According to the current law, he is not an accomplice under duress, but he can be recognized as an accomplice according to his role in the same crime.
Please explain the meaning of possession.
Theft is aimed at possession, which is a concept in civil law. Theft is generally to obtain ownership, but possession in civil law can be without changing ownership.
3. What's the difference between the principal offender and the ringleader?
The principal offender is a criminal who plays a major role in the same crime and overlaps with the concept of the ringleader.
4. What is an accomplice?
Yuan, a crime+b crime = c crime, is a joint offender. There is no typical accomplice in our criminal law like the crime of rape and murder in Japanese criminal law.
5. Did the perpetrator take the initiative to restore the original state after destroying the traffic facilities without causing any losses?
Liu Runtao, the crime of destroying traffic facilities is both an act crime and a dangerous crime. As long as its behavior causes danger rather than actual results, it can constitute a crime, that is, the crime is established when the behavior is completed, and the crime can only be suspended before the crime is established (that is, before the attempted stage). This situation can not be regarded as suspension in criminal law theory, but only as a sign of repentance. However, in practice, some people think that active treatment after poisoning others has not caused the suspension of the consequences.
6. Excuse me, teacher, in addition to the example of aggravated consequential offense cited in the textbook, can you give another example about aggravated consequential offense?
The second paragraph of Article 238 of the Criminal Law stipulates that illegal detention causes serious injury or death, which is an aggravated crime.
7. Excuse me, Mr. Chen, Zhang San and Li Siliang had a quarrel. Zhang Sanyi punched Li Si in the chest, causing Li Si to die. After investigation, Li Siyuan had a tumor in the chest blood vessels, and Zhang Sanyi's fist caused the tumor to rupture. Does Zhang San's behavior constitute a crime?
If Zhang San doesn't know that Li Si has a tumor in his chest, I don't think it constitutes a crime/
8. Does a legally prescribed punishment for a crime only refer to the criminal code?
Mainly refers to the criminal code, separate criminal law and subsidiary criminal law.
9. What's the difference between taking advantage of one's job and taking advantage of one's position?
Taking advantage of the convenience of work, work can be multifaceted, which is a non-legal concept; However, position refers to the convenience associated with his position, which is generally related to official business in the crime of corruption and bribery, and refers to the functions and responsibilities of handling, managing and guiding the work related to his position in the crime of accepting bribes by company employees.
10, what is the statutory punishment? What is the crime of discretion?
Legally speaking, one crime is several crimes, but the law stipulates that one crime is a crime, and one crime is an index crime, but the law does not stipulate that one crime is a crime, but it is treated as one crime in practice.
1 1. Does the legal representative of the unit have a dual identity or does it not necessarily constitute a crime?
The crime committed by the legal representative of a unit should be based on the constitution of the unit crime. In this sense, it is not a personal crime.
12, can it be expressed as detention in civil judgment?
Different in nature, one is punishment, and the other is civil or administrative or criminal compulsory measures.
13. What is the behavior of someone taking out the money on the stolen deposit slip with a forged ID card?
Should constitute theft.
14. What is the difference between causality in criminal law and causality in civil law?
Causality in criminal law is strict, which is generally considered as direct causality, while causality in civil law is generalized, that is, the so-called conditional causality.
15. Generally speaking, the victims in private prosecution cases are much less hurt than those in public prosecution cases. Is it unfair that the law stipulates this?
It is precisely because the victim was slightly injured that the law stipulates that it is a private prosecution case.
16. What is the relationship between the purpose of punishment and the general principles of criminal law?
Generally speaking, the purpose of punishment is general prevention and special prevention, while the general principle of criminal law is a public rational rule that criminal law recognizes crime and is in punishment, which means a legally prescribed punishment for a crime, a balanced crime and punishment, and equality before criminal law.
17, I would like to ask why the penalty right is not stipulated in the constitution, but what is the basis for dividing it into the system in general discussion?
China's constitution does not stipulate the right of punishment, but some countries' constitutions do. The basis of differentiated sentencing system is theory, not law.
18, why is the punishment of the person directly responsible in the unit crime far heavier than that of the individual crime?
In fact, compared with natural persons who commit the same crime, the punishment of unit members can only be the same or lighter, not heavier.
19, can you tell me about the definition of a joint-stock company in China?
