I. Criminal law case analysis
Criminal law case analysis, refers to the given case, whether the behavior constitutes a crime, whether the perpetrator should be held criminally liable, as well as how to conviction and sentencing of the analysis made. Criminal law case study to solve the problem is mainly three aspects: first, whether the behavior of the perpetrator constitutes a crime; second, if it constitutes a crime, what constitutes a crime; third is to elaborate the principle of conviction and punishment (if the judicial examination, only need to elaborate the principle of conviction and punishment, do not have to point out the specific applicable penalties).
Two, example
1 endangering national security crimes: [case description] the defendant Sun Mou and Yu Mou initiative for the intelligence agencies of country A to collect China's military, economic secrets. Two people use their work, many times to steal, spy on the unit custody of state secrets, and to others to buy a number of state secrets. On six occasions, they sold 30 pieces of information to the authorities of State A, including 12 confidential documents, 10 top-secret documents and 8 secret documents, for an illegal sum of 600,000 yuan. There were three other top secret documents that were not sold in time because of the crime. [Legal analysis] according to article 111 of the criminal law, the behavior of the two defendants has constituted for the foreign theft, spying, buying, illegal provision of state secrets, intelligence crime.
The crime of stealing, spying, bribing, and illegally providing state secrets and intelligence for foreign countries ~ the person who holds state secrets without the approval of the relevant departments, stealing, spying, bribing, and illegally providing state secrets and intelligence for foreign organizations, institutions, and personnel. The motive of the perpetrator does not affect the establishment of this crime.
State secrets ~ according to legal procedures for a certain period of time is limited to a certain range of people know, important information related to national security and interests. Divided into top secret, classified, secret 3 levels. Top secret ~ the most important state secrets, such as leakage will make the national security and interests of the country suffered particularly serious losses. Confidential ~ important state secrets, the leakage of which will cause national security and interests to suffer serious losses. Secret ~ general state secrets, the leakage of which will cause greater losses to national security and interests. Intelligence ~ All information, circumstances and materials that can be used by agencies and organizations outside the country. Theft ~ theft as a means, usually documents, computers, photographic theft of secrets. Spying ~ obtaining state secrets or intelligence by eavesdropping, such as inquiring from people familiar with the situation, using social means, talks, academic exchanges, and other methods to probe for secrets. Bribing ~ the use of money and other material benefits in exchange for state secrets and information. Illegal provision ~ the person in possession of state secrets without the approval of the relevant departments, unauthorized provision of state secrets and intelligence to foreign countries.
In this case, Sun Mou and Yu Mou used their work to steal and spy on state secrets kept by the organization, bought a number of state secrets from others, and sold 30 of them to the intelligence agencies of country A. The two defendants' behavior constitutes a violation of the law. It can be seen that the behavior of the two defendants constituted the crime of stealing, spying, buying and illegally providing state secrets and intelligence for foreign countries. To summarize, the criminal act of selling state secrets for money generally constitutes the crime of stealing, spying, bribing and illegally providing state secrets and intelligence abroad. However, if the subject of the act is military personnel, the object of sale is military secrets, constitute for the foreign theft, spying, buying, illegal provision of military secrets crime.
2 endangering public **** security crimes: [case description] A B two villages due to irrigation water problem relationship has been bad. Village A villager Zhou sneaked into village B one night and poured a bottle of 500 milliliters of the pesticide "Le Guo" into the drinking water tower of village B. The next day, village B found that the water quality was abnormal. The next day, village B found that the water quality is abnormal did not drink, did not cause serious consequences.
[Legal Analysis]According to Article 114 of the Criminal Law, Zhou's behavior has constituted the crime of poisoning. Article 114 of the criminal law: "set fire, drowning, explosion, poisoning or other dangerous methods to destroy factories, mines, oil fields, ports, rivers, water sources, warehouses, homes, forests, farms, grain farms, pastures, important pipelines, public **** buildings or other public and private property, endangering the safety of the public ****, and has not yet resulted in serious consequences, shall be sentenced to 3-10 fixed-term imprisonment. "
Poisoning ~ Intentionally placing poison. The act of endangering the safety of public **** (the persons and property of an unspecified majority of people). Negligent Poisoning ~ Negligent placement of poison, causing serious injury or death or causing significant damage to public or private property endangering the safety of the public ****. In addition, it is important to note the boundary between the crime of poisoning and the crime of murder. To kill someone by poisoning, and let go of endangering the personal and property safety of an unspecified majority of people, constitutes the crime of poisoning; only to kill someone by poisoning, without endangering other people or things, constitutes the crime of homicide. Poisoning fishing often occurs in daily life, and if poisoning fishing to human or animal drinking water sources endangers the safety of public ****, it shall be defined as the crime of poisoning. If to the collective organization or individual contracted fish ponds poisoning fishing, this fish pond is not for human, animal drinking water, it may constitute the crime of sabotage of production or theft.
