Key points of knowledge
(1) * * The same crime problem of the person without identity and the person with identity * * When the person without identity and the person with identity commit a real identity crime, it constitutes a * * * crime. For example, if the general subject instigates and helps criminals, defendants and criminal suspects who are detained according to law to escape, the * * * offender of the crime of escape is established.
The special status stipulated in the specific provisions of the criminal law is only for the principal offender (actor); As for the instigator and helper, there is no need for special status at all; If a general subject instigates or helps a person with a special identity to commit a crime with a special identity as its constituent element, it shall be punished as the crime of * * *.
Under the above circumstances, the nature of accomplice should be determined according to the criminal nature of the perpetrator. For example, the general subject colludes with state functionaries to embezzle public property by taking advantage of their positions. State functionaries are the perpetrators of corruption, and the general subject is the perpetrators of corruption.
Note: When people with different identities commit crimes, the nature of the crime is still determined by the criminal nature of the perpetrator. In this case, the actor follows the following ideas: treat people with low status as having no status, treat people with high status as having status, and determine the nature of * * as a crime according to the crime committed by people with high status. For example (question 18 in the second examination paper in 2005), A is a non-state employee and the deputy general manager in charge of finance of a joint stock limited company controlled by a state-owned company; B is a national staff member and the head of the company's finance department. Party A and Party B split equally, taking advantage of their respective positions, * * * embezzled the property of this unit by 6,543,800 yuan. In this case, A was found guilty of duty embezzlement, while B was found guilty of * * *, and was also found guilty of duty embezzlement.
(two) the crime of * * * with false identity.
When the punishment is serious due to specific personal factors, prisoners who do not have such factors are still subject to the usual punishment. For example, if a non-state employee A and a state employee B intentionally falsely accuse and frame up, they will be convicted of the crime of falsely accusing and framing, but the state employee B will be given a heavier punishment, and this provision cannot be applied to A. ..
Anyone who participates in a crime with a specific personal element (identity and purpose) is still a criminal, although he does not have this element.
Second, * * * and cognitive errors.
Key points of knowledge
(a) the same * * * made a formal mistake
1.*** mistakes made by accomplices.
* * * Errors committed by the same subject, including errors within the same constituent elements and errors between different constituent elements, should adopt the theory of legal conformity.
(1) When Party A and Party B conspired to kill Party C, they both thought that the other party was Party C, but actually they killed Party D ... It was an object error in the misunderstanding of specific facts, and both parties were convicted of intentional homicide.
(2) Party A and Party B * * * tried to kill Party C, but they didn't hit Party C in actual operation, but hit Ding around Party C ... According to the theory of legal conformity, A and B belong to specific mistakes in fact. Established a * * * guilty of intentional homicide.
(3) A and B * * * conspired to kill C, thinking that C was in the grass and shot with * * *. As a result, it was not C but C's dog in the grass. Because there is no overlap between subjective and objective aspects, both A and B are innocent and cannot be punished.
(4) When Party A and Party B * * * tried to kill Party C, they all shot at Party C .. A hit the dog around C (dogs are of great value), but B didn't hit anything. Party A and Party B are accomplices in attempted intentional homicide; Because the negligent destruction of property cannot be punished, the crime of destroying property is not established.
(5) Both Party A and Party B * * * have hurt Party C, but Party A has the intention to kill, Party B only has the intention to hurt, and Party C died of the injury. Party A and Party B are accomplices in the crime of intentional injury. Party A is deemed as intentional homicide, while Party B is deemed as intentional injury and death.
2. The instigator's mistake
The instigator's mistake refers to the fact that the instigator knows is inconsistent with the result achieved by the principal.
1) C and D stand side by side. A instigated B to "kill Ding standing on the right", but after listening to it, B "killed C standing on the left" and shot, resulting in C's death. It belongs to the object error in the misunderstanding of specific facts, and both parties are convicted of intentional homicide.
2) A instigated B to kill C, and B shot C, but it was Ding who got hit. Belong to the specific facts of the wrong blow), a and b established intentional homicide accomplished * * *.
3) A instigated B to kill C hidden in the grass, and B shot, but it was actually C's dog. Both parties are innocent, that is to say, they can't be punished. ...
4) A instigated B to kill the dog on C's right, and B became the dog on the left that killed C (actually a child on the left), and B shot and killed the child on the left. B is guilty of causing death through negligence, and A is not guilty.
5) A instigated B to "kill the dog", and B shot and killed the dog and a child without aiming. B is guilty of causing death through negligence, and A is not guilty.
(b) Different forms of errors * * *
1. An accomplice is only established when the actor has the idea of expecting to be an accomplice, but in fact he is just helping.
2. The actor deliberately helped to implement psychological help, which actually played an abetting role and can only be recognized as a helper.
