Appellant (defendant in the original trial) Yu, female, born in Ningbo City, Zhejiang Province on October 23, 1975, Han nationality, high school education, unemployed, living in Houda, Zhaobaoshan Street, Zhenhai District, Ningbo City Room 401, 398 Street. He was arrested on July 16, 2004 on suspicion of organizing prostitution.
The appellant (defendant in the original trial) Ding, male, was born in Ningbo City, Zhejiang Province in August 1963. Han nationality, junior high school education, unemployed, living at No. 7-7 Daici Lane, Jiangbei District, Ningbo City. He was arrested on July 16, 2004 on suspicion of organizing prostitution.
The defendant in the original trial, Ye Ying, male, born in 1985, was born in Tiantai County, Zhejiang Province, Han nationality, junior high school education, unemployed, and lived in Zhufeng Village, Longxi Township, Tiantai County, Zhejiang Province. He was arrested on July 16, 2004 on suspicion of assisting in organizing prostitution. On October 4, 2004, he was released on bail by the Jiangdong District People's Procuratorate of Ningbo City pending trial.
The defendant in the original trial, Tong Mou, male, was born in Ningbo, Zhejiang Province on February 27, 1975. He is Han nationality, has a high school education, is unemployed, and lives in Room 601, Lane 528, Tongtu Road, Jiangdong District, Ningbo City. He was arrested on July 16, 2004 on suspicion of assisting in organizing prostitution. On October 4, 2004, he was released on bail by the Jiangdong District People's Procuratorate of Ningbo City pending trial.
The Ningbo Jiangdong District People’s Procuratorate filed a public prosecution with the Ningbo Jiangdong District People’s Court on charges that defendants Yu and Ding were guilty of organizing prostitution, and defendants Ye Ying and Tong were guilty of assisting in organizing prostitution.
The four defendants have no objection to the basic criminal facts of the charges. Defendant Yu's defender pointed out that Yu did not commit any criminal act, it was just a manifestation of criminal intention and did not constitute the crime of organizing prostitution. Defendant Ding's defender proposed that most of the young girls in this case were recruited by the defendant Yu and had attempted crimes, and requested a lighter punishment. Defendant Ye Ying's defender suggested that Ye Ying had a better attitude in pleading guilty and requested a lighter punishment. Defendant Tong's defender pointed out that Tong did not have the same criminal intention as other defendants, and it was difficult to determine that Tong's behavior was to help organize prostitution. Even from a crime-fighting perspective, Tong should be given a lighter sentence.
The Jiangdong District People’s Court of Ningbo City found out after trial that from April to June 2004, the defendants Yu and Ding planned to recruit young women to engage in prostitution in Brunei. Under the recruitment of the defendant Yu, Luo Maonian, Yuan, Wang Jing, Gao, Wang Caiqun, Bao Haiya and other young women agreed to the defendant Yu to engage in prostitution and other activities in Brunei. Among them, the young woman Wang Jing was recruited by the defendant Yu through the defendant Ding. The defendant Ye Ying knew that the defendants Yu and Ding were recruiting young women and wanted to take them abroad to engage in prostitution. The defendant Yu then went through exit procedures for the above-mentioned young woman and Ye Ying. The defendant Tong knew that the defendant Yu wanted to take him out of the country to engage in prostitution, but he still used the group tour organized by Ningbo Xinkanghui Travel Agency to apply for passports and visas for the above-mentioned people, and also provided services for Yu, Luo Maonian, Yuan, Wang Jing purchased a ticket to Brunei. The defendants Yu and Ding planned to take the above-mentioned people to Brunei for prostitution in three batches. The defendant Yu led the first group of people to arrive in Brunei first, and the defendant Ding took charge of the last two groups of people who had not completed the exit procedures. On June 12, 2004, the defendant Yu, together with Luo Maonian, Yuan, and the first group of people, were captured by the public security organs at the entrance of Duantang Expressway, which was about to leave Ningbo for Shanghai.
Court Trial
The court of first instance held that defendants Yu and Ding organized multiple young girls into prostitution by introducing, recruiting, etc., and their actions constituted the crime of organizing prostitution; defendant Ye Ying , Tong knew that the defendants Yu and Ding were organizing prostitution for young girls and provided assistance to them, and their actions constituted the crime of assisting in organizing prostitution. Defendant Yu's defender argued that Yu only expressed his intention to commit a crime and that his opinion that he had not committed a crime was inconsistent with the facts and the law and should not be adopted. 4. The defendant's criminal act has not been completed due to reasons other than his will, so it is an attempt and should be given a lighter punishment in accordance with the law. Defendant Ding’s defender’s request for a lighter punishment was accepted. The opinions on lenient punishment put forward by the defenders of defendants Ye Ying and Tong shall be adopted.