3 destroying the socialist economic order crime: [case description] Wang Mou before leaving the country, a friend told him, its hands have a panda skin, has been hiding not dare to sell, such as Wang Mou want, the price is negotiable. Wang Mou with a fluke psychology, buy this panda skin, want to bring abroad to make a fortune. He will panda skin hidden in the suitcase in the sandwich, trying to muddle through customs. After the airport was detected.
[Legal Analysis] Wang Mou knows that pandas are national treasures, panda skins are not allowed to be brought abroad, but tried to muddle through customs, illegal smuggling, his behavior constitutes the crime of smuggling precious animals and their products. The crime of smuggling precious animals and their products ~ article 151 of the criminal law, violation of customs regulations, evading customs supervision, illegally carrying, transporting, mailing the state prohibits the import and export of precious animals and their products into and out of the country. Committing this crime is punishable by more than 5 years of imprisonment and a fine or a single fine. If the circumstances are less serious, the penalty shall be fixed-term imprisonment of not more than five years and a fine; if the circumstances are particularly serious, the penalty shall be life imprisonment or the death penalty and confiscation of property. If a unit commits this crime, the unit shall be sentenced to a fine, and its direct supervisors and other persons directly responsible shall be punished in accordance with the above provisions. In the List of Wild Animals under State Key Protection approved by China in 1988, it specifies the precious and extinction-dangerous wild animals under state key protection *** counting 12 orders, 55 orders, 106 families, 222 genera and 389 species. Such as giant pandas, golden monkeys, white veins, Danding cranes, deer, gibbons, snow leopards, wild camels and so on. Valuable animal products ~ listed in the national key protection of wildlife skin, fur, bone and other manufactured products.
4 Crimes against personal and democratic rights: [case description] Shao owed He a gambling debt of 1000 yuan, and did not pay it for a long time. One day, He waited in front of the elementary school will Shao just after school 7-year-old boy tricked to the car and forced to pull away, sent to a relative's home in neighboring counties. He sent a letter to Shao threatened: Shao must be sent back within three days I000 yuan, otherwise, will sell his son to offset the debt. Shao reported to the public security bureau, the child was rescued. There are two opinions on the characterization of He in this case: (1) constitute the crime of child abduction, (2) constitute the crime of kidnapping for ransom.
[Case study]According to the original criminal law He's behavior constitutes the crime of kidnapping for ransom; according to the current criminal law, He's behavior constitutes the crime of kidnapping. Kidnapping crime ~ to extort property for the purpose of kidnapping others, or kidnapping others as hostage behavior. He's gambling debt is not protected by law; He committed the act of kidnapping to force Shao to repay his gambling debt, and subjectively had the purpose of extorting property, which constitutes the crime of kidnapping. Kidnapping a child for the purpose of selling belongs to the act of child abduction in the current criminal law. Although He threatened to sell the child, but this is only for the purpose of extortion of property to intimidate each other, can not be recognized as the purpose of selling, therefore, He's behavior does not constitute the crime of child abduction and trafficking. This question examines the crime of kidnapping and child abduction and sale. Article 239 of the Criminal Law: "Whoever kidnaps another person for the purpose of extorting property, or kidnaps another person as a hostage, shall be sentenced to not less than 10 years' fixed-term imprisonment or life imprisonment, and shall be punished by a fine or confiscation of property; and whoever causes the death of the kidnapped person or kills the kidnapped person shall be sentenced to the death penalty, and shall be punished by confiscation of property." Article 400 of the Criminal Law: "Whoever abducts or traffics women or children shall be sentenced to 5-10 years' imprisonment and fined; if any of the following circumstances applies, he shall be sentenced to more than 10 years' imprisonment or life imprisonment and fined or confiscated property; if the circumstances are particularly serious, he shall be sentenced to death and confiscated property; (1) the chief member of a group that abducts or traffics women or children; (2) abducting or trafficking more than three women or children; (3) raping a trafficked woman; (4) enticing or forcing a trafficked woman into prostitution or selling a trafficked woman to another person to force her into prostitution; (5) abducting a woman or a child for the purpose of selling by using violence, coercion or anesthesia; (6) stealing infants or young children for the purpose of selling; (7) causing serious injury or death or other serious consequences to a trafficked woman or a child or to a loved one of the trafficked woman or a child; (8) selling a woman or a child outside the country. . Crimes of abduction and trafficking of women and children ~ the act of abducting, kidnapping, buying, selling, transporting, and transiting women and children for the purpose of selling.
