First, the main types of campus criminal cases
Campus usually refers to the space range of school buildings, venues, other teaching facilities and living facilities managed by the school. The campus criminal cases studied in this paper refer to the criminal cases that take place on campus, and the perpetrators (criminal subjects) and victims are students, teachers or other subjects of educational legal relations. Campus criminal cases have their particularity: first, the particularity of the subject. The subject of crime is the subject of educational legal relationship who has committed criminal acts and bears criminal responsibility according to law. The victim is the subject of educational legal relationship protected by law and infringed by criminal acts. The second is the particularity of the place where the case occurred. The place where the criminal subject commits the crime must be the campus. The third is the particularity of the time when the case occurred. Campus criminal cases must occur in the process of educational activities of students, teachers and other subjects of educational legal relations in schools.
In view of the particularity of campus criminal cases, the author divides campus criminal cases into the following types with the criminal subject as the classification standard:
(1) Students commit crimes. That is, a criminal case in which the subject of crime is a student. According to different specific criminal objects, student crimes can be divided into student-to-student crimes, student-to-teacher crimes and student-to-school crimes. Among them, the crime of students infringing on students refers to criminal cases in which both the perpetrator and the victim are students. For example, 200 1, 1 1, a group fight occurred in Gucheng Middle School in Xiangfen County, Shanxi Province, causing more than 20 injuries; In February 2004, Ma Jiajue, a student of Yunnan University, killed four students with a knife. In May 2005, Xue Ronghua, a student of Jiangxi Medical College, stabbed seven people with a knife within an hour, resulting in two deaths and five serious injuries. The crime committed by students against teachers is a criminal case in which the perpetrator is a student and the victim is a teacher. For example, in July 20001year, students of a school in Zhengzhou spilled two bottles of sulfuric acid on the principal and others, causing three people to be severely burned; In September 2004, Li Yin, a middle school student in Jilin City, was dissatisfied with the teacher's criticism and chopped the teacher who was correcting homework at school into a serious injury case. A criminal case in which a student commits a crime against a school, that is, the perpetrator is a student and the victim is a school criminal case. For example, in June 2005, students from a university in Changchun, Jilin, Li and others stole the computer of the school.
(2) Teachers commit crimes. That is, teachers commit crimes against students as actors. For example, in March of 20001year, Tang, a middle school teacher in Hunan Province, accidentally injured a student who violated classroom discipline in physical education class; From 2002 to 2003, Zhai, a physical education teacher in a primary school in Beijing, was a 9-year-old female student in rape 3 in the name of "experiment"; In June 2005, a middle school teacher in Liaoning Province, Wang insulted a student and caused his death.
(3) Crimes committed by persons directly responsible in schools and other educational institutions. For example, in June 2002, 5438+065438+ 10, the headmaster of a middle school in Inner Mongolia decided to make up another class from 6 to 7 every night. Before making up lessons, a teacher suggested to Fan that the lights in the teaching building were broken, but Fan ignored it. Results After school on June 5438+065438+1October 2, the students were all anxious to go home. Because there is no lighting, nearly 100 students are seriously crowded on the stairs. In July 2002, Li Mingliang, the headmaster of a private school in Beijing, failed to install safety facilities in the dormitory, which eventually led to gas poisoning of four female students in the school, one of whom died.
According to the classification standard of the specific provisions of the current criminal law in China, that is, to classify crimes with the same criminal object as the main standard, according to the statistical data of campus crime cases in a province in recent five years, it can be seen that the types of campus crime cases are mainly crimes against public security, crimes against citizens' personal rights, crimes against democratic rights and crimes against property. Among them, the crime of infringing on property ranks first, mainly theft, robbery and fraud. Murder, injury, rape and kidnapping are the main types of crimes that violate citizens' personal rights and democratic rights.
Second, the legal relationship of campus criminal cases
Legal relationship is a special social relationship between related subjects adjusted by legal norms. As a kind of legal relationship, criminal legal relationship is the relationship between the state and criminals adjusted by criminal law norms. The nature of legal relationship in campus criminal cases belongs to the category of criminal legal relationship. However, due to the particularity of this kind of criminal cases, its legal relationship has the characteristics of educational legal relationship. Therefore, the author defines the legal relationship of campus criminal cases as educational criminal legal relationship.
