Second, what are the constitutive elements of perjury?
(A) the object elements
The object of this crime is the personal rights of citizens and the normal activities of judicial organs, and it is a complex object. However, some people think that not all forms of perjury will definitely infringe on citizens' personal rights. For example, the crime of perjury of concealing criminal evidence will not infringe on citizens' personal rights, but it will definitely infringe on the normal activities of state judicial organs. Therefore, the object of perjury is single, that is, the normal activities of state organs.
Perjury interferes with the normal activities of judicial organs, which refers to the criminal litigation activities of judicial organs. The civil litigation activities and administrative litigation activities of judicial organs cannot be the objective elements of perjury. Article 102 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that the people's court may, according to the seriousness of the case, impose fines and detention on participants or other personnel who forge or destroy important evidence, hinder the people's court from hearing a case, or prevent witnesses from testifying by violence, threats or bribery, and instigate, bribe or coerce others to commit perjury; If a crime is constituted, criminal responsibility shall be investigated according to law. Article 49 of the Administrative Procedure Law of the People's Republic of China stipulates that if a litigant participant or other personnel forges, conceals or destroys evidence, or instigates, bribes or coerces others to commit perjury, or threatens or prevents witnesses from testifying, the people's court may, according to the seriousness of the case, admonish them, order them to make a statement of repentance or impose a fine of 1000 yuan. If it constitutes a crime, criminal responsibility shall be investigated according to law, because criminal proceedings are different from civil and administrative proceedings in nature, and the social harm caused by perjury is also different. If the crime of perjury obstructs civil and administrative litigation, it cannot be directly punished as perjury.
The object of this crime can be a guilty person or a person suspected of being guilty but actually innocent.
(b) objective factors
Objectively, this crime is manifested as the act of falsely proving, identifying, recording and translating important information related to the case in criminal investigation, prosecution and trial, or the act of concealing criminal evidence. The so-called false certificate, false appraisal, false record and false translation refer to the witness's false certificate, the appraiser's false appraisal, the recorder's false record and the translator's distorted translation. The so-called concealment of criminal evidence refers to covering up and distorting the truth, destroying evidence and concealing the evidence that should be provided. The so-called plot that has an important relationship with the case mainly refers to the plot that constitutes a crime, the nature of the crime or has a significant impact on the severity of the crime. If the facts of perjury are irrelevant and have little influence on the handling of the case, it cannot be considered as perjury. As for whether the crime of perjury has caused a wrong judgment and does not affect the conviction, it can be considered as a sentencing circumstance.
The behavior of the actor forging, altering, destroying vouchers and concealing the truth does not occur in the criminal proceedings of judicial organs, but in the investigation and handling of general liability accidents, or in administrative activities such as auditing and supervision, and cannot be punished as perjury. For example, Article 26 of the Accounting Law of People's Republic of China (PRC) stipulates that administrative leaders, accountants and other personnel of units who forge, alter or intentionally destroy accounting vouchers and accounting books shall be given administrative sanctions; If the circumstances are serious, criminal responsibility shall be investigated according to law. The Audit Law of People's Republic of China (PRC) also stipulates that audit institutions may give warnings and informed criticism to units, persons directly responsible for units, persons in charge of units and other relevant personnel who practise fraud and conceal the truth, and may impose fines as appropriate; Audit institutions that should be given administrative sanctions shall be transferred to supervision or relevant departments for handling; If the circumstances are serious enough to constitute a crime, the auditing organ shall request the judicial organ to investigate criminal responsibility according to law. 1987 Article 23 of the Measures for Handling Medical Accidents promulgated and implemented in the State Council on June 29th stipulates that if medical records or related materials are lost, altered, concealed, forged or destroyed after a medical accident or incident, and the circumstances are serious, the person directly responsible shall be investigated for administrative responsibility; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated by judicial organs according to law. Although the acts described in the above-mentioned laws and regulations are serious and constitute a crime, they are objectively manifested as concealing the truth, destroying, forging and concealing relevant information, but they are not in criminal proceedings. The object of behavior violation is different from perjury, and it can only be punished as other crimes according to different situations.