5 Crimes against property: [case description] Wang was sentenced by law to 20 years' imprisonment for committing several crimes, and was released on parole after serving 13 years. In the 6th year of the parole probation period, Wang stole a car without being detected. In the fourth year of his parole, Wang was arrested for robbery and gave an account of his theft of the automobile during his parole probationary period. Q: (1) Does Wang's parole need to be revoked? Why? (2) What is the penalty for Wang's theft during his parole period? (3) What should be done about Wang's post-parole robbery? (4) How should Wang's final sentence be determined?
[Legal analysis] (1) Wang needs to have his parole revoked. According to Article 86 of the Criminal Law, "If a criminal who has been released on parole commits a new crime during the parole period, the parole should be revoked." (2) According to Articles 69, 71, and 86 of the Criminal Law, Wang's theft during his parole period should be dealt with as follows:A sentence should be imposed for the new crime, and the sentence not carried out for the previous crime and the sentence imposed for the subsequent crime should be combined. (3) According to the Criminal Law: "For a criminal who has been released on parole, and after the expiration of the parole period, commits a crime punishable by a term of imprisonment or more within five years, he is a recidivist, and shall be punished severely, so Wang shall be punished severely as a recidivist." (4) Wang shall finally be ① sentenced for the theft committed by Wang; the sentence imposed for the theft and the 7-year sentence to be served at the end shall be determined by the discretion of the sentence to be carried out, below the sum total and above the maximum of the several sentences. ② Wang's robbery was punished as a recidivist aggravated; the sentence imposed for robbery and the sentence imposed earlier were combined in the total number of sentences, and the fines were still to be enforced. This question involves the application of parole, the establishment of recidivism and the principle of concurrent punishment.
Article 65 of the Criminal Law: "A criminal who has been sentenced to imprisonment for a term of imprisonment or more and, after the completion of the execution of the sentence or after a pardon, commits again within five years a crime punishable by imprisonment for a term of imprisonment or more is a recidivist, and shall be punished severely, except for a crime of negligence. The period specified in the preceding paragraph shall be calculated from the date of expiration of the parole period in the case of a criminal who has been released on parole." Article 81 of the Criminal Law: "A criminal who has been sentenced to a term of imprisonment and has served more than one-half of the original sentence, or a criminal who has been sentenced to life imprisonment and has actually served more than 10 years, may be released on parole if he has conscientiously complied with the rules of the prison, has undergone education and reform, and has shown genuine signs of repentance, so that he will not jeopardize the society again after his release on parole. If there are special circumstances to be resolved, the Supreme Court may, with its approval, waive the above limitations on the length of the sentence to be served." No parole shall be granted to recidivists and to criminals who have been sentenced to more than 10 years' fixed-term imprisonment or life imprisonment for violent crimes such as murder, bombing, robbery, rape and kidnapping." Article 74 of the Criminal Law: "Probation shall not be applied to repeat offenders." Article 86 of the Criminal Law: "If a criminal who has been released on parole commits a new crime during the parole probation period, his parole shall be revoked and he shall be punished for several crimes in accordance with article 71 of this Law. If, during the parole period, it is discovered that the paroled criminal has committed other crimes for which he has not been convicted before the verdict is pronounced, the parole shall be revoked and the punishment shall be imposed in accordance with article 70 of this Law. If, during the probationary period of parole, the paroled criminal has violated the laws, administrative regulations or the provisions of the State Council or the public security departments relating to the supervision and administration of parole, and has not yet constituted a new crime, the parole shall be revoked in accordance with the legal procedures, and he shall be admitted to prison to carry out the sentence that has been finally carried out." Article 99 of the Criminal Law: "The terms above, below and within referred to in this Law include the present number." Article 71 of the Criminal Law: "After the verdict has been pronounced and before the execution of the penalty has been completed, the convicted criminal who commits another crime shall be sentenced for a new crime, and the penalty that has not been executed for the previous crime and the penalty imposed for the subsequent crime shall be determined to be the one that will be executed in accordance with Article 69 of this Law." Article 69 of the Penal Code: "If a person commits several crimes before being pronounced, the sentence to be carried out shall be determined at the discretion of the person below the sum of the sentences and above the maximum of the sentences among the several sentences, with the exception of death penalty and life imprisonment, but the maximum of control shall not be more than three years, the maximum of custodial labor shall not be more than one year, and the maximum of fixed-term imprisonment shall not be more than 20 years. If an additional sentence is imposed in the case of several offenses, the additional sentence must still be executed."
