Party information
Claimant for compensation: Chen Zhiming, male, born in * * *, Han nationality.
Authorized Agent: Wu, lawyer of Shandong Law Firm.
Organ liable for compensation: Linzi Branch of Zibo Public Security Bureau.
Legal Representative: Wu, director.
Authorized Agent: Fan Runze, staff member of Linzi Branch of Zibo Public Security Bureau.
Authorized Agent: Tian Gang, staff member of Linzi Branch of Zibo Public Security Bureau.
Organ for reconsideration: Zibo Public Security Bureau.
Authorized Agent: Gao Tao, staff member of Zibo Public Security Bureau.
Authorized Agent: Luo Guangli, staff member of Zibo Public Security Bureau.
Trial process
Chen Zhiming, the claimant of compensation, applied for state compensation from Linzi Branch of Zibo Public Security Bureau for criminal violation, and refused to accept the decision of Linzi Branch of Zibo Public Security Bureau [20 16] No.001and No.001of Zibo Public Security Bureau not to grant state compensation. The compensation Committee of our hospital tried the case according to law, and the trial has now ended.
Plaintiff's point of view
Linzi Branch of Zibo Public Security Bureau made the decision of [20 16] No.00 1 on July 9, 20/KLOC-0. The decision found that Wang and others were suspected of opening a casino, and the Zibo Public Security Bureau made a decision on July 27, 20 1 1. On March 22nd, 20 13, Chen Zhiming and other 20 suspects were sentenced to punishment. Chen Zhiming was sentenced to four years and six months in prison and fined 8 million yuan, and his gang members were fined 2.43 million yuan; At the same time, he was sentenced to confiscate his illegal foreign exchange trading funds and recover his illegal income. Linzi Branch of Zibo Public Security Bureau * * * seized 6.5438+0.5643 million yuan in cash when handling the case of Chen Zhiming and others, of which Chen Zhiming was fined 8 million yuan, Chen Zhiming bribed 2.43 million yuan for his gang members, 3.709 million yuan was used for illegal trading of foreign exchange, and others made a profit of 6.5438+0.63 million yuan (actually recovered 6.5438+0.42 million yuan). DecisionNo. Linzi Branch of Zibo Public Security Bureau [20 16]00 1 No State Compensation: Chen Zhiming's claim for compensation does not fall within the scope of criminal compensation stipulated in the State Compensation Law of People's Republic of China (PRC), and it is decided not to pay compensation according to the third paragraph of Article 23 of the State Compensation Law of People's Republic of China (PRC).
Chen Zhiming refused to accept the decision [20 16] No.001made by Linzi Branch of Zibo Public Security Bureau, and applied to Zibo Public Security Bureau for reconsideration. Zibo Public Security Bureau's No.00 1 decision on reconsideration of criminal compensation holds that Linzi Branch of Zibo Public Security Bureau has not compensated Guo [20 16].
Chen Zhiming, the claimant of compensation, filed an application with the compensation committee of our hospital, claiming: 1. The organ liable for compensation has confused the names of the crimes committed by Chen Zhiming, and has always treated Chen Zhiming and others as cases suspected of illegally operating and opening casinos. However, criminal judgment of Linzi District People's Court (20 12) found Chen Zhiming guilty of illegal business operation, sentenced him to four years and six months' imprisonment and fined him 8 million yuan, but failed to make a judgment on Chen Zhiming's crimes of illegal business operation and casino opening. 2. The organ liable for compensation has expanded the scope of punishment. (20 12) Chen Zhiming and his gang members were sentenced to a fine of 8 million yuan plus 2.43 million yuan. There are no other penalties. However, the decision of the organ liable for compensation expanded the explanation of "at the same time, it decided to confiscate its illegal foreign exchange trading funds and recover its illegal income". (20 12) No.376 at the beginning of punishment criminal judgment has no such judgment on Chen Zhiming and his gang members. According to Article 225 of the current Criminal Law, the crime of illegal business operation is punishable by fixed-term imprisonment of not more than five years or criminal detention, and a fine of not less than one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times his illegal income or his property shall be confiscated. According to the provisions of this article, fixed-term imprisonment and fines can be combined, as can fixed-term imprisonment and confiscation of property, but fines and confiscation of property cannot be combined, and the original judgment did not combine fines and confiscation of property. 