First, legal contact.
Article 274 of the Criminal Law of People's Republic of China (PRC) stipulates that whoever extorts or extorts public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
Second, the concept
The crime of extortion refers to the act of extorting public or private property by threatening or coercing the victim for the purpose of illegal possession.
Third, the constitution of crime.
(A) the object elements
The object of this crime is a complex object, which not only infringes on the ownership of public and private property, but also harms the personal rights or other rights and interests of others. This is one of the remarkable characteristics that distinguish this crime from theft and fraud. The object of this crime is public and private property.
(b) objective factors
Objectively, this crime shows that the perpetrator forces the victim to hand over his property by means of threats, extortion and intimidation.
Threat refers to forcing the victim to dispose of the property with evil notice, that is, if he does not dispose of the property according to the requirements of the actor, he will be infringed by evil at some time in the future. There are no restrictions on the types of threats, including threats to the life, personal freedom and reputation of victims and their relatives. Threatening behavior only needs to make others feel scared, and does not require that the victim actually feel scared. It does not matter whether the content of the threat is realized by the actor himself or by others. The realization of threatening content does not require it to be illegal. For example, it is legal for the perpetrator to report to the judicial organs when he knows the facts of other people's crimes, but if the perpetrator extorts property by threatening to report to the judicial organs, it also belongs to the crime of extortion. There is no limit to the way of threat, which can be express or implied; You can use words and gestures; The victim can be notified directly or through a third party. The result of the threat is to make the victim feel scared, and then dispose of a large amount of his property in order to protect his greater interests, and then the actor obtains the property. The victim's disposal of property is not limited to the direct delivery of property by the victim, but also allows the actor to obtain property out of fear, or it can be delivered by a third person who has a special relationship with the victim based on the victim's intention to dispose of property. If the perpetrator extorts a small amount of public or private property, it will not be punished as a crime.
Extortion is a crime only if the amount is large. If the amount is huge or there are other serious circumstances, it is an aggravating circumstance of this crime. The so-called serious circumstances mainly refer to: recidivists of extortion; A recidivist of extortion; Don't know the criminal facts of others, take the opportunity to extort money; Taking advantage of the danger of others to extort money; Pretending to be a state functionary for extortion; Blackmailing public or private property with a huge amount; The circumstances of extortion are particularly bad, resulting in the victim's mental disorder, suicide or other serious consequences; Wait a minute.
(3) Main elements
The subject of this crime is the general subject. Any natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.
(4) Subjective factors
Subjectively, this crime shows direct intention and must have the purpose of illegally extorting other people's property. If the actor does not have this purpose, or the purpose of asking for property is not illegal, for example, the creditor uses threatening language to repay the overdue debt and urges the debtor to speed up the repayment, it does not constitute the crime of extortion.
Four. identify
(a) The boundary between completed crime and attempted crime
The perpetrator illegally extorts other people's property by threats or coercion, which constitutes the accomplished crime of extortion. If the perpetrator only used threats or intimidation, the victim did not feel fear, so he did not hand over his property; Or the victim is afraid, but he doesn't hand over his property, which is an attempted extortion.
(2) The boundary between this crime and robbery is only literal, and "threat" is not only one of the means of robbery, but also the basic behavior of extortion. However, the specific connotation of the threat is different: (1) From the perspective of threat mode, the threat of robbery is issued directly in front of the victim; Blackmail threats can be made in person, or conveyed by letter, telephone or a third party. (2) The threat of robbery is manifested as the threat of realizing the content of the threat on the spot without handing over the property; The threat of extortion generally shows that if the requirements are not met, the content of the threat will be realized at some time in the future. (3) From the content of the threat, the threat of robbery is the threat of personal injury such as murder and injury; The threat of extortion is broader, including personal injury or damage to property and reputation. (4) The crime of robbery is to obtain property on the spot by threatening means from the time when the property is illegally obtained; Blackmail can be obtained on the spot or afterwards. It can be seen that the threats in these two crimes are both different and related. If the facts of the case meet the above characteristics of robbery threat, it shall be punished as robbery. If one of them does not meet the requirements, it shall be punished as extortion.
(3) The boundary between this crime and the crime of swindling and cheating.
In practice, some criminals often pretend to be public security personnel, customs inspectors, industrial and commercial administrative personnel, tax collectors and other state workers to extort money from others, which seems to be the same as the crime of swindling and cheating, but actually constitutes the crime of extortion. The main differences between these two crimes are:
1, different behavior characteristics. The crime of swindling and cheating is characterized by cheating and completely blinding the victim with false appearances; Although extortion may also contain elements of deception, it is characterized by threats or threats.
2. The victim's psychological state of handing over property is different. In the crime of swindling and cheating, the victim "voluntarily" surrenders his property or transfers other legitimate rights and interests after being cheated; Extortion caused the victim's mental fear, and he was forced to hand over his property or transfer other property interests out of helplessness.