6 embezzlement, bribery and malpractice: Li is a state-owned foreign trade company manager, in June 1995, in a foreign trade business, Li gullible foreign businessmen, unauthorized changes in the settlement method, so that the company's millions of dollars of goods were cheated, resulting in the national interests of the country suffered a huge loss. in March 1996, Li without a collective study of the company's 2 million yuan loaned to the company in charge of the Wu '98 At the time of the crime, there are still 800,000 yuan has not been repaid. 97 the end of the year, Wu for thanks, gave Li 10,000 yuan as a "holiday fee". 1996, May, Zhang's son was arrested for nuisance, Zhang entrusted Li to help dredge up the relationship, Li proposed to spend 30,000 yuan. Zhang gave Li 40,000 yuan, said 10,000 yuan to Li all, as the hard work, Li then sent 30,000 yuan to his knowledge of the case officer, so that Zhang's son was exonerated. According to the above case, answer the following questions: (1) How should Li be convicted of being cheated in the foreign trade business? Why? (2) Does Li's act of lending 2 million yuan to a transportation company constitute a crime? Why? (3) Li accept Wu's "holiday fee" and Zhang help and accept "hard work" behavior constitutes a crime? Why?
[Case study]: (1) Li was cheated in the foreign trade business. Constitutes the signing, fulfillment of the contract dereliction of duty was cheated crime.
Signing, fulfillment of the contract dereliction of duty was cheated crime ~ "Criminal Law" Article 167 provides: "State-owned companies, enterprises, institutions directly responsible for personnel, in the process of signing, fulfillment of the contract, due to serious irresponsibility by fraud, resulting in the state property suffered major losses, shall be sentenced to less than three years of fixed-term imprisonment or detention, resulting in the state interests suffered particularly significant losses
(2) Li unauthorized lending of large sums of money constitutes the crime of misappropriation of public funds ~ state employees to take advantage of their positions, misappropriation of public funds for their own use, illegal activities; or misappropriation of a larger amount of public funds, profit-making; or misappropriation of a larger amount of public funds, more than three months of unreturned. Li, as the manager of a state-owned company, lent public funds without collective discussion, the amount is very large, for as long as 2 years, in line with the characteristics of misappropriation of public funds. Determination of the crime, should pay attention to: ① misappropriation of public funds for personal use, including not only personal use, but also includes the misappropriator in the name of the individual loaned to others, unit use. Such as the case of Li without collective study, the unauthorized diversion of public funds lent to a friend, should be recognized as misappropriation of public funds for personal use. ② misappropriation of public funds for the objective aspect of the crime of using their positions, the misappropriation of public funds for illegal activities, the misappropriation of public funds in large amounts, for profit activities, the misappropriation of public funds in large amounts, more than three months of behavior. In this case, Li used his position, embezzlement of public funds 2 million yuan loaned to others to carry out business activities, the amount is large, more than 3 months unreturned, constitute the crime of embezzlement of public funds.
(3) Li acceptance of "holiday fees, hard work" constitutes the crime of passive bribery. The crime of passive bribery ~ "Criminal Law" Article 385, state officials to use the convenience of their positions, soliciting or illegally accepting other people's property, for the benefit of other people's behavior. It generally includes two basic forms: ① soliciting property or possessions of others by taking advantage of their position; ② illegally accepting property or possessions of others by taking advantage of their position, in order to seek benefits for others. In addition, good offices bribery constitutes a special component of the bribery offense. Li misappropriated public funds for Wu and accepted bribes, in line with the characteristics of the crime of passive bribery, constituting the crime of passive bribery. Li mou for Zhang's son to seek undue advantage, and accept Zhang's "hard work" in line with the characteristics of mediation, constituting the crime of passive bribery. State officials who, in the course of economic exchanges and in violation of state regulations, accept kickbacks and fees of various kinds, which go to the individual, shall be punished for the crime of passive bribery." Article 388 of the Criminal Law: "A state functionary who takes advantage of the facilities formed by his or her authority or position to seek an undue advantage for a requestor through the acts of other state functionaries in their positions, solicits the requestor's property or accepts the requestor's property, shall be punished for the crime of passive bribery."