A wholly state-owned enterprise is a state-owned company, and a joint-stock company can only be regarded as a state-owned company if all its shareholders are state-owned companies.
20. Can you tell me the difference between robbery and robbery?
Robbery is to obtain property by violence, and robbery is not by violence.
2 1. Should the following situations be regarded as crime completion or crime suspension? Please advise: someone put rat poison in the well in the village, and later thought it would poison many people, so he went back to the well and told the villagers who came to fetch water that the well water was poisonous.
It should be regarded as the suspension of the crime, and the act has been completed, but there is a gap between the result and the act, and it should be regarded as suspension before the result occurs. See the definition of suspension.
22. If a person commits several crimes, he shall be punished for several crimes. Can probation be applied?
If the combined punishment meets the conditions for probation, it may be suspended.
23, the circumstances of sentencing discretion, whether can be understood as the judge's discretion.
It can be said, but in practice, there is little room for these situations in the court's provisions on punishment.
24. When the Intermediate People's Court sent a letter to the lower court to hear a case of the same crime, it found that a defendant previously sentenced by the lower court had made a very light judgment and asked for a retrial. Should the prosecutor of the original trial be notified to attend the trial? Which departments will be sent after the judgment takes effect?
The prosecutor of the original trial shall be notified to attend the trial, and the scope of sentencing shall be the same as that of the original trial.
25. What's the difference between wartime robbery and peacetime robbery? Do you have different beliefs?
There is no difference between conviction and sentencing.
26. Who is the person who has the obligation of omission?
Refers to people with specific obligations, which can be divided into several types: first, people with legal obligations, such as the police; 2. People who have obligations to previous behaviors, such as teachers who take their children swimming; 3. Obligations required by the post or business; 4. Have obligations based on legal acts, such as those entrusted by the obligor.
27. Are employees of a Sino-foreign joint venture whose shares are relatively large (e.g. 5 1%) held by the Chinese side, suspected of corruption or misappropriation, who take advantage of their positions to occupy huge funds of the company and fail to pay them back?
Crime of embezzlement by post.
28. What is the limit of self-defense?
Don't obviously exceed the necessary limit and cause heavy losses. This needs to be specifically stated.
29. What are the charges for determining whether the amount constitutes a crime?
There are many such crimes, which are called amount crimes. You can refer to the judicial interpretation of the amount of crime in the Supreme People's Court or the procuratorate
30. Some charges in the new criminal law are verbose and not concise enough, which are not as simple as the original crimes of theft and robbery. I don't know what the foreign charges are. It's not a crime explained by nouns, is it
Some foreign countries are concise and some are not, so we can't generalize.
3 1, the husband and wife accidentally injured each other, and the injured party sued. How to determine the nature?
There is generally no conviction.
32. Does the principle of retroactivity of criminal law apply to every article of criminal law? For example, someone committed a theft in 1995, amounting to 9000 yuan. At that time, the public security organ filed a case but did not take any compulsory measures. Should we sue?
Of course, it applies to every article, but for specific cases, it is necessary to analyze the specific situation.
In textbooks, recidivism is mentioned as an independent crime in order to better combat this kind of crime. What are the situations in which recidivism is defined as an independent crime in China's criminal law?
Mr. Yu Haiyan, there is habitual theft in the 79 Criminal Law, but it is gone now. However, in the crime of theft and gambling, it can be said that recidivism (mostly crime) can constitute a crime, which can be said to be a manifestation.
34. Does strike hard violate the principle of legality?
Strike hard cannot violate the principle of legally prescribed punishment for a crime, and strike hard is strictly within the scope of legally prescribed punishment for a crime.
35. I have seen such a case, saying that A owed money to B, and B went to A's house to ask for it, but A didn't give it. B forcibly snatched a sheep from A's house and committed the crime of looting. What if b consciously thinks that this sheep owes itself a debt? I don't think he is harmful to society either.
If the circumstances are not particularly serious, this situation generally does not constitute a crime. But this way of debt collection is illegal.
36. Is there a direct causal relationship between unqualified vehicle brakes and the death result of traffic accident crime?
The direct cause of this traffic accident is mechanical failure, not the driver's fault. Therefore, drivers cannot be held accountable for traffic accidents.