3. In the decision, there is a certificate that "the funds used for illegal trading of foreign exchange are 3.709 million yuan, and the illegal income of Chen Zhiming and others is 6.5438+0.63 million yuan (actually recovered is 6.5438+0.42 million yuan) has been turned over to the state treasury" and that "the fines and illegal income payable by Chen Zhiming and others have been brought to justice" issued by Linzi District People's Court in 2065.438+05. Moreover, the organ liable for compensation has no right to dispose of this part of the money separately according to law. The story of this case is as follows: 12 In March, Chen Zhiming was criminally detained by Linzi Branch of Zibo Public Security Bureau on suspicion of opening a casino, and was arrested on April 19 of the same year. The People's Procuratorate of Linzi District of Zibo City sued the People's Court of Linzi District for the crime of illegal business operation. (20 12) The last sentence of the first paragraph of criminal judgment No.376, page 13, has clearly stated that the amount of the appellee group detained by the public security organ is RMB 15643000 yuan (including RMB 84000 yuan of the appellee). The court found that Chen Zhiming's illegal income was 6,543,800 yuan+0,630 yuan. Finally, Chen Zhiming was convicted of illegal business operation, sentenced to four years and six months in prison and fined 8 million yuan. On May 5, 20 15, the People's Court of Linzi District of Zibo City issued a certificate for Chen Zhiming, proving that the fines and illegal income payable by Chen Zhiming and others had been turned over to the judicial organs in full. Linzi Branch of Zibo Public Security Bureau also issued a receipt for Chen Zhiming, the receipt number was 12 1090603996, and the amount was 8 million yuan. The People's Court of Linzi District issued the "Explanation on Handling Some Fines for Chen Zhiming and Song Shanglin's Illegal Operation and Opening of Casinos" on June 20 16, and the fine of 2.43 million yuan was paid from the deduction of Chen Zhiming. However, Linzi Branch of Zibo Public Security Bureau later issued a receipt for Chen Zhiming with an amount of 3.709 million yuan (No.:12 1090603995). 101060700467 general notes issued to Chen Zhiming on October 4th, 2065, and the applicant 1.42 million yuan was confiscated. The fines of 3.709 million yuan and 6.5438+0.42 million yuan are inconsistent with the certificate issued by the People's Court of Linzi District, Zibo City in 2065.438+05 that "the fines payable by Chen Zhiming and the illegal income have been turned over to the judicial organs in full". Linzi Branch of Zibo Public Security Bureau confiscated Chen Zhiming's deduction without any basis, which violated the law and infringed on the applicant's legitimate rights and interests. Therefore, 1 requested to cancel the decision of [20 16]00 1 issued by Linzi Branch of Zibo Public Security Bureau and the decision of [2016] 00/criminal compensation reconsideration issued by Zibo Public Security Bureau. 2. Request the court to order the organ liable for compensation to return the impounded money (after deducting 8 million yuan plus a fine of 2.43 million yuan * * 10430 yuan) of 5 129000 yuan and compensate the losses.
Defendant's point of view
Linzi Branch of Zibo Public Security Bureau, the organ liable for compensation, replied: Our bureau seized cash156.43 million yuan in handling the case of others, of which 84,000 yuan was returned to He himself after being detained, and the rest were all fined, turned over to the illegal income, confiscated its illegal foreign exchange trading funds and turned over to the state treasury. In the process of handling the case, our bureau has made clear the source and whereabouts of the seized property in strict accordance with the relevant provisions of the Criminal Procedure Law of People's Republic of China (PRC) and the Procedures for Handling Criminal Cases by Public Security Organs. 1. In response to the claim made by the claimant that "the organ liable for compensation confused the name of the crime in the whole decision", Song Shanglin and Wang committed the crime of opening a casino and illegal business operation. Because of the same case, the decision said that "others are suspected of illegally operating and opening casinos", among which "others" refers to Song Shanglin, Wang and others. Therefore, there is no question of confusing the names of crimes committed by Chen Zhiming. 2. In response to the question raised by the compensation claimant that "the decision expanded the scope of punishment", (20 12) Criminal Chu Zi No.376 has 2 1 copy, of which the first 20 are judgments against 20 defendants, including Song Shanglin and Wang. 2 1 Judgment reads: "Gambling funds and illegal gains involved in the case shall be recovered. Therefore, there is no problem that the "Decision" has expanded the scope of punishment. 3. According to the statement of the claimant, the funds used for illegally buying and selling foreign exchange are 3.709 million yuan. Chen Zhiming and others' illegal income of 6.5438+0.63 million yuan (actually recovered 6.5438+0.42 million yuan) has been turned over to the state treasury, which contradicts the court's statement that Chen Zhiming and others should pay the fine and the illegal income has been turned over to the judicial organs in full on May 5, 2065. Our unit seized 654.38+0.564 in Chen Zhiming. The fines that have been used to execute the judgments of the People's Court of Linzi District are 8 million yuan, the fines that have been used for gang members are 2.43 million yuan, the funds used for illegal trading of foreign exchange are 3.709 million yuan, and the illegal income is 6.5438+0.63 million yuan (actually recovered is 6.5438+0.42 million yuan), all of which have been turned over to the state treasury. There is no contradiction claimed by the claimant. To sum up, in this case, the claimant's claim for compensation does not belong to the scope of criminal compensation stipulated in the State Compensation Law of People's Republic of China (PRC), and our decision not to compensate is correct and should be maintained.