3. If someone else has made a decision to commit a crime, and the perpetrator thinks that he has not made a decision to commit a crime and has committed an abetting act, only an accomplice is established.
There are three main situations about the narrow sense of * * * crime and indirect principal offender:
First, using others to commit a crime has the meaning of indirect principal offender, but it has the result of instigation. For example, A mistakenly thinks that B is an irresponsible psychopath, so he lures B to kill, but B has the responsibility to kill according to A's will. A is the instigator of intentional homicide.
Secondly, abetting behavior is carried out with the meaning of abettor, but it produces the result of indirect principal offender. For example, A mistakenly thought that B was capable of being responsible and instigated B to kill people. In fact, B has no responsibility, and B has no responsibility for killing people. A is the instigator of intentional homicide.
Third, exploited people are instrumental at first, and then they know the truth. For example, doctor A intended to kill patient C and gave the poison to unsuspecting nurse B, who later found out that it was poison, but still injected it. A's behavior should be punished as an instigator of intentional homicide.
(3) * * * Submitted in excess.
1. A instigates B to steal and B commits robbery; A instigated B to hurt, and B committed murder. Party A is responsible for theft (accomplished), and Party A is responsible for intentional injury and death.
2. Party A invited Party B to commit violence against Party C, and Party B thought that Party A only wanted to harm Party C, but in fact Party A had the intention of killing people. Both of them committed violence against Party C, resulting in the death of Party C. Within the scope of intentional injury, Party A and Party B were identified as * * * accomplices (* * * accomplices) and both were responsible for the death result; However, because A has intentional homicide and homicide, A should be considered as intentional homicide.
3. A and B conspired to kill C who worked in the museum, and at the same time fired their guns at C. A hit the precious cultural relics protected by the state, while B missed any target. Because Party A and Party B intentionally killed with Party C, but failed to cause the death of Party C, they were identified as * * * accomplices in attempted intentional homicide. A's behavior also violated the crime of negligent destruction of precious cultural relics (imaginative joinder).
4. Party A instigated Party B to destroy public telecommunication facilities, while Party B misunderstood the contents of Party A's instigation and destroyed military telecommunication facilities. According to some charges, both Party A and Party B were convicted of the crime of destroying public telecommunication facilities, of which Party A constituted the crime of destroying public telecommunication facilities and Party B constituted the crime of destroying military communication.
89. About * * * mistakes in learning and application, the following statement is true ().
A.A. and B * * * tried to kill C. Both of them shot C. A hit the dogs around C (dogs are valuable), and B didn't hit anything. Party A and Party B are accomplices in attempted intentional homicide; Because the negligent destruction of property is not punishable, the crime of destroying property is not established.
B.a instigated B to kill C hidden in the grass, and B shot, but it was actually C's dog. Both A and B are innocent.
C. A instigated B to "kill the dog", and B shot and hit the dog, but missed and killed a child. B is guilty of causing death through negligence, and A is not guilty.
D. Party A instigated Party B to hurt Party A, but Party B killed Party A. Both of them committed the crime of intentional injury, and Party A was responsible for the crime of intentional injury and Party B committed the crime of intentional homicide.
The correct answer to this question is ABCD.
Three. * * * Same crime and crime form
Key points of knowledge
The criminal result has occurred, that is, the legal interests have actually been damaged. At this time, in principle, all prisoners are accomplished, and it is impossible to establish criminal preparation, attempt and suspension.
The result of the crime has not yet occurred, that is, the legal interests have not actually been harmed. At this time,
(1) If one * * * offender has already started to carry out the execution, it is impossible for other * * * offenders to establish the preparation for crime. If some * * * criminals voluntarily give up the crime, and prevent other * * * criminals from continuing the crime or automatically and effectively prevent the occurrence of the criminal result, the execution of this * * * criminal will be suspended, and other * * * criminals will be considered as attempted crimes.
(2) If * * * prisoners have not all started to implement, they are still in the preparatory stage. However, if some * * * criminals voluntarily give up the crime and prevent other * * * criminals from continuing the crime, the * * * criminal will be suspended and other * * * criminals will prepare for the crime.
Note: * * Interruption in accomplice is a common test site in judicial examination, and candidates are required to master its establishment conditions. The so-called suspension of * * * accomplice, also known as the separation of * * * accomplice, requires the actor not only to stop automatically, but also to eliminate the physiological or psychological causal relationship between his behavior and * * * accomplice.
1.*** seeks to stop * * * accomplice:
(1) has the meaning of escaping from the crime of * * *, make it clear to the other party; The meaning of suspension is accepted by the other party.
(2) Planning a felony or the main proposer wants to suspend the sentence, and also requests to prevent other prisoners from committing crimes (taking measures such as informing the victim, withdrawing the promise, and calling the police).
