Every year, some topics of criminal law are directly selected from three textbooks, and many candidates do not pay attention to these topics, which is very inappropriate. Now is the final sprint stage. I make a final sprint by listing the places that candidates easily ignore in the textbook.
1. From the nature of violating legal norms, omission not only violates the prohibitive norms of criminal law, but also directly violates some mandatory norms. For example, the act of not providing help in the crime of abandonment is manifested in not giving help to people who have no ability to live independently. This behavior not only violates the prohibitive norm of the crime of abandonment in Article 26 1 of the Criminal Law, but also directly violates the mandatory norm in the Marriage Law.
2. Only when the actor's performance as an obligation can avoid the result, his inaction may constitute a crime. For example, the driver's fault caused a traffic accident, which led to the victim skull fracture's life, even if he was sent to the hospital immediately, or when the victim would die immediately, even if the driver didn't help, he was only convicted of traffic accident, not intentional homicide by omission.
3. A intentionally committed violence against B by killing people, causing B to be seriously injured and dying. When B was treated in the hospital, doctor C was slightly negligent and failed to save B's life. Because A's behavior has a high risk of death, and intervention (slight negligence) has little effect on death, it should be determined that there is a causal relationship between A's behavior and B's death.
4./kloc-Actors under the age of 0/4 put poison in other people's wine and hide the poisoned wine in the wine cabinet. When others drink, the actor is 14 years old. It can be considered that before the age of 14, the actor has the obligation to eliminate the danger that his behavior may cause. He is over 14 years old, and still fails to perform the obligation of eliminating the hazard source, thus causing the death of others.
5. laissez-faire is based on the premise that the actor realizes that the harmful result may or may not happen. If the actor has realized that his behavior will inevitably produce harmful results and is determined to implement it, there is no possibility of laissez-faire, and his subjective will can only belong to the direct intention of hoping that the result will happen.
6. Among all the damage results of excessive defense, due to the premise of legitimate defense, this damage result can actually be divided into two parts: one part is due damage and the other part is unnecessary damage. Excessive defense only bears criminal responsibility for its undue harmful results, but not for all harmful results. This is also the subjective and objective basis for China's criminal law to clearly stipulate that excessive defense should be mitigated or exempted from punishment, and it is the embodiment of the basic principle of balance between crime and punishment.
7. Not all violent crimes, such as beating, murder, robbery, * * * * * *, kidnapping, etc., can be defended by the excessive defense system. Only when violent crimes seriously endanger personal safety can we defend ourselves without undue restrictions. For example, for the illegal infringement of robbery, use anesthesia methods that will not cause casualties to others, and you cannot defend yourself without improper defense.
8. Abducting and selling children, even if children are obtained, will not affect the establishment of crime of trafficking in children.
9. The impossibility of achieving a goal and a means is limited to situations where there is a risk of harmful results. If an act is completely impossible to lead to harmful results, it should not be punished as attempted crime. For example, if you shoot a scarecrow as an enemy in a barren field and it is impossible to cause casualties to others, it is not an attempted crime. For another example, people who mistake fitness drugs for arsenic and throw them into other people's food should not be punished as attempted crime because there is absolutely no possibility of causing casualties.
10.*** An accomplice may only refer to an * * * accomplice with the criminal object and objective elements. For example, at the request of Party A, who is 16 years old, Party B keeps alert for Party A's burglary. In this case, it should be considered that B and A have the same crime in the sense of the object and objective elements of the crime. B conforms to the subject and subjective elements of this crime, so it is an accessory in this crime (theft) (on this occasion, B cannot be regarded as an indirect principal). However, because A has not reached the age of criminal responsibility and does not meet the requirements of the criminal subject, he cannot be convicted and sentenced for theft.
1 1.A tried to rob and violently attacked A. After suppressing A's resistance, B arrived at the scene and knew that A was robbing A's property. B and A took A's property together. In this case, both Party A and Party B committed robbery.
12. Party C tried to rob Party B's property and violently attacked it, resulting in serious injury to Party B. At this time, Ding arrived at the scene, knowing that Party C was going to rob Party B's property, and both Ding and Party C * * * robbed Party B's property. Although Ding and C committed robbery, Dante was not criminally responsible for B's serious injury, and only C was criminally responsible for B's serious injury.