Case a year on November 7, the defendant Li Ganwen hired Baoji City, a district of Ren Mou's Qinghai Lake brand car 1, driven by the driver Li Zhongxin, for the town of Zhangjiachuan County, Gansu Province, the owner of the goods Zhao Diancheng to the city of Yuzhou, Henan Province, the transportation of cowhide and other goods. In the tax formalities, Li Ganwen stole the driver's license, with a pre-prepared elimination of the word spirit, the license number 02165 on the license changed to 02374, after the tax and restore the original number, trying to evade tracing after the crime. 5:00 a.m. on November 8, the car traveled to the Baoji City, Jintai District, Zhongshan East Road, Yonghong hostel door, Li Ganwen excuses to eat, with the car escorted by the owner of the goods ZhaoDengCheng tricked out of the car, he also got out of the car, Zhao lured to the door, and then the car was taken out of the car. Also get off, Zhao led to the parking place from about 70 meters in front of the rice stall. Li lied that he went to call the driver to eat with him, left Zhao to return to the car, and said to the driver that the owner of the goods was resting in the hostel, and asked the driver to drive away with him to unload the goods. When the car drove away, was found by Zhao Diancheng, Zhao immediately shouted stop, the car did not stop. Li Ganwen let the driver will drive to a district of Baoji City, his relatives, and then unloaded all the goods in the car, for themselves. Cowhide 420, 589 pounds of apples, 48 pounds of tea, electric mattress 4, sacks 8, worth **** RMB 47,110 yuan. Subsequently, Li Ganwen sales part of the stolen goods, the amount of 4080 yuan. After the crime, most of the stolen money and goods were recovered and returned to the owner. Question (1) Is Li's behavior a crime of theft? Try to explain the reasons. (2) Is Lee's behavior a crime of fraud? Try to explain the reasons. (3) Is Lee's behavior a crime of robbery? Try to give reasons. (4) Under what circumstances is Lee's conduct convertible to robbery?
Answer (1) Lee's behavior is not theft. Because Lee's behavior in this case to obtain other people's property is in the owner's attention, and the owner of the car when he drove away has been found in time, can not be consistent with the crime of theft is the perpetrator through the secret stealing method of unlawfully obtaining other people's property characteristics. (2) Li's behavior does not belong to the crime of fraud. Because the crime of fraud requires the perpetrator of fictitious facts or concealment of the truth, so that others believe, and "voluntarily" to the perpetrator of the act of property. In this case, it is clear that the owner of the goods is not "voluntary" to Li Ganwen's property, so does not meet the elements of fraud. (3) Li's behavior belongs to the crime of robbery. Lee's behavior meets the conditions of the crime of robbery. Because, although Li will be the owner of the goods away from the car, but not far from the car, the car with the goods is still in the line of sight of the owner of the goods. When Lee drove the car away, the owner of the goods immediately found, and shouted to stop, which shows that Lee's behavior is not in line with the characteristics of covert theft, but to take advantage of the open seizure, in line with the characteristics of the crime of robbery. Although Li also used some deception, but the owner of the goods is not because of deception and "voluntarily" will be handed over to Li, Li is not the main means of deception and possession of the goods, and therefore should not be convicted of fraud, but should be convicted of the crime of snatching. (4) Li Ganwen in the implementation of the above acts, if in order to conceal the stolen goods, refused to arrest or destruction of evidence and the use of violence or the threat of violence on the spot, the nature of its behavior into the crime of robbery.
Analysis
(1) the crime of robbery ~ to unlawful possession for the purpose of taking advantage of others, blatantly seizing a large amount of public and private property. The objective manifestation of this crime, manifested in the behavior of taking advantage of others, blatant seizure of public and private property. Here the blatant seizure, including two meanings: ① in front of the public and private property owners or custodians of the face, take advantage of their unpreparedness, the blatant seizure of their property. Blatant seizure is an important symbol of this crime is different from the crime of theft. ② The perpetrator breaks into another person's house, confronts the owner of the house and takes away the TV set, record player and other property on the table, or snatches the property in the hands of a passer-by in a quiet alley late at night, even though there is someone present, it is also a blatant seizure. Therefore, it is necessary for the crime of robbery to be committed in the presence of the owner or custodian of the property. If the owner or custodian of the property is not present, even if the property is taken without the eyes and ears of others, it is still a clandestine theft.
