Criminal law case analysis refers to the analysis of whether the behavior of the actor constitutes a crime, whether criminal responsibility should be investigated, and how to convict and sentence. There are three main problems to be solved in the case analysis of criminal law: first, whether the actor's behavior constitutes a crime; Second, if it constitutes a crime, what crime it constitutes; The third is to explain the principle of conviction and sentencing (if it is a judicial examination, it is only necessary to explain the principle of conviction and sentencing, and it is not necessary to point out the specific applicable punishment).
II. Illustrate
1 Crime of endangering national security: [Brief Introduction] Defendants Sun Mou and Yu Mou took the initiative to collect China's military and economic secrets for the intelligence agencies of country A. Taking advantage of their work, the two men repeatedly stole and spied on the state secrets kept by their own units, and bought a batch of state secrets from others. Six times, 3 copies of information were sold to the relevant departments of country A, including 12 confidential documents, 1 top-secret documents and 8 secret documents, with an illegal profit of 6, yuan. Three other top secret documents were not sold in time because of the incident. [Legal Analysis] According to the provisions of Article 111 of the Criminal Law, the actions of the two defendants have constituted the crime of stealing, spying, buying and illegally providing state secrets and information abroad.
the crime of stealing, spying, buying and illegally providing state secrets and information for overseas refers to the act of stealing, spying, buying and illegally providing state secrets and information for overseas organizations, institutions and personnel without the approval of relevant departments. The motive of the actor does not affect the establishment of this crime.
state secrets ~ important information related to national security and interests that is limited to a certain range of people in a certain period of time according to legal procedures. It is divided into three levels: top secret, confidential and secret. Top secret ~ the most important state secret, if leaked, will cause particularly serious losses to national security and interests. Confidential ~ important state secrets, the disclosure of which will cause serious losses to national security and interests. Secret ~ general state secret, the disclosure of which will cause great losses to national security and interests. Intelligence ~ all information, situations and materials that can be used by overseas institutions and organizations. Stealing ~ stealing secrets by means of stealing, usually files, computers and photographs. Spy ~ to obtain state secrets or information through eavesdropping, such as asking people familiar with the situation, using social means, conversation, academic exchanges and other methods to explore. Bribery ~ exchange money and other material benefits for state secrets and information. Illegal provision ~ the act of providing state secrets and information abroad without the approval of the relevant departments.
In this case, Sun Mou and Yu Mou took advantage of their work to steal and spy on the state secrets kept by their own units, bought a batch of state secrets from others, and sold 3 of them to the intelligence agencies of country A. The actions of the two defendants constituted an offence. It can be seen that the actions of the two defendants have constituted the crime of stealing, spying, buying and illegally providing state secrets and information abroad. To sum up, the crime of selling state secrets in exchange for money generally constitutes the crime of stealing, spying, buying, illegally providing state secrets and intelligence abroad. However, if the actor is a soldier and the object of selling is a military secret, it constitutes the crime of stealing, spying, buying and illegally providing military secrets abroad.
2 Crime of endangering public security: [Case introduction] The relationship between Village A and Village B has been bad because of irrigation water problems. Zhou, a villager from A village, sneaked into B village one night and poured a bottle of 5 ml pesticide "dimethoate" into the drinking tower of B village. The next day, B village found that the water quality was abnormal. The next day, village B found that the water quality was abnormal and did not drink it, causing no 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: "Whoever sets fire to, breaks water, explodes, poisons or destroys factories, mines, oil fields, ports, rivers, water sources, warehouses, houses, forests, farms, grain farms, pastures, important pipelines, public buildings or other public or private property by other dangerous means, thus endangering the safety of public * * * *, and has not caused serious consequences, shall be punished by 3.
poisoning ~ deliberately throwing poison. Acts endangering the public (the personal and property safety of unspecified majority). Negligent poisoning ~ negligent poisoning, causing serious injury or death, or causing great damage to public or private property, endangering the public. In addition, we must pay attention to the boundary between the crime of poisoning and murder. Poisoning causes death and endangers the personal and property safety of unspecified majority, which constitutes the crime of poisoning; Only poisoning that causes death and does not harm other people and things constitutes homicide. Poisoning fishing often happens in daily life. If poisoning fishing reaches the drinking water source of people and livestock and endangers the public, it should be classified as poisoning crime. If you fish by poisoning a fish pond contracted by a collective organization or individual, which is not a source of drinking water for people and livestock, it may constitute a crime of destroying production or theft.
3 Crime of disrupting the socialist economic order: [Brief introduction to the case] Before Wang went abroad, his friend told him that he had a panda skin in his hand and had been afraid to sell it. If Wang wanted it, the price was negotiable. With luck, Wang bought this panda skin and wanted to bring out the country's wealth. He hid the panda skin in the interlayer of his suitcase in an attempt to get away with it. It was later seized at the airport.
