Time: 09-27 14:40 Author: Wei Xinjian Zheng Huawei News Source: Procuratorate Daily
One is whether the vehicle ownership is infringed, and the other is whether the circumstances that hinder official business are serious.
Case: On March 4th, 2005, Qian rented a car from a car rental company with a price of 1 1 ten thousand yuan at the daily 200 yuan price. During driving, he was detained by the traffic police for speeding without a license. The traffic police squadron issued the "Certificate of Administrative Compulsory Measures for Public Security Traffic Management" to Qian. Subsequently, the traffic police parked the car in the parking lot designated by the traffic police brigade for processing. In the morning, Qian bought a pair of pliers at the hardware store. At 9 o'clock in the evening, Qian cut the chain lock of the parking lot door with pliers and drove the car away. At 8 o'clock the next morning, Qian returned the car to the car rental company and settled the rental money. It happened a few days later.
Disagree:
1. The behavior of money constitutes a crime of obstructing official duties. The reason is that in the public security organs' official activities, money deliberately obstructs state staff from performing official duties according to law, and uses pliers to cut and lock the seized vehicles and drive away after death, so it should be punished qualitatively for obstructing official duties.
2. The act of money constitutes theft. The reason is that money in the management of public security organs, using the method of secret theft, stealing cars worth more than 1 10000 yuan. According to Article 91 of the Criminal Law: "Private property managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations is regarded as public property." Qianmou steals public property, and the amount is extremely huge, which constitutes theft.
(Case provided: Zhang, Zhang, Zhou Guixi)
Comments:
In judicial practice, cases of illegal and secret driving of vehicles seized by administrative organs or judicial organs occur from time to time. Due to the different understanding of the law by local courts and different judges and the lack of unified judicial interpretation, the results of handling such cases are very different, either not being treated as a crime or being given a heavier punishment (in most cases, the amount of vehicle theft can reach a "particularly huge" sentencing plot). In view of this, the author believes that it is really necessary to discuss the nature of such cases in detail. Judging from the provisions of the specific provisions of the criminal law, such cases mainly involve two crimes: theft and obstruction of official duties. As far as this case is concerned, the author believes that it does not constitute a crime.
1. This case does not constitute theft.
According to Article 264 of the Criminal Law, theft refers to the act of secretly stealing a large amount of public or private property for the purpose of illegal possession. To constitute theft, the subjective aspect must have the purpose of illegal possession of public and private property, and the object is infringement of the ownership of public and private property. The ownership mentioned here includes various rights such as possession, use, income and disposal of property; "Illegal possession" not only refers to the actor's possession of property, but also includes the overall violation of all ownership rights. In civil law, ownership is an absolute right and a right to the world, which can only be transferred by legal acts such as buying, selling, giving, reciprocity and inheritance, or transferred to the state because the property is confiscated by the relevant authorities according to law. Vehicles seized by administrative or judicial organs do not naturally transfer ownership, but only restrict the exercise of ownership, so the owner does not lose ownership of the vehicle. If the owner secretly drives the vehicle, although the means are illegal, it does not constitute a violation of ownership. That is to say, in most cases, the seized vehicle is secretly driven away, so it is impossible to be infringed because the ownership has not been transferred, and it is difficult to constitute theft. This is the case in the case cited earlier in this article. After the perpetrator secretly drove the vehicle back, he returned the vehicle to the leasing company the next day, proving that he just wanted to escape the public security punishment. In order to "get things done early", it should not be considered as theft. However, if the perpetrator hides, transfers or sells the vehicle after driving it back, and demands the vehicle or claims from the seizure organ with the seizure certificate, his intention of illegally occupying public property is very obvious and should be punished as theft.
Specific to the provisions of Article 91 of the Criminal Law, that is, "private property managed, used or transported by state organs, state-owned companies, enterprises, collective enterprises and people's organizations is regarded as public property", this article only defines what is public property for duty crimes such as corruption and misappropriation of public funds, and the listed property does not transfer its ownership because of this provision, so it is not necessary to distinguish whether the object of theft is private property.