13.C and D both intentionally hurt B, but I don't know whose behavior caused B's serious injury. For this, C and D should be responsible for B's serious injury.
14.x and Y*** both deliberately committed violence against C, resulting in C's death. C has only one fatal wound, but I don't know who caused it. Afterwards, it was found that X had the intention to kill and Y only had the intention to hurt. In this regard, X should be found guilty of intentional homicide (accomplished) and Y of intentional injury (death).
15. If the instigator commits the abetting act, but the abetted person does not commit the abetted crime, neither the instigator nor the abetted person constitutes * * *, but the instigator should still bear criminal responsibility.
16. Party A * * * conspired to kill C who works in the museum, and at the same time shot C with their guns. A hit the precious cultural relics protected by the state, but B didn't hit any targets. This is * * * accomplice. Because Party A and Party B intentionally killed Party C, but failed to cause Party C's death, they were convicted of attempted intentional homicide. A's behavior also violated the crime of negligent destruction of precious cultural relics, and negligent crime does not constitute * * *, so B's crime is not established. A's behavior is that one behavior violates several charges and belongs to imaginative joinder, so in fact A can only be punished as attempted murder.
17. Party A invited Party B to commit violence against Party C. Party B thought that Party A only wanted to hurt Party C. In fact, Party A intended to kill people, and both sides committed violence against Party C, which led to Party C's death ... In this case, only within the scope of intentional injury can Party A and Party B constitute * * * accomplices, and Party C is responsible for the death result. However, because A has the intention and behavior of killing people, A should be regarded as the crime of intentional homicide.
18. Party A instigated Party B to destroy public telecommunication facilities, while Party B misunderstood the contents of Party A's instigation and destroyed military communication facilities. Party A is an instigator of the crime of destroying public telecommunication facilities because of his intention and behavior of instigating others to destroy public telecommunication facilities. Within this range, B and A have * * * behaviors (some crimes are the same as * * *). However, because B's behavior also conforms to the constitutive requirements of the crime of undermining military communications, B's behavior was identified as the crime of undermining military communications.
19. Party A thinks that Party B is a person without criminal responsibility and instigates Party B to commit theft, with the intention of being an indirect principal offender. In fact, Party B has criminal responsibility and committed theft. If the criminal law divides the * * * offender into principal offender, abettor and abettor, it must be determined whether A is indirect principal offender or abettor. Although the criminal law of our country divides the * * * offender into principal offender, accessory offender and coerced accomplice, the instigator should be punished according to its role in the criminal process, but in the sense of whether to be convicted by * * *, it is still necessary to distinguish whether A is an indirect principal offender or instigator. According to the principle of criminal law, A should be regarded as an instigator within the scope of the unity of subject and object. In the opposite case, that is, instigating the other party to bear criminal responsibility, but in fact, the other party has no criminal responsibility and can only be identified as an instigator within the scope of the unity of subject and object.
20. Whoever steals a gun for the purpose of killing people and uses the stolen gun to kill people cannot be regarded as a crime. Because the legal evaluation of intentional homicide cannot include the legal evaluation of theft, theft and intentional homicide should be punished together.
2 1. If the stolen files are state secrets, it is a crime of stealing state-owned files and illegally obtaining state secrets, which belongs to imaginative joinder and is punished as a felony.
22. * * * * * * If a woman causes her serious injury, because the criminal law has aggravated the statutory punishment, she is an aggravated offender. Those who force women to molest or seriously insult women will not be aggravated because the criminal law does not aggravate the statutory punishment.
23. If there is only implicated relationship objectively and there is no implicated relationship subjectively, it is not appropriate to identify it as implicated offense. For example, the criminal stole a hunting gun a year ago and used it to rob a bank a year later. Although the two behaviors are related objectively, they are not related subjectively, so the establishment of implicated offense is denied.