(3) Main elements
The subject of this crime is a special subject, that is, it can only be a witness, an expert witness, a recorder and an interpreter in criminal proceedings. In the process of criminal proceedings, "witness" refers to a person who states what he knows about the case according to the requirements of judicial organs; "Appraiser" refers to a person with special knowledge or skills appointed or hired by judicial organs to appraise the truth and facts of certain cases; The "recorder" refers to a person who takes notes for the investigation and evidence collection of a case, questioning witnesses and victims, or questioning criminal suspects and defendants. "Translator" refers to the person appointed or hired by the judicial organ to act as an interpreter for foreigners, ethnic minorities or deaf-mute people in the case, and also includes the person who translates legal documents or evidence materials in the case.
(4) Subjective factors
Subjectively, this crime must come from direct intention, that is, the actor knows that his false statement is a plot that has an important relationship with the case, but he acts to frame others or conceal criminal evidence. If the perpetrator does not intentionally frame others or conceal criminal evidence, he cannot be punished for this crime. For example, the actor made a wrong appraisal conclusion, record or translation due to carelessness or carelessness in his work, or failed to reflect his original intention due to mistakes, omissions, mistranslations and omissions, and so on.
Three, how to correctly identify the crime of perjury in judicial practice?
(A) the boundaries between this crime and non-crime
Irresponsible or negligent in the work of appraisers, recorders and translators, or providing incorrect appraisal, recording and translation due to limited professional level; And people who know little about the real situation of the case, have inaccurate knowledge, or provide hearsay testimony, thus providing false proof, because they do not have the subjective intention of perjury, do not constitute perjury. Although there is perjury, the circumstances are obviously minor and the harm is not great, so it should not be considered as a crime. According to 1989 "Provisions on the Standards for People's Procuratorates to Directly Accept Cases of Infringement on Citizens' Democratic Rights, Personal Rights and Dereliction of Duty" issued by the Supreme People's Procuratorate on June 30th, criminal responsibility shall be investigated for perjury in any of the following circumstances, (1) perjury is enough to make others suffer criminal punishment or severe punishment for misdemeanor; (2) Perjury is enough to make criminals evade criminal punishment or give a light sentence for a felony; (3) Perjury causes injustice, falsehood or misjudgment. (4) State functionaries take advantage of their positions to destroy criminal evidence or create perjury for economic criminals; (five) perjury caused others to commit suicide or mental disorders; (six) perjury caused other serious consequences.
(2) The boundary between this crime and the crime of false accusation and framing.
Both charges have the intention of framing others. The difference between them is that (1) the subject of the former is a special subject; And the subject of the latter is the general subject. (2) The former acts during the investigation and trial; The latter's behavior was carried out before filing a case for investigation, which is the cause of case investigation. (3) The former is realized through false proof, false identification, false record and false translation; The latter is a false report. (4) The former only provides perjury in individual cases that are important to the case; The latter fabricated the whole criminal fact. (5) The former may have two purposes: framing others or shielding criminals; The purpose of the latter can only be to frame others and make innocent people suffer criminal punishment.
(3) The boundary between this crime and the crime of harboring drug criminals.
The perpetrators of these three types of crimes are very similar in making false certificates and hiding criminal evidence for criminals, with the aim of shielding criminals. The main differences are as follows: (1) The main requirements are different. Perjury is a special subject; The latter two kinds of harboring crimes are general subjects. (2) The crime of perjury can only be committed in the investigation and trial stages; The latter two crimes can be committed before the criminal is arrested or detained, or after he is arrested or sentenced. (3) The content of the crime is different. The crime of perjury covers the criminal circumstances important to the case; The latter two crimes can cover all crimes or important criminal facts. (4) Occlusion of objects is different. The crime of perjury covers pending criminal suspects who have not been arrested or sentenced in investigation and trial; The latter two crimes can cover up criminal suspects who have not yet been sentenced, convicted criminals or criminals who have escaped during their sentences.
Fourth, how to punish perjury?
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.