(A) the subject of educational criminal legal relations
As mentioned above, the criminal legal relationship is the relationship between the state and the offender. This shows that the subject of criminal legal relationship is the state on the one hand and the criminal on the other. According to this legal presumption, the subject of educational criminal legal relationship is the subject of the state and educational legal relationship that has committed criminal acts and assumed criminal responsibility according to law, including the following three types:
1. Students. Students usually refer to people who are registered in schools and other educational institutions at all levels and have educational files or personal files, including primary school students, middle school students, college students and graduate students [1]. Student is a kind of identity, which shows that citizens are relative persons in school education activities, and only in school can they have the identity of students and have educational legal relations with schools. According to the provisions on the age of criminal responsibility in Article 17 of China's current criminal law, people who have reached the age of 16 should bear criminal responsibility for committing crimes. A person who has reached the age of 14 but is under the age of 16 commits the crime of intentional homicide, intentional injury, serious injury or death, rape, robbery, drug trafficking, arson, explosion or throwing dangerous substances, and shall bear criminal responsibility. For other general crimes, criminal responsibility shall not be investigated. This shows that students under the age of 14 but under the age of 16 are only criminally responsible for the specific eight crimes stipulated by law. /kloc-Students over the age of 0/8 who commit any crime prescribed by law shall bear criminal responsibility. It can be seen that only students who have reached the age of 14 or 16 can become the subject of educational criminal legal relations.
2. Teachers. According to the Education Law of the People's Republic of China, teachers are professionals who perform their educational and teaching duties in schools and other educational institutions, including teachers of various schools and other educational institutions at all levels and private teachers. Teachers are full-time personnel who directly carry out education and teaching activities for students. The Teachers' Law of People's Republic of China (PRC) not only guarantees the basic rights of teachers, but also clearly stipulates their obligations. It is emphasized that teachers should care about all students, respect students' individuality and promote students' all-round development in morality, intelligence and physique. Stop acts that are harmful to students or other acts that infringe on their legitimate rights and interests, and criticize and resist phenomena that are harmful to their healthy growth; Teachers, schools or educational institutions shall give administrative sanctions to corporal punishment of students who refuse to correct after education, behave badly, insult students and have a bad influence. If a crime is constituted, criminal responsibility shall be investigated according to law.
3. Persons who are directly responsible for the safety of school buildings or educational and teaching facilities of schools and other educational institutions. China's education law stipulates that the establishment of schools and other educational institutions must have teaching places, facilities and equipment that meet the prescribed standards. "If school buildings or educational and teaching facilities are in danger and no measures are taken, resulting in casualties or heavy property losses, the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility according to law." The criminal subject of the crime of major liability accident in educational facilities stipulated in Article 138 of the current criminal law is the person who is directly responsible for the safety of school buildings and educational and teaching facilities, including: leaders and staff in charge of education in the government; The main person in charge of the administrative department of education and schools and other educational institutions; Personnel who have specific management responsibilities for the safety of school buildings or educational and teaching facilities, such as teachers and staff of schools and other educational institutions, are mainly those who have the obligation to inspect, repair and update school buildings or educational and teaching facilities, and those who have the obligation to take timely measures or report on the safety of school buildings or educational and teaching facilities; The organizers of private schools, that is, the heads of some enterprises, institutions, social organizations and other social organizations and other directly responsible personnel, as well as the main leaders of some village committees, etc. [2].
(B) the content of educational criminal legal relations
Criminal law norms are legal norms that stipulate crime and criminal responsibility. Criminal legal relationship is the relationship between the state and criminals regulated by criminal law norms. In the criminal legal relationship, the state determines the crime by exercising the power of punishment, and then measures the criminal responsibility of the offender. Criminals bear criminal responsibility, accept criminal evaluation and bear criminal punishment for their own criminal acts. In this way, a criminal legal relationship is formed between the state and the criminals, with the content of punishment right and criminal responsibility. Among them, "the power of punishment is an integral part of national sovereignty, a kind of national power and a kind of national coercive force imposed on criminals;" Regardless of whether the offender agrees or not, he must accept this coercion. " [3] As an important power in criminal entities, the power of punishment is subject to both the state and criminals. However, the exercise of the right of punishment by the state should be restricted. The "restriction" here means that the state's exercise of punishment right is restricted by law, which is essentially the state's exercise of punishment right according to law. Criminal responsibility is a kind of legal responsibility. Because crime is a kind of behavior with serious social harm, the criminal responsibility borne by criminals is the most severe legal responsibility. The criminal responsibility of criminals is limited, and the "limit" here means to bear criminal responsibility within the scope and degree stipulated by law. Therefore, "the content of criminal legal relationship is that the state exercises the right of punishment to a limited extent, and the actor bears criminal responsibility to a limited extent." " [4 ]
Based on the above principles, the content of educational criminal legal relationship is that the state determines the crime of students, teachers and other criminals and decides the punishment according to the provisions of China's current criminal law and education law. As criminals, students, teachers, etc. Should bear the corresponding criminal responsibility to the state within the scope and extent prescribed by law. Taking Ma Jiajue as an example, China's education law stipulates that students have the obligation to abide by laws and regulations. Article 232 of the Criminal Law stipulates that whoever intentionally kills someone shall be sentenced to death, life imprisonment or fixed-term imprisonment of 10 years or more; If the circumstances are minor, they shall be sentenced to fixed-term imprisonment of not less than 3 years 10 years. The legal fact that Ma Jiajue, a student of Yunnan University, killed four students with a knife on campus has formed an educational criminal legal relationship with the state. According to the law, the state has the right to determine that Ma Jiajue's behavior constitutes the crime of intentional homicide, and impose corresponding punishment on him. As a criminal, Ma Jiajue bears the criminal responsibility of being sentenced to death to the country according to law.