24. Although there is a subjective implicated relationship between means behavior and purpose behavior, if the implicated relationship between means behavior and purpose behavior is abnormal, it should not be considered as implicated offense. For example, a person who steals a gun in order to rob a bank and then robs a bank with the stolen gun should be punished with several crimes of robbery and theft, and cannot be regarded as an implicated offender.
25. If the death penalty is commuted to life imprisonment or fixed-term imprisonment according to law, although the punishment is greatly reduced, it is not the commutation system stipulated in Article 78 of the Criminal Law.
26. Violent criminals sentenced to fixed-term imprisonment of more than 10 years or life imprisonment may not be released on parole, even if the sentence is less than 10 years after commutation.
27. As long as new crimes are committed within the probation period of parole, even if new crimes are found after the probation period of parole, parole should be revoked and combined punishment should be implemented according to the method of reducing first and then combining.
28. Using an insurance contract to defraud insurance money violates the crime of insurance fraud and contract fraud. The principle of application is that law is more important than law (20 10, p.12). Insurance fraud is the use of insurance contracts. In this sense, insurance fraud violates the crime of insurance fraud and contract fraud. Article 224 stipulates the crime of contract fraud and article 6544 stipulates the crime of insurance fraud. On this premise, if the principle that special law is superior to common law is applied, there will be unreasonable phenomena: whoever uses insurance contracts to defraud insurance money, no matter how big the amount is or how serious the circumstances are, can only be sentenced to 15 years in prison; Those who use other economic contracts to defraud property may be sentenced to life imprisonment. Therefore, if we think that there is a relationship between the special provisions and the general provisions between Article 198 and Article 224 of the Criminal Law, we can apply this principle on the premise that the heavier provisions are better than the lighter provisions, and realize the principle of adapting crime to punishment. First of all, using insurance contracts to defraud insurance money violates the special and general provisions of the same law; Secondly, the statutory punishment stipulated by the special law of the same law is obviously lower than that stipulated by the common law. Moreover, judging from the case, the application of special law does not conform to the principle of adapting crime to punishment; Finally, Article 224 of the Criminal Law does not prohibit the application of common law, that is, it does not explicitly stipulate that special law must be applied as Article 266 of the Criminal Law. Therefore, the principle that law is superior to law can be applied.
29. If the perpetrator sets fire to destroy criminal evidence after committing other criminal acts, or sets fire to defraud insurance money and has started to defraud insurance money, he shall be punished for several crimes. (Page 1 15 of 20 10)
30. It is an extended explanation, not an analogy explanation, to interpret the car in the crime of destroying vehicles as including large tractors.
3 1. Stealing and robbing guns, ammunition and explosives belong to abstract dangerous crimes: as long as the perpetrator commits the act of stealing and robbing guns, ammunition and explosives, he can draw dangerous conclusions according to the general life experience of society. Those who steal or rob dangerous substances belong to specific dangerous crimes, and it is necessary to judge whether they are dangerous to the public according to the types of dangerous substances and the acts of theft and robbery. If they didn't endanger public safety, they wouldn't be convicted of this crime.
32. If the perpetrator commits the crime of illegally manufacturing guns and ammunition, and then holds and hides it, it belongs to the crime of absorption and is only convicted of the crime of illegally manufacturing guns and ammunition.
33. The perpetrator knew that drunk driving was illegal and would endanger public safety, but ignored the law and continued to drive after the accident, causing heavy casualties, indicating that the perpetrator subjectively left the continuous harmful results unchecked and had the intention of endangering public safety. If such drunk driving causes heavy casualties, he shall be convicted of endangering public safety by dangerous means according to law.
34. Whoever violates traffic regulations during or after stealing another person's motor vehicle and causes a traffic accident, which constitutes a crime, shall be punished as traffic accident and theft.
35. After the traffic accident, the perpetrator thought that the victim was dead and drowned the victim in the river in order to hide the traces of the crime. In fact, the latter behavior should be regarded as the crime of negligent death. If the previous act constitutes a traffic accident crime, it shall be punished for several crimes.
36. Lines that have been electrified, but have been suspended due to dry season or power shortage, should still be regarded as lines in use. If the perpetrator cuts the wires in such lines privately, which constitutes a crime, he shall be investigated for criminal responsibility according to the crime of destroying power equipment.