37. An unemployed man, A, was walking in the street wearing a privately purchased police uniform and holding a pistol. Seeing that B was robbing with a knife, he shouted to B: Stop it, I'm in the police, put the knife down. B rushed to A with a knife, and A shot B on the spot with a pistol. Ask whether A's behavior constitutes a crime. If so, what is the crime?
Stopping a crime should be an act of self-defense rather than a crime, but he is suspected of illegal possession of a gun when he walks in the street with a pistol.
38. What are the restrictive clauses?
The proviso is an expression that begins with but in legal provisions, which generally refers to the proviso in the concept of crime in Article 13 of the Criminal Law.
39. There is such a problem. One day, someone wanted to kill someone, but halfway through, he gave up the idea of killing. In fact, a B was on a business trip that day, and asked if A constituted a crime preparation, or did he stop?
It constitutes a suspension of the preparatory stage.
40. The subjective malignancy of indirect intention is not as good as that of direct intention, and should be treated differently when sentencing. Are there any rules in this regard?
Without this provision, this is a theoretical problem.
4 1. For the same crime, the punishment for the main responsible person is heavier than that for individual crimes. Why?
Compared with natural person crime, the responsibility of the person directly responsible for unit crime is lighter and the same. The lighter reasons are: first, the offender is a unit, not an individual, that is, the unit should bear the responsibility collectively, that is, the subject of crime and the subject of punishment are all one person in the unit. At present, the double penalty system is widely implemented, and the unit bears the responsibility of fine. Moreover, in the case of unit crime, the person directly responsible is less subjective and vicious, because he is seeking benefits for the unit.
42. How to understand the principle of non-aggravated punishment on appeal has always been incomprehensible. Ask the teacher for advice. If it is a retrial case, is it subject to this restriction?
There is no appeal in the retrial, so there is no problem of not adding punishment to the appeal.
43. Does the criminal report himself not count as surrender?
Surrender must also meet the conditions of surrender in order to constitute surrender.
44. What is indirect intention and negligence?
Indirect intention refers to the psychological attitude of the actor who knows that his behavior may have the result of endangering society and deliberately lets it go, resulting in such a result. Indirect intentional cognitive factors mean that the actor realizes that his behavior may cause harm to society, but does not include realizing that his behavior will inevitably cause harm to society. Because laissez-faire is based on the premise that the actor realizes that the harmful result may or may not happen, if the actor has realized that his behavior will inevitably produce harmful results and is determined to implement it, there is no possibility of laissez-faire, and his subjective will can only be direct intention to hope that the result will happen. The indirect intentional will factor means that the actor does not want or actively pursue the occurrence of harmful results, but adopts a laissez-faire attitude, that is, whether it happens or not, it will not go against his will. Because of this, the actual occurrence of harmful results is the necessary condition for determining indirect intention. If there is no harmful result, it cannot be considered that the actor has a psychological attitude of letting the harmful result happen. Indirect intention is generally manifested in the following three situations in practice: first, the actor indulges in another harmful result in pursuit of a certain criminal purpose, such as A indulging in burning B's house; Second, the actor let the harmful results happen in pursuit of non-criminal purposes. For example, in order to shoot rabbits, A shot a B to death regardless of a B who might accidentally pick fruits nearby; Third, in sudden crimes, people recklessly let some serious harmful results happen. For example, A was caught red-handed by B because of illegal crime. In order to escape, A took out a dagger and stabbed B, causing B's heart to be pierced and died. In the above three cases, the actor has an indirect and intentional psychological attitude towards the death of the victim. Negligent negligence refers to the psychological attitude that the actor should have foreseen the possible consequences of his actions that will harm society, but failed to foresee them due to negligence, which led to such consequences. Negligence has the following two characteristics: (1) The actor did not foresee the possible harmful consequences of his behavior. Negligence is a kind of ignorance, which shows that the actor did not think that his behavior would harm society when he carried out his behavior. Did not foresee the possible harmful results, or the actor only realized that the behavior might produce other results but was not harmful to society, or the actor realized the behavior itself but did not foresee the actual results, or the actor did not know the behavior itself and the possible results. Ignorance of harmful consequences is the premise of negligence. (2) The actor should foresee that his behavior may lead to social harm. The so-called foreseeability means that the actor has the ability and obligation to foresee in order to avoid the occurrence of harmful results. It is precisely because the actor's disregard for his due obligations leads to the