According to the Criminal Law of the People's Republic of China, Article 358, Item 1 and 3, Article 25, Item 1, Article 23, Article 73, Item 2 and 3, According to the provisions of Article 64, the verdict is as follows: 1. The defendant, who committed the crime of organizing prostitution, was sentenced to five years in prison and fined 10,000 yuan; 2. The defendant D, who was guilty of organizing prostitution, was sentenced to five years in prison. and was fined 7,000 yuan; 3. Defendant Ye Ying was guilty of assisting in organizing prostitution and was sentenced to one year in prison, suspended for two years, and fined 3,000 yuan; 4. Defendant Ye Ying was guilty of assisting in organizing prostitution and was sentenced to fixed-term imprisonment Eight months, suspended for one year, and fined 2,000 yuan;
After the first instance verdict, the defendants Ye Ying and Tong obeyed the verdict. Defendants Yu and Ding were dissatisfied and appealed to the Ningbo Intermediate People's Court. Yu appealed and said that he had no objection to the facts found in the original judgment, but it only indicated that there was criminal intention and should not constitute a crime. If it does constitute a crime, it is also a preparatory act for a crime. Ding appealed, claiming that compared with the first defendant, his role was secondary and he should be an accessory. The original sentence imposed on him was obviously biased.
The court of second instance held that the original judgment found that the appellants Yu and Ding were guilty of organizing prostitution, and the original judgment found that the defendants Ye Ying and Tong were guilty of assisting in organizing prostitution. The evidence proving the above facts is consistent with criminal evidence. The basic characteristics of legality, relevance and objectivity were all confirmed by cross-examination by the court of first instance. The appellant and defendant in the original trial had no objection to the facts, and the evidence was reliable and sufficient to establish the case. Appellants Yu and Ding planned to recruit young women to engage in prostitution abroad, and obtained passports, visas, and air tickets for some young women. Yu had already set out to commit the crime of organizing prostitution, but failed due to reasons other than his will, which is considered an attempted crime. Therefore, the behavior of the appellant Yu is not a manifestation of criminal intention, and the form of intentional crime is not preparation for a crime. His grounds for appeal do not comply with legal provisions and cannot be established. Appellants Ding and Yu * ??* * cooperated with each other premeditatedly, and Ding cannot be found to be an accessory in this case. Because this case was an attempted crime, the original judgment applied a lighter punishment to Ding for the crime of organizing prostitution in accordance with the law, and sentenced Ding to five years in prison, which was not inappropriate within the scope of the statutory penalty. Therefore, Ding’s reason for appeal is inconsistent with the facts, evidence and legal provisions found in this case and cannot be established. The original judgment was made based on the criminal facts of the original trial appellant and defendant, the nature and circumstances of the crime, and the degree of harm to society. The judgment, conviction and application of the law were correct, the sentence was appropriate and the trial procedure was legal. In accordance with the first paragraph of Article 189 of the Criminal Procedure Law of the People's Republic of China and the first and third paragraphs of Article 358 and the first paragraph of Article 25 of the Criminal Law of the People's Republic of China, In accordance with the provisions of Article 23, Paragraph 2, Paragraph 3 of Article 73, and Article 64, the judgment is as follows: the appeal is dismissed and the original judgment is upheld.
Comments and Analysis
(1) Dispute
The focus of the dispute in this case is the form of crime. During the trial of this case, there was no objection to the characterization of defendants Yu and Ding's crime of organizing prostitution, but there were three interpretations of whether the two defendants had committed a crime, attempted a crime, or prepared for a crime.
The first opinion is that the organization of prostitution has been completed. The reason is that the crime of organizing prostitution is an act crime, not a result crime. As long as the perpetrator carries out organized behavior for the purpose of prostitution, regardless of whether the criminal result pursued by the perpetrator occurs, the crime should be regarded as completed. The defendant in this case carried out recruitment behavior and should be deemed as a completed crime.
The second opinion is that the organization of prostitution was attempted. The reason is that the crime of organizing prostitution refers to the act of controlling multiple people for prostitution by means of recruitment, employment, coercion, inducement, accommodation, etc. Although it is a criminal act, it is not a single act, but a composite act composed of several acts. Criminal behavior is based on whether the legal criminal act is completed or not as a sign of the success of the crime. In this case, it was determined that the defendant's behavior had not yet qualified the organizer for prostitution and the criminal act had not yet been completed.
The third opinion is to organize preparations for prostitution. The reason is that preparation is a state of behavior that prepares tools and creates conditions for crime. The defendant's behavior only created conditions for the start of prostitution, not as an organizer to start the implementation stage of prostitution, but also as preparation for the crime. The defendant's organizational behavior during this period was the organizational behavior in the early stage of crime preparation. It was seized during the crime preparation stage and should be deemed as crime preparation. Therefore, the defendant in this case has begun to organize others for prostitution. Due to reasons other than his will, his behavior has not yet ended, and the criminal intention has not succeeded, and it should be deemed as an attempt.