37. Transportation in the crime of illegally transporting dangerous substances includes both domestic transportation and domestic and overseas transportation.
38. Whoever commits the crime of producing and selling counterfeit drugs also constitutes the crime of producing and selling fake and inferior products, the crime of infringing intellectual property rights, the crime of illegal business operation, the crime of illegal medical practice, and the crime of illegal blood collection and blood supply. , convicted and punished in accordance with the provisions of heavier punishment.
39. If a state-owned company, enterprise or its directly responsible supervisor sells state-owned assets to himself, his spouse or children at a low price without permission, or colludes with others to sell them to others in name, but actually makes profits for himself, it is deemed as corruption, not the crime of converting shares at a low price for personal gain or the crime of selling state-owned assets.
40. Using counterfeit money means using counterfeit money as real money. You can use counterfeit money in seemingly legal ways, such as buying goods, changing them into another currency, depositing them in a bank, giving them to others, paying fines or penalties with counterfeit money, or using counterfeit money in illegal ways, such as gambling. In addition, the crime of using counterfeit money is to deliver counterfeit money to people you don't know, and to put counterfeit money into vending machines to get goods.
4 1. Whoever uses counterfeit money as capital to prove his credit ability and shows it to others in order to sign a contract with the other party to prove his performance ability is not using counterfeit money.
42. If the defendant mistook the gains and benefits of a predicate offence stipulated in Article 19 1 of the Criminal Law for other gains and benefits within the scope of the predicate offence stipulated in Article 19 1 of the Criminal Law, it will not affect the determination of the predicate offence of money laundering.
43. Stealing someone else's real and valid credit card without using it does not constitute theft or credit card fraud.
44. Using forged, altered or stolen military vehicle license plates, failing to pay or underpaying vehicle purchase tax, vehicle use tax and other taxable taxes. , tax evasion is a large amount and accounts for more than 10% of the tax payable.
45. If the perpetrator illegally purchases or uses military vehicle number plates, and the circumstances are serious, and fails to pay or underpays taxes such as vehicle purchase tax and vehicle use tax, which constitutes tax evasion, he shall be punished for the crime of illegally buying and selling military symbols and the crime of tax evasion.
46. If the actor accepts the other party's goods, payment, advance payment or secured property, it will only have the purpose of illegal possession, but only escapes without resorting to fictional facts or concealing the truth to exempt the other party's debts, it is not considered as contract fraud.
47. Paragraph 4 of Article 224 of the Criminal Law stipulates that "escaping after receiving the goods, payment, advance payment or secured property of the other party" is limited to the purpose that the actor has illegal possession before receiving the goods, payment, advance payment or secured property of the other party, and the other party has paid the goods, payment, advance payment or secured property because of the fraud of the actor.
48. When A learns that his friend B (an ordinary citizen) has a large amount of deposits, he will deliberately commit fraud. A claims that his business is absolutely profitable. After investing 500,000 yuan, he can earn 6.5438+0 million yuan in three months, but he doesn't have 500,000 yuan at present. He hopes that B will invest 300,000 yuan and return 600,000 yuan in three months. Party A drafted a written contract according to the above contents. After both parties signed the contract, Party B paid Party A 300,000 yuan ... Party A escaped after getting 300,000 yuan from Party B, and the behavior of Party A should be regarded as ordinary fraud rather than contract fraud. In the crime of contract fraud, the other party should be the market subject engaged in business activities, otherwise it is difficult to identify as the crime of contract fraud.
49. If the actor signed a contract with others to provide fake and inferior commodities after accepting the payment from others, it should generally be recognized as the crime of producing and selling fake and inferior commodities, and should not be recognized as the crime of contract fraud.
50. If a member of an intermediary organization asks for or illegally accepts other people's property while providing false documents, he will only be convicted of providing false documents, but the statutory punishment will be upgraded. Asking for or illegally accepting other people's property should not include asking for or illegally accepting huge amounts of property; In other words, if an intermediary organization asks for other people's property or illegally accepts other people's property while providing false documents, it is considered as the crime of accepting bribes by non-state staff.