result of endangering society that it constitutes a criminal negligence and therefore bears criminal responsibility. If the actor has no obligation to foresee the occurrence of harmful results, or it is impossible to foresee the occurrence of harmful results under the circumstances at that time, then no matter what harmful results are caused, they cannot be regarded as negligence and should be investigated for criminal responsibility. What should be foreseen is the unity of foresight obligation and foresight ability. Foresight obligation refers to the responsibility entrusted by law, position, business or society to foresee the harmful social consequences that people may have when they carry out a certain behavior. If the actor is not obliged to foresee the possible harmful consequences when he acts, even if he can foresee them at that time, he cannot be regarded as having foreseen them. Foresight refers to the possibility that the behavior may endanger the social results under the behavioral conditions at that time, according to the situation of the actor. If the actor has no foresight, it is impossible for the law to make him bear criminal responsibility. Theoretically, there are objective criteria and subjective criteria for judging foresight. The objective standard is to judge whether the actor has foresight ability based on the knowledge and ability level of ordinary people. Subjective standard is to determine whether the actor has foresight ability according to his actual knowledge and ability. Because criminal responsibility is a kind of personal responsibility, criminal negligence should be determined according to the actor's own situation, so our criminal law theory generally advocates the use of subjective standards, but objective standards can be used as a reference for judgment.
45. A wanted to kill B, prepared a knife, went to the door of B's house and found a policeman, so he slipped away. What stage of the crime is it?
Preparatory stage of crime.
46. The original intention of criminal law refers to: the law of punishment or the punishment in law?
In China, the two words of criminal law are synonymous in etymology.
47. Please correct your mistake: What determines the severity of social harm on page P 10 of the textbook? The third and last sentence of ... (Line 24 of this book) What does the startup system in .......................................................................................................................................................... mean?
up
48. What is the principle of confiscation of all property?
Generally, it is extremely serious crime, economic crime, etc.
49. Can negligence also constitute imaginative joinder? Can you give me an example?
Negligence can also constitute imaginative joinder of offenses. For example, negligent shooting causes death.
50. Which state organ does the Family Planning Commission and the Maternal and Child Health Station belong to?
The former belongs to state organs, while the latter does not.
5 1, one night, a thief climbed to the window on the second floor of a family to steal something. The awakened person pushed the thief down from the window on the second floor and fell to the ground and died. Q: Does A bear criminal responsibility?
It depends on what psychology he pushed down, according to the specific circumstances of the case.
52. When a criminal suspect fails to rob property for reasons other than his will, should the perpetrator be considered as an attempted crime?
It can be considered as attempted robbery.
53. I'd like to ask, what is the crime of breaking someone else's car glass, attempted theft, but the glass value is 5000 yuan?
It should be an imagination contest, which is generally classified as attempted theft.
54. Is it a recidivist to commit a crime after five years of probation?
Zhang Junwei is not regarded as a fixed-term imprisonment after his probation expires, so he is not a recidivist.
55. How to understand the two regulations of the discipline inspection organ and the compulsory measures of the public security organ?
These two provisions are not mandatory measures.
56. Who enjoys criminal immunity?
According to < Montreal Convention > and other relevant diplomatic and consular regulations, diplomats, consuls, heads of state, heads of government, foreign ministers, and international organizations performing official duties are generally targeted. For relevant provisions, see international law.
57. Should the legal representative bear part of the responsibility after the unit commits a crime?
The punishment of unit crime is divided into double punishment system, which is the general situation, that is, the unit is punished and the individual is punished; A single punishment system only punishes units or individuals,
58. Party A stole from a villa, and then Party B climbed in through the window, so they stole and left. Are Party A and Party B the same thieves? What is the reason?
If there is no premeditation in advance, it should be committed simultaneously, not jointly.
59. Does the person in charge of a certain unit squander public funds to eat and drink, which is more than 100,000 yuan a year, constitute a crime? If so, what is the crime?
In China's criminal law, squandering public funds is not a crime.
60. In selective crimes, such as the crime of buying and selling stolen goods, but the purchase behavior has been completed and the sale behavior has been attempted, is this crime accomplished or attempted?
Acquisition and sale can be convicted separately or at the same time.
6 1, A shot a rabbit in the grass where someone might appear. A didn't find B when shooting, but did it also belong to indirect intentional killing of B?