(C) the object of educational criminal legal relationship
According to the general theory of jurisprudence in China, the object of legal relationship is the object of rights and obligations between the subjects of legal relationship, including material and intangible wealth and behavior. Objectively speaking, this definition of the object of legal relationship is mainly from the perspective of civil legal relationship. Once it goes beyond the field of civil law and enters the field of criminal law, it shows the limitations of this theory. [4] To clarify the object of educational criminal legal relationship, we must first clarify the following concepts: the object of criminal behavior, the object of penalty discretion and the object of criminal legal relationship.
The object of criminal behavior, called criminal object in the theory of criminal law in our country, refers to the specific people and things that are directly affected or influenced by criminal behavior as the main body of social relations and material performance. For example, victims of murder, injury and rape, cash and goods in robbery, theft and fraud. The object of penalty discretion is the object pointed by the people's court in the process of sentencing, that is, criminal acts and criminal actors who bear criminal responsibility from them. At present, there are different opinions about the object of criminal legal relationship, among which the representative view is "penalty theory", that is, the object of criminal legal relationship is penalty; The theory of rights and obligations holds that the object of criminal legal relationship is the rights and obligations of the subject; The theory of crime and criminal responsibility holds that the object of criminal legal relationship is the constitution of crime and criminal responsibility; "Carrier theory" [4] holds that the object of criminal legal relationship is the carrier of some interests of criminals. The author agrees with the "carrier theory". That is, "the object of criminal legal relationship is the object of the state's exercise of restricted penalty power and the criminal's limited criminal responsibility-the carrier of the criminal's partial interests." Among them, "interest carrier" refers to the tangible or intangible things to which the interests of criminals depend. The so-called "part" refers to the part of a specific criminal event that is suitable for the specific criminal situation of the offender. The state exercises the limited penalty power to make the offender bear limited criminal responsibility.
According to the viewpoint of "carrier theory" and the particularity of educational criminal legal relationship, we think that the object of educational criminal legal relationship is the life, freedom, property and qualification of students and teachers who are criminals in campus criminal cases. Among them, life refers to the life of a natural person in the legal sense. Freedom is a state in which citizens act and think according to their own will and interests within the scope prescribed by law, and are not bound, controlled or hindered. Property refers to the property legally owned by citizens and not used for crime. Qualifications are the conditions or identities that citizens should have to engage in certain activities.
Third, improve the legal relief system of campus criminal cases.
Through the above analysis of the legal relationship of campus criminal cases, we can see that the most important feature of the legal relationship of educational criminal cases is the unequal status of the two parties. On one side is a "powerful country" and on the other side is an "isolated criminal". Therefore, the legal relief in campus criminal cases discussed in this paper is mainly aimed at the rights relief of criminals and victims. The author believes that it is necessary to improve the legal relief system from the following aspects.
(A) the establishment of mental damage compensation system
Mental damage is a kind of non-property damage, which is mainly manifested in the degradation of personal dignity, the decline of reputation, mental pain and anxiety, and other damage. [3] As people pay more and more attention to spiritual rights, obtaining compensation for mental damage should be the best legal remedy. Judging from the legislation of various countries in the world, the criminal procedure laws of most civil law countries stipulate that the scope of the right of claim in incidental civil action includes all losses caused by criminal acts, including material losses, physical losses and mental losses. For example, the French Criminal Procedure Law stipulates: "Civil litigation can include all material, physical and mental losses caused by the crime that is the object of prosecution." [5] Italy also stipulates that victims of criminal acts have the right to claim compensation for compensable losses (including property and non-property losses) caused by criminal acts [6]. However, compensation for mental damage in criminal cases in China is still a "forbidden area" of the law. In campus criminal cases, such as teachers raping students and teachers' corporal punishment causing death. Although the defendant has been given corresponding criminal punishment, the mental injury suffered by the student victim will never heal. Because this kind of mental damage is often greater than the damage of civil tort. However, in order to obtain compensation for mental damage, some victims of campus criminal cases only file simple civil lawsuits, thus conniving at criminals. Therefore, it is urgent to establish a compensation system for mental damage in campus criminal cases.