The public security bureau of Zibo City, the reconsideration organ, said that according to the judgment No.21on page 39 of criminal judgment No.376 of Linzi District People's Court of Zibo City, the court decided to recover the illegal income and confiscate the illegal foreign exchange funds, confiscate the illegal foreign exchange funds and criminal tools and turn them over to the state treasury. Regarding the court's determination of the amount of illegal income of the defendant Chen Zhiming Group, the court confirmed that the amount of illegal income of the defendant Chen Zhiming was 6,543,800 yuan+0,630 yuan. Due to insufficient amount, the public security organ actually recovered 6.5438+0.42 million yuan and turned it over to the finance on June 4, 2065.438+0.665438. 20111210 detained 3.709 million yuan on the spot. Although the court did not specify the specific amount, it was indeed the funds used by Chen Zhiming Group to illegally buy and sell foreign exchange. After the court ruled, it was turned over to the finance on April 13. The decision made by Linzi Branch of Zibo Public Security Bureau not to grant state compensation (Gong Lin No.2016 No.001) found that the facts were clear and the applicable law was correct. According to Article 28 of People's Republic of China (PRC) State Compensation Law, we request Zibo Intermediate People's Court to maintain our reconsideration decision on criminal compensation.
The compensation committee of our hospital obtained the case file materials related to this case according to law. According to the cross-examination between the claimant and the organ liable for compensation, we found out the following facts: On July 27th, 201/year, Zibo Public Security Bureau filed a case to investigate Wang, Song Shanglin and others suspected of opening a casino, and assigned them to Linzi Branch of Zibo Public Security Bureau for jurisdiction. 20 13 On March 22nd, the People's Court of Linzi District of Zibo City issued (2065438+02) No.376, and 20 suspects including criminal judgment and Chen Zhiming were sentenced by the People's Court of Linzi District. Among them, Chen Zhiming was convicted of illegal business operation, sentenced to 4 years and 6 months in prison and fined 8 million yuan. The other defendants were sentenced to fixed-term imprisonment and fined for the crime of opening a casino and illegal business operation respectively. Article 21 of the criminal judgment: the gambling funds and illegal gains involved in the case shall be recovered, and the funds and criminal tools for illegally buying and selling foreign exchange shall be confiscated and turned over to the state treasury. Linzi District, Zibo City * * * seized the group case 1 5,643,000 yuan (of which 84,000 yuan was returned to He himself after the decision of seizure), of which1and a fine of 8 million yuan was handed over to the financial department by Linzi Branch of Zibo Public Security Bureau in April 20 13. 2. Chen Zhiming paid a fine of 2.43 million yuan for its gang members, which was handed over to the People's Court of Linzi District, Zibo City. Chen Zhiming has no objection to these two fines. 3. The illegal operating fund of 3.709 million yuan was turned over to finance by Linzi Branch of Zibo Public Security Bureau on April 13. 4. Chen Zhiming's illegal income of 6.5438+0.42 million yuan was turned over to the finance by Linzi Branch of Zibo Public Security Bureau on 2065.438+06.104. Chen Zhiming believes that the property illegally seized by Linzi Branch of Zibo Public Security Bureau should be returned and the losses should be compensated. On May 5, 2065438, the People's Court of Linzi District of Zibo City issued a certificate of Chen Zhiming's commutation and parole: Chen Zhiming and others illegally operated and opened casinos. In the process of handling the case, Chen Zhiming's fines and illegal gains have been turned over to the judicial organs in full.
Court view
The Compensation Committee of our hospital believes that the criminal judgment of Linzi District People's Court (2012) No.376, which was immediately executed, found Chen Zhiming guilty of illegal business operation, but other co-defendants were sentenced for the crime of opening a casino. Therefore, the decision of [20 16] No.001made by Linzi Branch of Zibo Public Security Bureau stated that Chen Zhiming and others were suspected of illegal business operations. (20 12) criminal judgment article 21: recover the gambling funds and illegal income involved, confiscate the funds and criminal tools for illegally buying and selling foreign exchange and turn them over to the state treasury. This ruling covers all defendants, including Chen Zhiming. Chen Zhiming, the claimant, claimed that Linzi Branch of Zibo Public Security Bureau illegally detained and demanded the return of 5129,000 yuan, of which 3,709,000 yuan was used by Chen Zhiming for illegal business, that is, illegal trading of foreign exchange, and142,000 yuan was illegally obtained by Chen Zhiming. Linzi Branch of Zibo Public Security Bureau, the organ liable for compensation, shall confiscate or recover it and turn it over to the state treasury, without violating the law. The certificate issued by the People's Court of Linzi District, Zibo City on May 20 15 15 does not contradict this. Chen Zhiming applied to Linzi Branch of Zibo Public Security Bureau, the organ liable for compensation, for state compensation, which has no factual and legal basis and is not supported. Accordingly, in accordance with the provisions of the first paragraph of Article 18 of the People's Republic of China (PRC) State Compensation Law and the first paragraph of Article 19 of the Provisions of the the Supreme People's Court Compensation Commission on the Procedure for Hearing State Compensation Cases, the judgment is as follows:
Case results
Maintain the decision of Linzi Branch of Zibo Public Security Bureau [20 16] No.001not to grant state compensation and the decision of criminal compensation reconsideration of Zibo Public Security Bureau [20 16] No.001.
This decision has legal effect.