(2) the boundaries of the crime of robbery and robbery ~ have the purpose of unlawful possession of public and private property, the main body is basically the same, and all with a "robbery" word. The main difference between the two: ① violation of the object is not exactly the same. Robbery not only violates the ownership of public and private property, but also violates the victim's personal rights, while the crime of robbery only violates the ownership of public and private property. ② the objective elements of the crime are different. Robbery is the use of violence, threat or violation of personal rights, robbing property, and robbing the amount of property in the law has no limit; and the crime of robbery is to take advantage of the property holders are not prepared, blatantly take the property from their hands, and robbing the amount of property must reach a larger amount of time, to constitute a crime. The statutory penalty is different. The statutory penalty for robbery is heavier than the crime of robbery. In addition, China's Criminal Law stipulates that the carrying of a weapon to snatch, shall be recognized as the crime of robbery. The criminal law also specifically provides that the crime of robbery, theft, fraud in order to conceal, refusing to arrest or destroy evidence of crime and the use of violence or threat of violence on the spot, the crime of robbery. The correct understanding is: ① the perpetrator must have committed theft, fraud, robbery, which is the application of the premise of the conversion. The implementation of the above acts do not reach the larger amount, but, if the use of violence or threat of violence on the spot, the circumstances are serious, according to the crime of robbery. ② Must be the use of violence or threat of violence on the spot.
On the spot ~ the scene of the criminals to commit crimes or just away from the scene was found in pursuit of the process. If after the completion of the theft, fraud, robbery crime, was not detected or apprehended in a timely manner, but after a period of time or in other places to find the criminals, when their arrest, the criminals murder to resist arrest, can not be considered to be converted into a case of robbery. If the violent act constitutes a crime, the original crime and the crime of resisting arrest shall be punished together. It should be noted that the situation must require the perpetrator to use violence or threat of violence on the spot,
Use of violence or threat of violence ~ criminals to arrest him to carry out acts that are sufficient to jeopardize the health or safety of life, or to threaten to carry out such acts.
The case (10):
Case Zhang Wanyu and Wang Zhongshan, both music teachers at the university, played and recorded a tape of the music "Mountain Heavy Water" together. The tape recorded the erhu solo piece "Ode to the Yellow River" composed by Zhang Wan Yu and Yang Songming **** together, and the erhu solo piece "Three Sunny Days" and "Three Folds in the Water Country" which Zhang Wan Yu had adapted and transplanted but had not yet been publicly released. Prior to the recording, "Spiritual Thoughts" from Ode to the Yellow River had been publicly released. The works on this tape were performed by Wang Zhongshan, except for the piece "Three Folds in the Water Country", which was performed by Zhang Wanyu. Shanghai Television Art Center Audiovisual Publishing House (hereinafter referred to as the "Publishing House") learned that Dalian Magnetic Tape Factory Audiovisual Company (hereinafter referred to as the "Audiovisual Company") had a tape master of Erhu, and signed an agreement with the Audiovisual Company to transfer the copyright of the Erhu tape master, agreeing that the Publishing House would have the right to publish and distribute it exclusively. The publisher and the audiovisual company signed an agreement on the transfer of the copyright of the master tape of Erhu, agreeing that the publisher would enjoy the exclusive right of publication and distribution, and that the audiovisual company would not be allowed to transfer the master tape to any other organization for publication and distribution. After obtaining the master tape of Erhu from the audio-visual company, the publishing house decided to publish the cassette without any editing work, and named the cassette Erhu Classics. The cassette did not contain an orchestrator, but the name of the orchestrator was stated on the binding paper. Before publishing the cassette, the publisher had not obtained the permission of the copyright holder, Zhang Wanyu, nor had it obtained the permission of the performers, nor had it entered into a written contract with the performers. After the publication of the tape, the publisher did not sign the name of the copyright owner and the performers on the binding paper, and did not pay the remuneration. At the same time, the last eight bars of the epilogue of "Spiritual Thoughts" were deleted. After consulting with experts, the deletion of the eight bars of music destroyed the integrity of the musical work. For this reason, Zhang Wanyu, Wang Zhongshan and Yang Songming filed a lawsuit with the court, requesting the court to order the audio-visual publishing house to stop the infringement, to stop reproducing and distributing the infringing tapes, to publicly publish an apology to eliminate the impact, and to pay the remuneration in accordance with the state regulations and to compensate for the spiritual loss. What kind of rights did the publishing house violate according to the Copyright Law?