[legal analysis] Wang knows that pandas are national treasures and panda skins are not allowed to be taken out of the country, but he tries to muddle through and smuggle them illegally, which constitutes the crime of smuggling precious animals and their products. Crime of smuggling precious animals and their products ~ Article 151 of the Criminal Law violates customs regulations, evades customs supervision, and illegally carries, transports and mails precious animals and their products whose import and export are prohibited by the state. Whoever commits this crime shall be sentenced to fixed-term imprisonment of not less than five years and shall also or only be fined. If the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not more than five years and fined; If the circumstances are especially serious, he shall be sentenced to life imprisonment or death, and his property shall be confiscated. If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the above provisions. In the List of National Key Protected Wild Animals approved by China in 1988, there are 12 orders, 55 families, 16 genera and 389 species of rare and endangered wild animals under national key protection. Such as giant pandas, golden monkeys, white veins, red-crowned cranes, deer, gibbons, snow leopards, wild camels and so on. Precious animal products ~ finished products such as skins, hairs and bones of wild animals listed in the national key protection.
4. Crime of infringing personal rights and democratic rights: [Case introduction] Shao owed He a gambling debt to 1 yuan, which he failed to pay back for a long time. One day, He Mou cheated Shao Mou, a 7-year-old boy who had just left school, into the car and forcibly took him away, and sent him to a relative's home in a neighboring county. He sent a letter threatening Shao: Shao must return I yuan within three days, otherwise, he will sell his son to pay his debts. After Shao reported the case to the Public Security Bureau, the child was rescued. There are two opinions on the characterization of He in this case: (1) It constitutes the crime of abducting children; (2) It constitutes the crime of kidnapping and extortion.
[ Case analysis] According to the original criminal law, He's behavior constitutes the crime of kidnapping and extortion; According to the current criminal law, He's behavior constitutes the crime of kidnapping. Crime of kidnapping ~ the act of kidnapping others for the purpose of extorting property or kidnapping others as hostages. He's gambling debts are not protected by law. In order to force Shao to repay gambling debts, He committed kidnapping, which subjectively has the purpose of extorting property and constitutes the crime of kidnapping. Kidnapping children for the purpose of selling is an act of kidnapping children in the current criminal law. Although He Mou threatened to sell the child, it was only for the purpose of extorting property to intimidate the other party, which could not be regarded as selling. Therefore, He Mou's behavior did not constitute crime of trafficking in children. This topic examines the crime of kidnapping and crime of trafficking in children. 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 fixed-term imprisonment of not less than 1 years or life imprisonment, and shall also be fined or confiscated of property; Whoever causes the death of the kidnapped person or kills the kidnapped person shall be sentenced to death and his property shall be confiscated. " Article 4 of the Criminal Law: "Whoever abducts and sells women and children shall be sentenced to 5-1 years' imprisonment and fined; Under any of the following circumstances, he shall be sentenced to fixed-term imprisonment of not less than 1 years or life imprisonment, and shall also be fined or confiscated; If the circumstances are especially serious, he shall be sentenced to death and his property shall be confiscated; (1) the ringleader of a gang that abducts and sells women and children; (2) abducting and selling more than three women and children; (3) raping a trafficked woman; (4) luring or forcing trafficked women into prostitution or selling trafficked women to others to force them into prostitution; (5) abducting and selling women and children by means of violence, coercion or anesthesia; (6) stealing infants and young children for the purpose of selling; (7) Causing serious injury, death or other serious consequences to abducted women and children or their relatives; (8) selling women and children abroad. Crime of abducting and selling women and children ~ the act of abducting, kidnapping, buying, selling, picking up and transferring women and children for the purpose of selling.
5 Crime of infringing on property: [Introduction to the case] Wang was sentenced to 2 years in prison according to law for several crimes, and was released on parole after serving 13 years. In the sixth year of parole test, Wang stole a car without being found. In the fourth year of parole, Wang was arrested for robbery and confessed the crime of stealing a car during the probation period of parole. Q: (1) Is it necessary to revoke Wang's parole? (2) How to punish Wang's theft during his parole? (3) How to deal with the robbery after Wang's parole? (4) How to determine Wang's final sentence?
[legal analysis] (1) Wang needs to revoke his parole. According to Article 86 of the Criminal Law: "If a paroled criminal commits a new crime during his parole, his parole shall be revoked. "(2) According to the provisions of Articles 69, 71 and 86 of the Criminal Law, if Wang steals during parole, he should be sentenced according to the new crime, and the punishment for the previous crime and the punishment for the later crime should be combined. (3) According to the provisions of the Criminal Law, "A criminal on parole who commits a crime that should be sentenced to fixed-term imprisonment or more within five years after the expiration of parole is a recidivist and should be given a heavier punishment, so Wang should be given a heavier punishment as a recidivist". (4) Wang was guilty of theft and should be sentenced to punishment; The penalty imposed for theft and the 7-year sentence to be executed after being released from prison shall be determined as appropriate when the sum of combined punishment for several crimes is below and the maximum sentence for combined punishment for several crimes is above. Wang's robbery is given a heavier punishment for recidivism, and the penalty imposed for robbery is combined with the previous penalty to calculate the total sentence, and the fine should still be executed. ② Wang's robbery is given a heavier punishment for recidivism, and the penalty imposed for robbery is combined with the previous penalty to calculate the total sentence, and the fine should still be executed. This problem involves the application of parole, the determination of recidivism and the principle of combined punishment for several crimes.