The establishment of compensation system for mental damage in campus criminal cases should include substantive law and procedural law. In terms of substantive law, we should clearly define the connotation, scope, principles and compensation standards of mental damage compensation for campus criminal infringement. If the victim really can't get compensation for mental damage from the defendant, we can consider establishing a national compensation system to make up for the defendant's lack of compensation ability and ensure that the victim can get corresponding relief. In terms of procedural law, it can be determined that the victims of campus criminal cases can choose between incidental civil litigation and separate civil litigation, either incidental criminal civil litigation or separate civil litigation.
Expand the judicial application of non-custodial penalty
Non-imprisonment punishment refers to the general name of the types of punishment that are not executed in closed places such as prisons, do not deprive the person being executed of his personal freedom, and have a lighter punishment, including five kinds of punishments such as control, fine and confiscation of property stipulated in the current criminal law of our country. Non-imprisonment punishment is relative to imprisonment punishment (criminal detention, fixed-term imprisonment, life imprisonment and death penalty). Non-imprisonment punishment is adopted by most western modern countries ruled by law because it embodies the humanity and modesty of punishment and meets the economic needs of punishment. The United Nations Standard Minimum Rules for Juvenile Justice stipulates: "The competent authorities should be allowed to take various measures to make them flexible, so as to avoid imprisonment to the maximum extent." However, for a long time, the application of non-imprisonment punishment in China has been in an inefficient state. Considering the particularity of campus criminal cases, the author suggests expanding the judicial application of non-custodial punishment in campus criminal cases. For teachers and adult students who commit crimes, if the circumstances of the crime are minor, the subjective malignancy is not great, and the social harm is small, and it will not harm the society after education and reform, non-imprisonment punishment can be applied. According to the provisions of the Law of People's Republic of China (PRC) on the Prevention of Juvenile Delinquency, criminal responsibility shall be investigated for minors who commit crimes, and the policy of education, probation and salvation shall be implemented, and the principle of giving priority to education, supplemented by punishment and giving priority to education protection shall be adhered to. Non-custodial punishment shall be applied to juvenile students who meet the above conditions for committing crimes.
(C) the application of plea bargaining system to solve juvenile student crime cases
Plea bargaining refers to the activities in which the prosecutor and the defense lawyer negotiate the conviction and sentencing of the defendant before the trial, and the prosecutor exchanges guilty plea by reducing the charges or making suggestions to the judge to reduce the sentencing [7]. Plea bargaining is widely used in western countries, especially in Britain and America. At present, there is no legal basis for plea bargaining in China, and procuratorial organs cannot apply "plea bargaining" when handling cases.
In my opinion, it is a good method to apply plea bargaining system to solve juvenile campus crime cases. This is not only the need to adapt to the development of the international situation, but also the need for China to fulfill the United Nations Standard Minimum Rules for Juvenile Justice (Beijing Rules), Tokyo Rules and other international treaties. Because minors' physical and mental development is not yet fully mature, and their knowledge and experience are limited, most minor students commit crimes sporadically and subjectively, lacking the ability to judge right and wrong. Therefore, the application of plea bargaining system to deal with such cases can make the subject of juvenile delinquency misunderstand and learn lessons, which can not only achieve the purpose of preventing their crimes, but also quickly restore the damaged social relations. At the same time, it shortens the litigation time and avoids the psychological obstacles of minors' personality development. Applying plea bargaining system to deal with juvenile criminal cases is more humane than court trial, conforms to the physical and mental characteristics of minors, can reduce the psychological burden and fear of juvenile defendants, and can consciously review their behavior and accept education and reform in an understanding atmosphere. The scope of plea bargaining system for juvenile students' campus criminal cases can consider the maturity of juvenile students themselves. Combined with the relevant provisions of the current criminal law of our country on the age of criminal responsibility, the plea bargaining system can be applied to the criminal cases of underage students who have reached the age of 65,438+04 but have not reached the age of 65,438+06, but not to recidivists and recidivists. Plea bargaining system is not applicable to criminal cases of students who have reached the age of 16 but have not reached the age of 18. If the criminal means are cruel, subjective and vicious, and the social harm is serious, other cases with relatively less social harm can be solved through plea bargaining. The application of plea bargaining system must be based on the voluntary choice of the defendant and his legal representative, and at the same time, a procuratorial control system must be established to protect the interests of the victims [8].
In addition, in the process of handling campus criminal cases, judicial organs should fully guarantee teachers and students to exercise their litigation rights, and carry out targeted legal education according to the characteristics of campus criminal cases. Before the judgment of the people's court takes effect, teachers or students who have been subjected to criminal compulsory measures shall not be disqualified from teaching or their school status. Students or teachers who are exempted from criminal punishment according to law, sentenced to non-imprisonment punishment, suspended sentence, parole or whose punishment has been completed enjoy the same rights as other students or teachers in terms of resumption of studies, further studies and employment, and no unit or individual may discriminate against them.