5 1. framing a person who has not reached the legal age or has no ability to identify or control a crime also constitutes the crime of false accusation and framing.
52. It is a violation of women's sexual autonomy, sexual shame, sexual autonomy and sexual behavior order. For example, the act of taking off women's underwear out of revenge in public or non-public places is an infringement of women's sexual autonomy and also an infringement of women's reputation. However, as far as women's sexual autonomy is concerned, the nature of this right is more important than other reputations. No matter what motive and purpose, no matter where, the act of forcibly stripping women of clothes and trousers belongs to the crime of compulsory indecency and insult to women.
53. Violence always interferes with freedom of marriage. As long as one of them is intentional homicide or intentional injury, it constitutes the crime of violent interference with freedom of marriage and the crime of intentional homicide or intentional injury, and several crimes are punished together.
54. The crime of forcing employees to work is a way to restrict personal freedom. If we take the method of depriving personal freedom, such as locking employees in the workshop for a long time, it is the combination of the imaginary crime of forcing employees to work and the crime of illegal detention, which will be treated as a felony.
55. Violating labor management laws and regulations, employing child workers to perform key jobs and restricting personal freedom to force them to work. If the circumstances are serious, a combination of several crimes shall be imposed.
56. In the use of violence, coercion and other acts, the victim fled out of fear, leaving the property around him at the scene, and the perpetrator robbed the property on the spot, which constituted robbery. If the perpetrator commits violence or coercion, causing the victim to lose property when he runs away, and the perpetrator picks up property when he is chasing, it should not be regarded as forcibly robbing property, that is, it should not be regarded as robbery completed, but as attempted robbery and embezzlement.
57. Whoever uses violence to obtain legal debts does not commit robbery, but may commit intentional injury, illegal detention, illegal invasion of houses, etc.
58. In the process of theft, fraud and robbery, it is found that others have not yet obtained property, and they use violence or threaten violence to illegally obtain property, which should be directly recognized as robbery, and the post-robbery crime in Article 269 of the Criminal Law is not applicable.
59. In order to make money afterwards, killing the victim first belongs to killing for money. The crime of intentional homicide is established, but the crime of robbery is not established.
60. Even if it is one's own property, if it is in the state of being legally occupied by others, the perpetrator steals the property, which constitutes theft. For example, the actor consigned his property from place A to place B through the railway operation department, and the actor stole the property after delivery, which should be classified as theft.
6 1. Whoever, after obtaining other people's property, has the intention of destroying it, and simply places it instead of destroying it, commits the crime of intentionally destroying the property, because this behavior leads to the victim losing the effectiveness of the property. Anyone who uses another person's property after obtaining it with the intention of destroying it is guilty of corruption.
62. If there is no intention to pay the room and board expenses, but it is said in disguise that it will be paid, the large amount belongs to the crime of fraud.
63. The actor was supposed to pay for the room and board, but after eating and living, he did not pay by deception, which did not constitute the crime of fraud. For example, after eating in a high-end hotel, the actor claimed to send his friend away and come back to pay. But after sending my friend out of the hotel, I felt that I didn't pay the fee, so I took the opportunity to slip away. Because the victim did not exempt the perpetrator from the debt, that is, there was no punishment, it is difficult to identify this behavior as fraud.
64. First, Party A sells its real estate to Party B, and after Party B obtains the ownership of the real estate through registration, Party A sells the real estate to Party C in order to defraud Party C's property and conceal the truth, thus causing property losses to Party C. A's behavior constitutes fraud.
65. Party A sells his piano to Party B, stipulating that Party A will keep the piano for one month (ownership has been transferred to Party B); During this period, Party A sold the piano to Party C (there is no common understanding between Party A and Party C), resulting in property losses to Party B.. A should be regarded as the crime of embezzlement, because A illegally disposed of all the property of B. ..
66. The perpetrator instigated suicide, which made the victim have a wrong understanding of the existence, degree and status of rights and interests. When his consent to death is invalid, it should be considered as intentional homicide. For example, the doctor lied to the patient and said, "You can only live for three months at most, and you will start to have severe pain after one week." If the patient commits suicide and the patient agrees that suicide is invalid, the doctor should consider it as intentional homicide.