It depends on the specific situation. If A is in the grass frequented by people (such as public tourist areas) and ignores the lives of others just for rabbits, it is indirect intention; Generally speaking, this is a fault.
62. Is it a crime for an adult woman to steal a baby from a hospital? If so, is it a crime? How to convict and sentence?
Those who steal babies for the purpose of selling constitute crime of trafficking in children.
63. What is the difference between implicated crime and absorbed crime?
Implicated crimes are all absorption crimes, and vice versa.
64. In selective crimes, such as illegal possession and gun possession, there are two defendants at the same time, one is possession and the other is possession. So what charges should these two people be convicted of in the same case?
Possession and possession respectively.
65. How to correctly understand that self-defense does not exceed the necessary limit? For example, what should an ordinary person do in the face of repeated beatings?
Fight hard, those people can't beat him. If others carry weapons, they will be killed.
66. How to understand the obligation and ability to foresee?
The obligation to foresee is generally stipulated by law and judged by objective standards. The ability to foresee is related to the actor himself.
67. Party A and Party B are husband and wife. Party A ran away from home because Party B gave birth to a daughter, and the mother and daughter left it alone for one year. Party A does not sue because Party B has given birth to a daughter for less than one year and does not meet the conditions for divorce. Does Party A constitute abandonment?
If the circumstances are bad and conform to the crime of abandonment, you can be convicted.
68. Public Security Bureau A detained citizen B on the grounds that he was suspected of contract fraud. After the payment and interest were seized, the compulsory measures were changed to bail pending trial. Now the citizen wants to file an administrative lawsuit. Is the behavior of the Public Security Bureau a criminal act or an administrative act?
The behavior of the Public Security Bureau is an administrative behavior.
69. I read a case in the newspaper. A young man in Guangxi married two young women in public on the same day and held a big wedding. The three of them sent letters to invite relatives and friends to attend, which caused a sensation in the local area. There are different opinions on whether this behavior constitutes bigamy, but it directly challenges monogamy. Please talk about your opinion?
Bigamy is a factual bigamy.
70. Villager A put 15 kg of black powder in his yard to dry because his gunpowder was wet. He went out for a while, then closed the gate and hung the lock on the door. Villager b went to his house to look for it, but he couldn't find it. He pressed the cigarette butt on the ground so as not to cause the powder to explode. When he saw this scene, he was frightened and several houses in his neighbor's house were burned down. Is it necessary to bear criminal responsibility?
Party A shall bear criminal responsibility for the crime of negligent explosion, and Party B shall not bear criminal responsibility for not seeing gunpowder.
7 1 Defendant Zhang won the grand prize in order to prove that he thought the sports lottery was fake. He turned over the window in the middle of the night and entered the lottery hall, stealing special colored balls for computer sports lottery in China and put them into use. Defendant Zhang and his defender argued that the subjective and objective aspects of his behavior and the object of infringement did not meet the constitutive requirements of this crime. This kind of behavior is not clearly defined as a crime in the criminal law, so it should be declared innocent. Excuse me: what crime did the defendant commit?
Theoretically, it is controversial. Some people think it is fraud or innocence, but in the end, they are convicted of undermining production and operation. This is a case of Wuhan.
72, the accomplished standard of theft?
It should be said that it is controlled by the press.
73. If the circumstances are obviously minor, if it is confirmed by the court's judgment, whether other organs can give punishments such as reeducation through labor and administrative detention, or whether they can make more than two judgments on one thing, it is really not even an administrative punishment, and then the unit will handle it administratively.
Yes, the court can recommend administrative punishment to other organs.
74. There is no surrender in the concept of surrender. Is it necessary to accept the trial and judgment of the first country?
There is such a legal definition of surrender in the criminal law, but there is no such definition in the criminal law, mainly considering the unfavorable self-defense of criminals. However, the definition of surrender in the current criminal law actually includes this meaning, and the judicial interpretation also includes the theory of not surrendering after surrendering to avoid being investigated by judicial organs.
75. How many years can a defendant with a suspended death sentence be released after serving at least his sentence? In other words, how to release the defendant whose death sentence is suspended after commutation?
At least fourteen years.
76. How do you understand the teacher's repentance?
In ancient Chinese, it means to write a written statement to repent, you know, that is to say, to repent in writing to the relevant authorities.