According to the Copyright Law, the audio-visual publishing house infringed on the following rights: (1) the right to publish the musical works adapted and transplanted by Zhang Wanyu but not yet published, such as the erhu solo piece "Sanyangtian" and "Shuixiang Sanjian"; (2) the performer's rights of Zhang Wanyu and Wang Zhongshan; (3) the authorship of the musical works of Zhang Wanyu, Wang Zhongshan, and Yang Songming; and (4) the authors of the piece, Zhang Wanyu and Yang Zhongshan, and Yang Songming. (iv) violated the right of the authors of the music, Zhang Wanyu and Yang Songming, to preserve the integrity of their works.
Analysis: Citizens' copyrights are protected by national laws. Article 10 of the Copyright Law stipulates that copyright includes personal rights and property rights. Personal rights include the right of publication, the right of attribution, the right of modification, the right to protect the integrity of the work, and the property right is the right to use and the right to receive remuneration. In this case, the audio-visual publishing house, without the permission of the copyright owner Zhang Wanyu, published without authorization the erhu solo piece "Sanyangtian", and "Shuixiangsanjie" which had not yet been publicly released and which violated the right of publication of the musical work enjoyed by Zhang Wanyu. Article 36 of the Copyright Law stipulates that performers have the following rights over their performances: (1) to indicate the identity of the performer; (2) to protect the image of the performance from distortion; (3) to authorize others to broadcast from the scene; and (4) to authorize other people to record audio-visual recordings for the purpose of making profit and to receive remuneration for the same. In this case, the audio-visual publishing house did not obtain the performer's permission before publishing the cassette of "Erhu Classics" and did not enter into a written contract with the performer, so the cassette of "Erhu Classics" was made without signing the names of the authors of the songs and the performers on the framing paper according to the relevant provisions of the Copyright Law, which violated the right of authorship of the musical works enjoyed by Zhang Wanyu, Wang Zhongshan, and Yang Songming. At the same time, when the cassette tape of "Erhu Classics" was published and distributed by the Audiovisual Publishing House without authorization, the content of the musical work of the eight bars of the song "Spiritual Thoughts" was deleted from the end of the special part of the song, which undermined the completeness of the original musical work and infringed the right of the songwriters, Zhang Wanyu and Yang Songming, to maintain the integrity of their own works, and caused the musical work to be tampered with to some extent. The Audiovisual Publishing House shall be liable for its infringement in accordance with the relevant provisions of the Copyright Law. Zhang Wanyu, Wang Zhongshan and Yang Songming's request for the Audiovisual Publishing House to publish an apology in order to eliminate the influence and restore their reputation should be supported. The audio-visual publishing house should also pay remuneration to Zhang Wanyu, Wang Zhongshan and Yang Songming in accordance with the Interim Provisions on Payment Standards for Statutory Licenses for Sound Recordings and Supplementary Notices issued by the State Copyright Administration, and compensate for the losses. Relevant laws, regulations and judicial interpretations of the Copyright Law, Articles 36-38, 45 items 1, 4 and 6, and 46 items 4.