67. Whoever causes serious injuries through negligence should be directly identified as the crime of negligent death, and the model of intentional injury cannot be applied to identify the crime of negligent death.
68. The criminal law stipulates that the crime of illegal detention only protects real freedom (limited theory), that is, only when the behavior violates the real freedom of others can it be recognized as the crime of illegal detention. For example, if a person who has fallen asleep is locked in his room and unlocked before he wakes up, the crime of illegal detention will not be established.
69. In order to claim debts that are not protected by law or unilaterally claimed debts, the actor dominates and controls the victim with strength, and then threatens to kill or hurt the victim, which should be recognized as the crime of kidnapping.
70. In order to claim debts, the actor takes a third person who has no property, support or maintenance relationship with the debtor as a hostage, which should be recognized as the crime of kidnapping.
7 1. Whoever kills the kidnapped person in the process of kidnapping is a joint crime, that is, the crime of kidnapping and intentional homicide are combined into one crime. If an attempt is made to kill the kidnapped person, the provisions of "Whoever kills the kidnapped person shall be sentenced to death with confiscation of property" shall apply. At the same time, the punishment provisions of the general principles of criminal law on attempted crime are applicable.
72. After kidnapping another person, the perpetrator intentionally commits an injury, * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *.
73. Stealing state-owned archives belonging to state secrets commits the crime of stealing state-owned archives and illegally obtaining state secrets, and is punished as a felony.
74. If a person who does not have the qualification to practice medicine accidentally repeatedly and continuously treats a certain disease for a specific person, it does not constitute the crime of illegal medical practice. For example, a nurse in a hospital, without medical qualification, agreed to give 1500 yuan to B's son for drug rehabilitation. Without the necessary physical examination for C and knowing the degree of drug addiction, A copied a prescription for drug rehabilitation from work. When using a large dose of drugs on C, C had an adverse reaction and died after being sent to hospital for rescue. Although A doesn't have the qualification as a doctor, she has no selfless intention of repeatedly giving up drugs for others, and objectively has not repeatedly carried out this behavior. Therefore, it cannot be determined that A is engaged in medical business illegally, so it does not constitute the crime of illegal medical practice. A's behavior should be regarded as the crime of negligent death.
75. Whoever illegally organizes the sale of blood and causes harm to others shall be convicted of intentional injury. The injury here should be limited to serious injury, that is, illegal organization selling blood, causing minor injuries to others, which is considered as the crime of illegal organization selling blood; If serious injury is caused, it shall be deemed as intentional injury, and the statutory punishment for serious injury shall apply. If death is caused, it shall be deemed as intentional injury (death).
76. Killing precious and endangered wild animals constitutes the crime of killing precious and endangered wild animals. Whoever intentionally harms precious and endangered wild animals shall be punished as the crime of intentionally destroying property.
77. The perpetrator was caught in the process of mailing drugs, which belongs to the crime of attempting to transport drugs. If the mail containing drugs has been delivered to the post office, it is a crime of transporting drugs.
78. When drugs are transported by means of transport, the transport is completed when the drugs are put into the vehicle and the vehicle has entered the driving state.
79. Not all drug transfer behaviors can be identified as drug trafficking crimes, but only behaviors related to smuggling, selling and manufacturing drugs can be identified as drug trafficking crimes. For example, the perpetrator lives in place A, buys drugs during a business trip in place B, and then brings drugs back to place A. If it is for smoking, a large number of them are considered as illegal possession of drugs. If it is for the purpose of trafficking, it is considered as the crime of selling and transporting drugs.
80. Seducing * * to betray * and sheltering and introducing * at the same time shall be deemed as the crime of luring * * to betray * and the crime of sheltering and introducing *, and shall be punished for several crimes.
8 1. If the actor owns a huge amount of property and cannot explain its legal source, the court decides to establish the crime of unclear source of huge property. However, in the course of handling the case in the future, the judicial organs found out the source of this huge property. If the source is legal, the original judgment must be upheld and cannot be changed; If the source is illegal, a new conviction shall be made according to the nature of the illegal source, and the original judgment cannot be * * * * * * *.