Second, this case does not constitute a crime of nuisance of official duties.
According to the provisions of Article 277 of the Criminal Law, the crime of obstructing official duties refers to the act of obstructing the staff of state organs, deputies to the National People's Congress and staff of the Red Cross from performing their duties according to law by means of violence or threat, or deliberately obstructing the state security organs and public security organs from performing state security work according to law, which has caused serious consequences without using violence or threat. Whether the perpetrator secretly drives away the vehicle seized by the administrative organ or the judicial organ can constitute a crime of obstructing official duties and under what circumstances can it constitute a crime of obstructing official duties is quite complicated. We can divide it into the following situations:
(1) The vehicle is a criminal tool endangering national security or involves other national security issues, and the perpetrator drives in secret, which causes the crime endangering national security to continue or seriously affect the investigation work, and may also cause other hazards to national security. At this time, the fourth paragraph of Article 277 of the Criminal Law should be directly applied to punish the perpetrator for the crime of obstructing official duties.
(2) The vehicle is detained by the relevant administrative organ for violating traffic regulations, public security administration or other administrative regulations, and the perpetrator drives in secret. If the perpetrator does not use violence or threats, which has nothing to do with national security issues, it does not reach the level of criminal sanctions, does not meet the elements of the crime of obstructing official duties, and is only an illegal act that violates public security management. This case is such a situation. The perpetrator of this case did not resort to violence or threats, and according to the principle of legality and the principle of modesty of criminal law, it did not constitute a crime of obstructing official duties.
(3) If the vehicle is seized by the judicial organs by compulsory measures in civil and criminal proceedings, the perpetrator drives it away in secret, which can be considered as hiding, transferring, selling off, intentionally damaging the property that has been sealed up, seized or frozen by the judicial organs, interfering with the investigation and prosecution of the case, and finally leading to the unenforceability of the judgment or ruling, which conforms to the provisions of Article 314 of the Criminal Law and constitutes the crime of illegally disposing of the sealed up, seized or frozen property.
(4) The vehicle is the object of execution determined by an effective civil judgment or ruling, or the object of confiscation according to an effective criminal judgment or ruling, and the perpetrator drives it away in secret, which is in line with the provisions of Article 313 of the Criminal Law and should be convicted and punished for refusing to execute the judgment or ruling.
It should be pointed out that illegally disposing of the seized, seized or frozen property and refusing to execute the judgment or ruling are essentially acts that hinder official duties, but are not limited to violence, threats and special subjects. Based on this, the author believes that there is a problem in the setting of the crime of obstructing official duties in China's criminal law: the connotation and extension are inconsistent, and it is difficult to form a relationship between general provisions and specific provisions with many other crimes that hinder official duties, which leads to confusion in the application of the law. According to Modern Chinese Dictionary, "official business" refers to all affairs related to the state or the collective. It can be seen that all legislative, judicial and law enforcement activities, and all activities involving the exercise of public power are undoubtedly "official duties". Whether the behavior that hinders these activities can constitute a crime should only be based on whether the circumstances are serious, rather than distinguishing the objects. Just as the crime of smuggling ordinary goods and articles is a supplement to the crime of smuggling drugs and precious metals, the crime of obstructing official duties should also be a bottom clause. The author investigates the crime of obstructing official duties in the specific provisions of the criminal law, and thinks that the crime of obstructing official duties can be used as the bottom clause of obstructing official duties except the following crimes clearly stipulated in the criminal law: 1. All crimes that impede judicial justice; 2. The crime of inciting violence to resist law enforcement; 3. The crime of gathering people to obstruct the rescue of bought women and children and the crime of obstructing the rescue of abducted women and children; 4. Crime of obstructing the prevention and control of infectious diseases and frontier health and quarantine; 5. Crime of obstructing military personnel from performing their duties, crime of obstructing military action, crime of obstructing the performance of military duties, etc.
(The authors are deputy procurator-general of Zhoukou City Procuratorate and graduate students of China University of Political Science and Law)