(2) Cleavage
1. Organized crimes stipulated in the criminal law are closely related to * * * organized acts committed in the same crime, and are composed of * * * It is transformed from the organized behavior committed, that is, organized crime stipulated in the separate provisions generally has its original crime. For example, the crime of organized escape is the original crime, and the organized behavior committed by the original crime is stipulated as organized crime in the criminal law. * * *The act of organizing the same crime is different from the act of committing it. If it is not stipulated in the special provisions of the criminal law, it can only be punished according to the general provisions. In the criminal law provisions, some organizational behaviors of * * * criminals that seriously endanger society and are of a bad nature are defined as special crimes, which are regarded as part of the execution behavior of organized criminals, and the stage of "starting" the commission of crimes is advanced. , intensify the crackdown. This is the crime of organizing prostitution. The crime of organizing prostitution is essentially a part of the crime of forcing others to engage in prostitution, as well as the crime of luring, harboring, and introducing women into prostitution. Including recruitment, employment, gathering, coercion, inducement, accommodation, introduction and other behaviors. If there is no such crime, the organizational behavior of forcing others to engage in prostitution, luring, harboring, and introducing women into prostitution is a criminal preparatory sentence. Therefore, the defendant's intentional criminal form does not constitute criminal preparation.
2. In my country’s current criminal law, there have always been three different theories regarding the standards for the completion of a crime, namely, the theory of complete constituent elements, the theory of criminal results and the theory of criminal purpose, but no one theory can completely describe the crime. punishment. It is more reasonable to combine the three theories to determine the form of crime. In the case of purpose crime, the criterion for judging the completion of the crime is whether the criminal purpose has been realized. In the case of a consequential crime, whether a specific harmful result occurs is the criterion for determining whether the crime has been completed. When a crime is committed, whether the specific harmful act is completed is used as the criterion for judging whether the crime is completed. Behavioral crimes can also be divided into behavioral crimes and degree crimes. Behavioral crimes only require the perpetrator to start committing a specific criminal act, which constitutes a completed crime. For example, as long as the perpetrator illegally invades another person's house, it constitutes a completed crime. Degree crimes require the perpetrator to go through a certain process before the crime can be established. Behavioral crimes in our country's criminal law are mostly degree crimes. The objective aspect of the crime of organizing prostitution consists of two parts. First, there are organizational behaviors such as recruiting, hiring, seducing, and directing (that is, the behavior of controlling multiple women). This is the organizational behavior of the * * * accomplice in the original crime, and it has been stipulated as part of the implementation behavior here. The second is to cause prostitution of many people (that is, to accommodate, introduce, seduce, and gather women into prostitution), which is the most criminal act in the original crime. The above two parts are the execution of the crime, and the execution of the crime is the dual execution of criminal law theory. This kind of crime with dual executions requires two executions that are externally and internally connected in terms of means and purpose to constitute the objective elements. The combination of means and objective behavior constitutes the complete commission of a crime. Therefore, once the crime is completed, both are indispensable. This is also a requirement that degree crimes must go through a certain process before they can be established. The defendant was arrested for organizing the recruitment of prostitutes and other organized acts, and the acts were not over yet, let alone directing women to engage in prostitution. Therefore, recruitment under his organization is still in progress, no prostitution of women has occurred, and the level requirements have not yet been met. Therefore, the act was not a completed crime.
3. The essential requirement for attempted crime is "reasons other than will", that is, the perpetrator stopped the crime due to factors other than will, but did not reach the completed state. In judicial practice, "reasons other than will" can be roughly divided into subjective aspects and objective aspects. From a subjective point of view, the act of organizing prostitution in this case was directly intentional, and the intentional content was to complete the act of organizing other people's prostitution, not just to solicit prostitution, but also to hope that one's own solicitation of prostitution would be successful. The prostitutes recruited by the defendant were seized on their way to their destination before they started prostitution due to objective factors. The prostitution activities she hoped for did not happen, and the intentional content of the crime of organizing prostitution has not been fully realized, which is in line with the provisions of "failure to succeed" in our country's criminal law.
(3) Conclusion
To sum up, the defendant recruited and seduced women, but was caught by the public security organs before prostitution. The crime of organizing prostitution has not been completed and does not constitute the crime of organizing prostitution. That’s it. It is undoubtedly correct to characterize the crime of organizing prostitution as an attempt in the first and second instances.
Key Points
The crime of organizing prostitution is not only reflected in the conduct carried out by the organizer through recruitment, employment, inducement, command and other means. , also manifested in the act of controlling the prostitution of many people. It is a complex behavior consisting of several behaviors. As long as one of the harmful behaviors is implemented, it does not constitute a crime.
If the perpetrator is investigated during the process of recruiting, hiring, luring, or directing, the crime has not yet been completed and should be considered an attempted crime.