3. The scope of obtaining benefits is different. The interests of the crime of swindling and cheating are very wide, including both property interests and non-property interests, such as defrauding a certain title or position, political treatment or honorary title. The crime of extortion is limited to property.
4. The objects of infringement are different. The object of the crime of swindling and cheating is the prestige of state organs and social management order; The object of extortion is the ownership of public and private property, citizens' personal rights and other legitimate rights and interests.
Verb (short for verb) punishment
Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
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Article 128 Whoever commits the crime of illegally possessing or hiding guns and ammunition, illegally renting or lending guns, and violates the regulations on gun control, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance; 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.
Persons who are legally equipped with guns for official use illegally rent or lend guns shall be punished in accordance with the provisions of the preceding paragraph.
Personnel who are legally equipped with guns illegally rent or lend guns, thus causing serious consequences, shall be punished in accordance with the provisions of the first paragraph.
Where a unit commits the crimes mentioned in the second and third paragraphs, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the first paragraph.
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Manufacturing, Trading and Transportation of Firearms, Ammunition and Explosives.
In order to severely punish illegal manufacturing, trading, transporting firearms, ammunition, explosives and other criminal activities in accordance with the law, according to the relevant provisions of the Criminal Law, some issues concerning the specific application of law in the trial of such cases are explained as follows:
Article 1 An individual or unit that illegally manufactures, buys, sells, transports, mails or stores guns, ammunition and explosives shall be convicted and punished for the crime of illegally manufacturing, buying, selling, transporting, mailing or storing guns, ammunition and explosives in accordance with the provisions of the first paragraph of Article 125 of the Criminal Law:
(1) illegally manufacturing, trading, transporting, mailing or storing more than one military gun;
(2) Illegally manufacturing, trading, transporting, mailing or storing one or more non-military guns firing gunpowder bullets or two or more other non-military guns powered by compressed gas;
(3) Illegally manufacturing, trading, transporting, mailing or storing more than 10 military bullets, more than 500 air gun lead bullets or more than 100 other non-military bullets;
(4) illegally manufacturing, trading, transporting, mailing or storing more than one Grenade;
(5) illegally manufacturing, trading, transporting, mailing or storing explosive devices;
(6) illegally manufacturing, trading, transporting, mailing or storing explosives, propellants, black powder of more than one kilogram or initiating explosive device of more than three kilograms, detonators of more than 30 pieces or fuses and detonating cords of more than 30 meters;
(7) Units qualified to produce explosives fail to produce according to the prescribed varieties, or units qualified to sell and use explosives exceed the quota to buy and sell explosives, propellants, black powder of more than 10 kilograms or initiating explosive devices of more than 30 kilograms, detonators of more than 300 pieces or fuses and detonating cords of more than 300 meters;
(eight) repeatedly illegally manufacturing, trading, transporting, mailing and storing ammunition and explosives;
(nine) although it does not meet the above minimum quantity standard, it has other bad circumstances such as causing serious consequences.
Whoever introduces the buying and selling of guns, ammunition and explosives shall be punished as the * * * offender of the crime of buying and selling guns, ammunition and explosives.
Article 2 Whoever illegally manufactures, sells, transports, mails or stores guns, ammunition or explosives in any of the following circumstances belongs to "serious circumstances" as stipulated in the first paragraph of Article 125 of the Criminal Law:
(1) The quantity of illegally manufacturing, trading, transporting, mailing or storing guns, ammunition and explosives is more than five times the minimum quantity standard stipulated in Items (1), (2), (3), (6) and (7) of Article 1 of this Interpretation;
(2) illegally manufacturing, trading, transporting, mailing or storing more than three grenades;
(3) illegally manufacturing, buying, selling, transporting, mailing or storing explosive devices, which is seriously harmful;
(4) Having reached the minimum quantity standard stipulated in Article 1 of this Interpretation, and having other bad circumstances such as causing serious consequences.
Article 3 If an enterprise designated or determined to manufacture or sell guns according to law commits one of the following acts as stipulated in Article 126 of the Criminal Law, it shall be convicted and punished for the crime of illegally manufacturing or selling guns:
(1) illegally manufacturing more than five guns;
(2) Selling more than two guns in violation of regulations;
(three) although it does not meet the above minimum quantity standard, it has other bad circumstances such as causing serious consequences.
Under any of the following circumstances, it belongs to "serious circumstances" as stipulated in Article 126 of the Criminal Law:
(1) illegally manufacturing more than 20 guns;
(2) illegally selling more than ten guns;
(3) Having reached the minimum quantity standard stipulated in the first paragraph of this article, and having other bad circumstances such as causing serious consequences.
Under any of the following circumstances, it is "especially serious" as stipulated in Article 126 of the Criminal Law:
(1) illegally manufacturing more than 50 guns;
(2) illegally selling more than 30 guns;
(3) Having reached the minimum quantity standard stipulated in the second paragraph of this article, and having other bad circumstances such as causing serious consequences.