Article 65 of the Criminal Law: "A criminal who has been sentenced to fixed-term imprisonment or above commits a crime that should be sentenced to fixed-term imprisonment or above within five years after his sentence has been executed or pardoned is a recidivist and should be given a heavier punishment, except for negligent crimes. For a criminal who is released on parole, the time limit specified in the preceding paragraph shall be counted from the date when the parole expires. ". Article 81 of the Criminal Law: "A criminal sentenced to fixed-term imprisonment, who has executed more than half of the original sentence, or a criminal sentenced to life imprisonment for more than 1 years, can be released on parole if he earnestly abides by prison regulations, receives education and reform, and truly shows repentance, and will not endanger society after parole. If there are special circumstances that need to be solved, with the approval of the Supreme Court, the above-mentioned prison term may be exempted. " Recidivism and criminals sentenced to fixed-term imprisonment of more than 1 years or life imprisonment for violent crimes such as murder, explosion, robbery, rape and kidnapping shall not be released on parole. " Article 74 of the Criminal Law: "Probation is not applicable to recidivists". Article 86 of the Criminal Law: "If a criminal who is released on parole commits a new crime within the probation period of parole, his parole shall be revoked and he shall be punished for several crimes in accordance with the provisions of Article 71 of this Law. During the period of parole, if it is found that the paroled criminal has other crimes that have not been sentenced before the verdict is pronounced, the parole shall be revoked and punished in accordance with the provisions of Article 7 of this Law. If, during the probation period of parole, a criminal on parole violates laws, administrative regulations or the provisions of the State Council and the public security department on the supervision and administration of parole, and does not constitute a new crime, his parole shall be revoked in accordance with legal procedures and he shall be put in prison to execute the final penalty. " Article 99 of the Criminal Law: "Above, below and within this Law includes this number." Article 71 of the Criminal Law: "After the judgment is pronounced, but before the punishment is completed, if a criminal who has been sentenced commits a new crime, he shall, in accordance with the provisions of Article 69 of this Law, determine the punishment that has not been executed for the previous crime and the punishment imposed for the later crime." Article 69 of the Criminal Law states: "Before a person commits several crimes, he shall decide the penalty to be executed at his discretion under the maximum penalty of combined punishment for several crimes and combined punishment for several crimes, except for the death penalty and life imprisonment. The maximum term of public surveillance shall not exceed three years, the maximum term of criminal detention shall not exceed one year, and the maximum term of fixed-term imprisonment shall not exceed twenty years. If several crimes are combined and sentenced to additional punishment, the additional punishment must still be executed. "
corruption, bribery and dereliction of duty: Li is the manager of a state-owned foreign trade company. In June 1995, in a foreign trade business, Li trusted foreign businessmen and changed the settlement method without authorization, which made the company cheated millions of dollars in payment, resulting in huge losses to the national interests. In March 1996, Li lent the company's loan of 2 million yuan to Wu Mou, the person in charge of the company, without the company's collective research. When the case was committed in 1998, there were still 8, yuan outstanding. At the end of 1997, Wu Mou thanked Li and gave him 1, yuan as a "festival fee". In May 1996, Zhang's son was arrested for causing trouble. Zhang entrusted Li to help clear the relationship, and Li proposed to spend 3, yuan. Zhang gave Li 4, yuan, claiming that 1, yuan belonged to Li. As a hard work fee, Li gave 3, yuan to the case-handling personnel, so that Zhang's son could be exonerated. According to the above cases, answer the following questions: (1) How should Li be convicted of being cheated in foreign trade business? 2) Does Li's act of lending 2 million yuan to the transportation company constitute a crime? Why? 3) Does it constitute a crime for Li to accept Wu Mou's "festival fee" and Zhang to help and accept "hardship fee"? Why?
[Case study]: (1) Li was cheated in foreign trade business. It constitutes the crime of being cheated for dereliction of duty in signing and performing contracts.
Crime of being cheated for dereliction of duty in signing and performing a contract ~ Article 167 of the Criminal Law stipulates: "If the directly responsible person in charge of a state-owned company, enterprise or institution is cheated due to serious irresponsibility in signing and performing a contract, resulting in heavy losses to the state property, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, resulting in particularly heavy losses to the state interests.
(2) Li lends a huge sum of money without authorization, which constitutes misappropriation. Or misappropriate a large amount of public funds for profit-making activities; Or the amount of misappropriation of public funds is relatively large, and it has not been returned for more than three months. As a manager of a state-owned company, Li lent public funds without collective discussion, which was huge and lasted for two years, which was in line with the characteristics of misappropriation of public funds. In determining this crime, we should pay attention to: misappropriating public funds for personal use, including not only personal use, but also the misappropriation of people to lend to others and units in their own names. For example, in this case, Li misappropriated public funds without collective research.