2. The suspension of the instigator: dispel the criminal intention of the instigated person.
(1) The intention to stop is generated before the instigated person starts, and the intention is passed to the instigated person.
(2) instigating a felony or realizing payment, it is also required to prevent the instigated person from committing a crime (taking measures such as informing the victim, withdrawing the promise and calling the police).
For example, A gives B 654.38+ 10,000 yuan to kill C, and 50,000 yuan in advance. Three hours before B killed someone, A regretted it and told B not to kill C..b said "OK" on the phone and hung up. Three hours later, B killed C, and both A and B committed the crime of intentional homicide.
3. Stop helping criminals: eliminate the role of self-help behavior.
Classic question 58 (No.19 in 2008) A and B conspired to steal the car, and A gave B the key needed to steal the car ... but A later told B to give up the crime and asked B to return the key. B said to A, "Wait a few minutes, and I'll give you your key back with a key." A asked for the key he provided. After B stole the car with his own key (worth 50,000 yuan). Which of the following options is correct about this situation?
A.A's behavior belongs to theft, and B. A's behavior belongs to theft preparation.
C.A.' s behavior belongs to attempted theft. D.A. and B constitute * * * criminals who commit theft (accomplished).
Analysis: This topic mainly investigates the separation of criminals.
In the joint crime of * * * *, if the helper wants to stop, he must eliminate all the functions and influences of his helping behavior before he can be completed. Party A * * stole a car, and Party A provided Party B with the keys needed to steal the car. Later, although Party A indicated his intention to quit the crime and asked Party B to return the key, Party A allowed Party B to configure a key, which showed that Party A did not eliminate its help and influence in the crime of * * *, and the crime was not terminated. Therefore, when B begins to commit theft, it means that both A and B have "started"; When B steals a car, A and B are both accomplished thieves. Option d is correct and option ABC is wrong.
The correct answer to this question is D.
Note that if the above case is slightly adjusted, the conclusion will be different: Party A and Party B conspire to steal, while Party A provides the key and Party B implements it. After A gave the key to B, he regretted it and wanted to quit criminal activities, so he asked B for the key back. B no choice but to steal and get the property alone. In this case, A eliminated the role and influence of his helping behavior, and the theft was suspended.
Similar cases include:
For example, according to the meaning of C, A drew the villa structure diagram of the victim B's house in advance, and marked the location of the real estate, and then handed the drawings to C. Before C began to steal, A regretted it and wanted to get the drawings back. But C claimed that he had torn up the drawings, so A stopped pursuing it. Afterwards, C stole B's property by drawing. A was convicted of theft.
Another example is that Party A and Party B have stolen many times. One night, Party A and Party B made an appointment to steal from a villa, but did not discuss the type of theft beforehand. A is lookout, b is burglary. After a while, B came out and said to A, "I didn't steal anything but a car key. Let's go and take the car away. " A was still afraid and said, "You stole yours, I dare not steal a car." B said, "if you don't steal, wait for me for a while." A is still standing at the door of the villa, and B opens the garage door alone and drives out. B told A to get on the bus, and A said, "I'll walk back." B said, "I'll drive you back." A said, "The car you stole has nothing to do with me anyway." So, A got on the car stolen by B and went home. After Party B sent Party A home, he drove the car alone and sold it at a low price, earning 1.2 million yuan. Party A didn't ask for any money for car sales. After investigation, B's stolen car was worth 450,000 yuan. Party A and Party B were convicted of theft, amounting to 450,000 yuan. A is an accessory, an accessory; B is the perpetrator and the principal offender.
4.*** The accomplice is suspended: it is necessary to eliminate the influence of the principal offender, that is, to prevent others from committing crimes.
Party A and Party B jointly commit murder. During the execution, Party A wants to give up. If Party A also prevents Party B from committing a crime, then Party A is deemed guilty and the crime is terminated. If A doesn't stop it, B is finished and A is finished.
Learning and using 90 about * * * criminals, the following statement is correct ()
A.A. and B * * * tried to kill C. Both of them shot C. A hit the dogs around C (dogs are valuable), and B didn't hit anything. Party A and Party B are accomplices in attempted intentional homicide; Because the negligent destruction of property is not punishable, the crime of destroying property is not established.
B.a threatened to expose B's corruption and bribery, forcing B to do harm to C; In order to escape the criminal responsibility of corruption and bribery, B did harm to C, and A was an indirect principal offender.
C in China's criminal law, instigators, perpetrators and helpers can be established as principal offenders, accomplices or coerced accomplices according to the specific circumstances of the case.
D. Party A instigated Party B to hurt Party A, but Party B killed Party A. Party A and Party B were convicted of intentional injury, and Party A was responsible for intentional injury and death, while Party B was convicted of intentional homicide.
The correct answer to this question is AD.