Article 4 Whoever steals or seizes guns, ammunition or explosives is convicted and punished for the crime of stealing or seizing guns, ammunition or explosives in accordance with the provisions of the first paragraph of Article 127 of the Criminal Law:
(1) Stealing or robbing one or more non-military guns or two or more other non-military guns powered by compressed gas;
(2) Stealing or robbing more than 10 military bullets, more than 500 air gun lead bullets or more than 100 other non-military bullets;
(3) stealing or robbing an explosive device;
(4) Stealing or robbing explosives, propellants, black powder 1 kg or more or initiating explosive devices (3 kg or more), detonators (30 pieces or more) or fuses and detonating cords (30 meters or more);
(five) although it does not meet the above minimum quantity standard, it has other bad circumstances such as causing serious consequences.
Under any of the following circumstances, it belongs to the "serious circumstances" stipulated in the first paragraph of Article 127 of the Criminal Law:
(1) The number of guns, ammunition and explosives stolen or robbed exceeds five times the minimum quantity standard stipulated in the first paragraph of this article;
(2) Stealing or robbing military guns;
(3) stealing or robbing grenades;
(four) theft, robbery of explosive devices, serious harm;
(5) Having reached the minimum quantity standard stipulated in the first paragraph of this article, and having other bad circumstances such as causing serious consequences.
Article 5 Anyone who has any of the following circumstances shall be convicted and punished for the crime of illegal possession and possession of guns and ammunition in accordance with the provisions of the first paragraph of Article 128 of the Criminal Law:
(a) illegal possession and possession of military guns;
(2) Illegally holding or hiding one non-military gun that fires gunpowder bullets or two or more other non-military guns powered by compressed gas;
(3) illegally holding or hiding more than 20 military bullets, more than 1,000 air gun lead bullets or more than 200 other non-military bullets;
(four) illegal possession and possession of more than one Grenade;
(five) illegal possession and possession of ammunition, resulting in casualties and property losses.
Under any of the following circumstances, it belongs to the "serious circumstances" stipulated in the first paragraph of Article 128 of the Criminal Law:
(a) illegal possession and possession of two or more military guns;
(2) Illegally holding or hiding two or more non-military guns that fire bullets with gunpowder or five or more other non-military guns that use compressed gas as power;
(3) illegally holding or hiding more than 100 military bullets, more than 5,000 air gun lead bullets or more than 1,000 other non-military bullets;
(four) illegal possession, possession of more than three grenades;
(5) Having reached the minimum quantity standard stipulated in the first paragraph of this article, and having other bad circumstances such as causing serious consequences.
Article 6 Illegal carrying of guns, ammunition and explosives into public places or public transport means, which endangers public safety, is a "serious case" as stipulated in Article 130 of the Criminal Law in any of the following circumstances:
(1) Carrying guns or grenades;
(2) Carrying an explosive device;
(3) Carrying more than 500 grams of explosives, propellant and black powder, or more than initiating explosive device 1 kg, more than 20 detonators, or more than 20 meters of fuse and detonating cord;
(4) Carrying ammunition and explosives that explode and burn in public places or public transport, but have not caused serious consequences;
(five) there are other serious circumstances.
If the perpetrator illegally carries the explosives specified in Item (3) of the first paragraph of this article into a public place or public transport and refuses to hand them over, he shall be convicted and punished in accordance with the provisions of Article 130 of the Criminal Law; If the quantity carried reaches the minimum quantity standard and can voluntarily and completely surrender, it may not be deemed as a crime.
Article 7 Whoever illegally manufactures, buys, sells, transports, mails, stores, steals, robs, holds, conceals or carries complete sets of gun parts shall be counted by the corresponding number of guns; Every 30 pieces of non-complete gun parts are counted as one set of gun parts.
Article 8 "Illegal storage" as stipulated in the first paragraph of Article 125 of the Criminal Law refers to the act of storing guns, ammunition and explosives for others knowing that they are illegally manufactured, traded, transported or mailed.
The term "illegal possession" as stipulated in the first paragraph of Article 128 of the Criminal Law refers to the act of unauthorized possession of guns and ammunition by persons who do not meet the conditions for equipping and configuring guns and ammunition, in violation of the provisions of laws and regulations on gun control.
"Possession" as stipulated in the first paragraph of Article 128 of the Criminal Law refers to the act of a person who is equipped and equipped with guns and ammunition according to law, and refuses to hand over the equipped and equipped guns and ammunition in violation of the provisions of laws and regulations on gun control after the conditions for equipping and equipping guns and ammunition are eliminated.
Article 9 Whoever illegally manufactures, buys, sells, transports, mails, stores, steals, robs, holds or conceals other ammunition and explosives shall be punished with reference to the conviction and sentencing standards stipulated in this Interpretation.
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