people/hour, but only caused property loss of the communication company. Although Zhang's theft caused the communication line to be interrupted for a time, the consequences have not endangered the public's safety. According to the above provisions, the defendant Zhang's behavior does not constitute the crime of destroying public telecommunications facilities, and should be convicted and punished for theft.
23. Whoever extorts a confession by torture and causes disability or death shall be given a heavier punishment in accordance with the provisions of Article 234 of this Law on intentional injury and Article 232 on intentional homicide. Personally, I think that extorting confessions by torture is mainly caused by the low quality of our police. )
25, the concept and elements of crime against property.
The crime of infringing on property refers to the act of obtaining public or private property for the purpose of illegal possession, or misappropriating the property of the unit and deliberately destroying it.
27. Complex object means that a criminal act infringes on two or more specific social relations at the same time.
28. The crime of misappropriating public funds refers to the behavior of state functionaries who take advantage of their positions to misappropriate public funds for personal use to engage in illegal activities, or misappropriate a large amount of public funds for profit-making activities, or misappropriate a large amount of public funds for more than three months.