77. With regard to the interpretation of quasi-state staff, how to abide by the principle of status first and position first? Can NPC explain it in the future?
We should talk about position, not status.
78. At present, there are many serious accidents. Should penalties be increased, such as life imprisonment or even death penalty?
A major accident is a negligent crime, and it is impossible to sentence life and death.
79. What is aggravated consequential offense?
For example, if rape causes death, it is still punished as rape, but the punishment is aggravated in the basic composition, which is an aggravated consequential crime. Generally speaking, in the last paragraph of the law, if something happens, it will be punished more severely.
80. A private owner instructed his employees to steal a boiler for the use of the enterprise. The procuratorate prosecuted the crime of * * *, and the lawyer defended the unit crime, arguing that the employees were not enough to constitute a crime. Personally, I think the lawyer is wrong. Teacher, what do you think?
Your opinion is correct. The criminal law does not stipulate that a unit can constitute theft, so it is not a unit crime.
8 1, how much money can be sentenced to death for accepting bribes?
If the amount stipulated by law is more than.100,000 yuan, it is especially huge and the circumstances are serious, and the death penalty can be imposed. But now, according to judicial practice, it is generally more than1100,000 yuan.
82. What are the competing clauses in the criminal law?
This is a theoretical problem of criminal law. Generally speaking, there are two or four situations, namely, the subordinate competition of laws and regulations (independent competition and inclusive competition) and the overlapping competition of laws and regulations (interactive competition and partial competition). See Professor Chen Xingliang's book Introduction to the Application of Criminal Law.
83. How to understand that criminal illegality is the legal feature of crime?
Criminal illegality refers to the violation of criminal law norms, that is, a crime is defined as a crime in criminal law. This is a formal definition in itself, that is, it has no substantive meaning. The basic meaning is basically the same as that of the principle of legally prescribed punishment for a specified crime. It emphasizes the authority of criminal law, so it is a legal feature.
84. A criminal suspect's procuratorate only knew that he took bribes of 10,000 yuan, and he confessed 980,000 yuan. Does this 970,000 yuan belong to surrender?
According to the provisions of judicial interpretation, those who confess the same kind of remaining crimes do not belong to surrender.
Knowledge points that are easy to become test sites and questions in criminal law (all)
Knowledge points that are easy to become test sites and questions in criminal law (all)
1. The conditions for applying jurisdiction protection (Article 8) must meet several conditions at the same time: First, the subject of the act must be a foreigner, including a stateless person, otherwise the "personal principle" in Article 7 of this Law shall apply; Second, the place of conduct must be outside China, otherwise the "territoriality principle" in Article 6 of this Law will apply; Third, the object of behavior must be "China people, country or citizens", that is, "our interests"; Fourth, the nature of the act is a felony, that is, the law of the place where the act is committed and the criminal law of our country stipulate the act as a crime; Fifth, the act is a "double crime", that is, both the law of the place where the act occurred and the criminal law of our country stipulate the act as a crime.
2. Prerequisites for exercising the right of special defense (Article 20, paragraph 3): The cause and condition are violent crimes that endanger personal safety, not ordinary unlawful infringement. The interests protected by defensive behavior are limited to personal safety, excluding other legitimate rights and interests; "Beating" should be understood as intentional injury or more.
3. Exception to the application of emergency avoidance (Article 2 1 Paragraph 3): that is, for those who have specific responsibilities in their posts and businesses, such as firefighters, the premise is to "avoid personal danger".
4. In the case that the property penalty is not enough to pay the civil compensation liability, the principle and order of payment (Article 36): the order of civil liability and criminal liability, "putting people before punishment", aims to protect the legitimate rights and interests of victims.
5. Differences between the legal obligations that the controlled prisoner, the suspended prisoner and the parolee should abide by (Articles 39, 75 and 84): Several legal obligations that the controlled prisoner should abide by are easily confused with those that the suspended prisoner and the parolee should abide by, because the controlled prisoner, the suspended prisoner and the parolee are all criminals with certain personal freedom, so they should not execute the punishment in prison, but should abide by them during the execution. Items (1), (3), (4) and (5) of article 39 are basically the same, but the biggest difference is that item (2) of this article is not available in the latter two articles, that is to say, whether the "six freedoms" such as speech are directly used is the difference between the obligations of a controlled prisoner and a suspended or paroled prisoner.