Learn and use 9 1. About * * * criminals, the following statement is correct ().
Aro, a 34-year-old villager, has been dreaming of making a fortune for many years. Superstitious, he asked the fortune-teller for advice on how to get rich. The fortune teller told him, "If you want to get rich, steal." Luo Jun was convinced of this, but thought that a person's theft was not easy to succeed. He invited his friends Yang Wei and Peng Shu to "get rich" together. Three people frequently commit crimes 10, involving tens of thousands of yuan. A fortune teller constitutes an instigator.
B. A kidnapped B's baby and extorted money from B. However, because the baby cried loudly and didn't eat or drink, A was afraid of being exposed and worried about the baby's death, so she asked C to help look after the baby and explain the truth to C. Female C constituted the crime of kidnapping.
C. a city issued a reward regulation for reporting. In order to get the bonus, Li deliberately designed a trap to lure the crime and reported the case to receive the bonus. Li came to the VCD store in Huangkai and offered to buy 400 CDs. Huang refused on the grounds of "tight wind" and Li used raising the purchase price as bait. Huang saw that it was profitable and agreed to deliver the goods in a week. On the day of delivery, Li reported the case to the public security organ in advance. When the two sides handed over, the public security organs arrested Huang. Li constitutes an instigator.
D. For the purpose of robbery and coercion, Party A and Party B committed acts of violence against the victim's daughter C. Violence caused her to die, and Party B found her dead, leaving without committing acts of * *, and Party A took away more than 800 yuan in cash from her. In this case, it is impossible to prove whether the death result was caused by the behavior of Party A or Party B, but it is certain that it was only caused by the behavior of one of them. Because they don't have the same criminal intent, A constitutes ordinary robbery and B constitutes attempted forced crime, and neither of them is responsible for the death result.
The correct answer to this question is ABC.
Learn to use 92(T2008029 1) to say that * * * is the same crime. The following options are correct:
A.a was initially coerced by a terrorist organization to participate in the crime, but after the implementation, he became very active and became one of the principal offenders. A can be the principal in the same crime.
B.b is the perpetrator in the crime of corruption, but may not be the principal offender.
C. Wang was kidnapped for extortion. After taking control of the hostages, C told his friend Gao the truth and entrusted Gao to ask Wang's parents for money. High consent and extortion. C commits the crime of kidnapping and the crime of extortion.
D. Ding Mou colluded with Cheng Mou, and * * * injured the victim Wang. Ding's wooden stick hit Wang's abdomen, and Cheng's short knife stabbed Wang's lungs. Wang was fatally injured by Cheng, and died after being sent to the hospital 10 hour. Ding is responsible for the death result.
The correct answer to this question is ABD.
Learn to use 93 policemen Zhao and A to kidnap Qian and his girlfriend Sun. A found b and c again. After the four kidnapped Qian and Sun, Party A, Party B and Party C were responsible for detaining them. Zhao and others offered a ransom of 300,000 yuan, and relatives of the money were also raising money. In this process, after getting 300,000 yuan, Zhao proposed to A to kill Qian (because Qian knew Zhao), but A insisted on opposing it (A also knew Qian), so Zhao and A had a contradiction. After A and B talked about this, B said to A, "Qian told me that if he was released, he would agree to give us 600,000 yuan." (Because Qian knew Zhao was going to kill himself). Therefore, Party A, Party B and Party C * * * seek to kill Zhao (because only by killing can money be released, so as to get 600,000 yuan, otherwise Zhao may kill Party A, Party B, Party C, Qian and Sun). After planning, one day Zhao entered the place where Qian and Sun were held, and Sun shouted loudly to attract Zhao. After Zhao arrived at the scene, Party A, Party B and Party C stopped Zhao, and Party A gave Qian the knife and asked Qian to assassinate Zhao. Qianmou stabbed Zhao with a knife. Later, Qian and Sun helped to destroy the body. After A and others released Qian, Qian took out 600,000 yuan from his own company to A, and offered to give 50,000 yuan to his girlfriend Sun, and A agreed. In addition, when B is in charge of Sun, he and Sun are also strong. After killing Zhao, Qian has been hiding Zhao's two pistols.
(1) The correct statement about the behavior of Party A, Party B and Party C is ().
A. Party A, Party B and Party C constitute the crime of intentional homicide. Party B, Party B and Party C constitute kidnapping.
C.a, b and c only constitute the crime of kidnapping. The strong behavior of D.B. is absorbed by the crime of kidnapping, and the strong crime is not determined separately.
The correct answer is AB.
(2) Regarding Zhao's murder, the following statement is true ()
A. A, B, C and Qian constitute the same crime of intentional homicide. B. Qian's killing of Zhao belongs to self-defense.
C. killing Zhao with money is an emergency. D. it is illegal to kill Zhao with money.
The correct answer is AD.