The case (1):
The case shaking yarn female worker Dong Mou in a textile company as a laborer, for stealing the company's color yarn was fired. The afternoon of December 12, a year, the general manager of the company found dong mou was dismissed still stay in the company and live in the company's dormitory, so reprimanded and drive away dong mou, dong mou will harbor a grudge, want to retaliate. 3:40 on the morning of December 13, dong mou took a box of matches left the dormitory, walked to the fourth floor of the warehouse of the goods ladder, by the time when no one around, cut a match, lit a pile of yarn in the southwest corner of the warehouse, and caused a big fire, burned. As a result, a fire broke out, destroying all the goods in the warehouse on the fourth floor and the women's dormitory in the northern part of the warehouse, which was illegally partitioned with wooden boards, and a large amount of poisonous gas was released when the goods in the warehouse were burning, which entered the women's dormitory on the outside of the warehouse through the gas window, resulting in the deaths of 61 employees who were burned to death by the fire, and poisoned to death, smoked to death, and 15 women were injured, resulting in huge economic losses. Question (1) Has Dong's behavior constituted the crime of arson? (2) If Dong ignited the yarn materials piled up in the southwest corner of the warehouse and ran away for fear of being discovered, and because the yarn materials were damp and burned slowly, and were extinguished by the employees guarding the warehouse who found them in time, was Dong's crime a completed or attempted crime? (3) If Dong was not dismissed, but during his work, he wanted to take the opportunity to smoke a puff of cigarette, and threw the struck match randomly, ignited the yarn materials piled up in the southwest corner of the warehouse, so as to cause the major casualties and property damage in the case, should Dong's behavior be recognized as constituting the crime of arson? Answer (1) Dong's behavior constitutes the crime of arson. Because the defendant dong mou for stealing by the company dismissed and repelled, produce dissatisfaction, in order to give vent to private anger intentionally set fire to the company's property, resulting in the death of 61 employees, 15 female workers were injured, the serious consequences of serious economic losses, has been a serious danger to an unspecified majority of the people and public and private property of the public **** safety. (2) Dong's criminal act is an attempt. Arson is a serious danger to the public * * * security of society, as long as the perpetrator has objectively committed the act of arson, even if it did not cause serious consequences, it is considered to have constituted an attempt. (3) Dongmou's behavior should not be recognized as the crime of fire, but should be recognized as the crime of major liability accidents. Because Dong was an employee of the company, he violated the company's rules and regulations during his work, resulting in a major accident and property damage, seriously jeopardizing the company's production safety. Meet the elements of the crime of major responsibility accident.
Analysis of the crime of arson ~ intentionally setting fire to public and private property, endangering the safety of public ****.
(1) constitutive elements ~ ① objective implementation of the act of arson sufficient to endanger public **** security. ② violation of the object is public and private property. ③ subjective from the intent. Arson enough to cause a fire, endangering public **** safety, that is, constitute an attempt. The subject of the crime is the general subject. Because of the great social danger of the crime of arson, China's Criminal Law stipulates that a person aged 14-16 who commits the crime of arson shall be held criminally liable.
(2) and intentional homicide, the boundaries of the crime of injury ~ arson crime in causing significant public and private property damage at the same time, but also often cause serious injury or death, if only from the point of view of the harmful consequences of the casualties, perhaps with the crime of homicide, the crime of injury is not different. However, the crime of arson and intentional homicide, injury has an important difference: the former infringement of the object is public **** security, the latter infringement of the object is the right to life and health of others. Therefore, if the perpetrator kills or injures a specific individual by means of arson, without endangering the safety of many people and the public ****, it should be criminalized as intentional homicide and injury, and should not be punished as arson.
3) Boundary with the crime of intentional destruction of property ~ the crime of arson and the crime of destroying public or private property by means of arson, both of them will cause the loss of public or private property, but their nature is fundamentally different. The object violated by the crime of arson is unspecified, and the damage caused is unpredictable and uncontrollable; the object of the crime of intentional destruction of property is specific public or private property, and the damage caused can be controlled within a certain range. Therefore, if the perpetrator of arson as a means of destroying public and private property, without endangering the safety of the public ****, should be designated as the crime of intentional destruction of property, and can not be punished by the crime of arson.
(4) and the destruction of transportation and other crimes ~ the perpetrator of arson as a means of destroying transportation traffic equipment, electrical equipment, gas equipment, flammable and explosive equipment and communications equipment, also in line with the characteristics of endangering the safety of the public **** by dangerous methods. However, China's "Criminal Law" of these crimes have made special provisions, there is no need to be punished for arson, but should be defined as the crime of destroying transportation, the crime of destroying transportation equipment, the crime of destroying electrical equipment, the crime of destroying gas equipment, the crime of destroying flammable and explosive equipment and the crime of destroying communications equipment.
The crime of misfire ~ due to negligence caused the fire, resulting in serious consequences, endangering the safety of the public **** behavior, the crime of misfire in the subjective can only be constituted by negligence, that is to say, the perpetrator should foresee their own behavior may cause the fire, due to negligence and carelessness and did not foresee, or have foreseen, but gullibly believe that can be avoided. As for the behavior of the perpetrator to cause the fire itself, it may be knowingly committed, such as smoking in all kinds of flammable and explosive warehouses where fireworks are strictly prohibited. Only fire behavior, did not cause serious consequences, does not constitute a crime.