6. The application of the death penalty is prohibited (Article 49): "Pregnant women" also includes women who have undergone induced abortion. According to the Official Reply of the Supreme People's Court1August 4, 998 on whether to apply the death penalty to pregnant women during the trial of spontaneous abortion cases in custody, pregnant women who have been prosecuted for the same fact after spontaneous abortion in custody because of suspected crimes should be considered as pregnant at trial.
7. Cases not subject to statute of limitations (Articles 87 and 88)
8. Summary of issues that should be reported to the highest judicial organ for approval in the General Provisions (Articles 48, 63, 865-438+0, 87)-death penalty, problems that need to be mitigated because there are no statutory mitigating circumstances, the minimum period for applying parole, and the extension of the limitation of prosecution. , the first three should be reported to the Supreme People's Court, and the latter should be reported to the Supreme Procuratorate for approval.
9. Criminal activities such as betraying the country, splitting the country, armed rebellion, riots and subversion of state power shall not be punished as the crime of aiding and abetting, but as the crime of financing criminal activities endangering state security alone. (Article 107)
10, How to characterize the death caused by escaping after a traffic accident (Article 133) Article 133 stipulates that it should be punished within the range of more than 7 years' imprisonment, that is, "death caused by escaping" means that after a traffic accident, the actor did not rescue the victim in time, but fled the scene, resulting in the victim's death due to the delay in rescue. If the perpetrator takes active measures when escaping after the accident, such as taking the victim to a lonely place, or pushing the victim into a road pit to intimidate or reverse the car, and then running over the victim to escape, which may lead to the death of the victim, this case may constitute several crimes, namely the crime of traffic accident and the crime of intentional homicide, and several crimes shall be punished together. This kind of escape can be called "active escape".
1 1, the relationship between the crime of planting and selling fake and inferior drugs and the crime of producing and selling fake and inferior products: the key is to grasp article 149, which has universal significance in this section and has two meanings: first, the crime of producing and selling goods 14 1 to/. At the same time, the sales amount is more than 50,000 yuan, that is, the crime of producing and selling fake and inferior products in Article 140 and the specific crimes specified in Articles 14 1 to 148, respectively, shall be convicted and punished according to the provisions of heavier punishment. Second, if it does not constitute a specific crime stipulated in each article, but the sales amount is more than 50,000 yuan, it shall be convicted and punished for the crime of producing and selling fake and inferior products in Article 140.
In the crime of smuggling cultural relics and precious metals stipulated in Article 12 and Article 153, if the smuggling behavior is different from other smuggling crimes, it is limited to illegal export (border) behavior, excluding import (border) behavior, that is, the smuggling of cultural relics to precious metals is one-way rather than two-way behavior. If the perpetrator brings overseas cultural relics and precious metals out of the country (territory) without authorization, it may constitute 153 crime of smuggling ordinary goods and articles, but it may not be the most (1999 investigation).
13. Pay attention to two special forms of smuggling crimes (disguised smuggling in article 154 and indirect smuggling or quasi-smuggling in article 155).
14. The characterization of false claims made by insurance staff (Article 183) may be the crime of corruption or the crime of occupational embezzlement according to the identity of the subject.
15. characterization of illegal loans-the conditions that constitute a crime vary with different recipients (article 186, paragraphs 1 2). One is to issue loans to related parties, which can constitute a crime, and the other is to issue loans to people outside related parties, which needs to cause heavy losses to constitute a crime.
16. The object of the crime of money laundering (Article 19 1) is the crime of money laundering. There are three kinds of specific crimes-drug crimes, organized crimes of underworld nature and smuggling crimes.
17. Deliberately creating an insurance accident to defraud insurance money has different treatment principles from deliberately fabricating an insurance accident to defraud insurance money. The former involves the possibility of combined punishment for several crimes.
18. How to deal with the act of defrauding export tax rebates by falsely reporting exports after paying taxes, and the tax defrauded exceeds the tax paid (Article 204, paragraph 2). The crime of tax evasion and the crime of defrauding export tax rebates should be punished for several crimes. (Theoretically, it is generally believed that this kind of situation is an imaginative joinder of offenses, but it is also punished together, so it is a special case in legislation.