(1) Causality condition-there must be danger.
As a prerequisite for emergency avoidance, the danger must be real, not imagined or speculated. If there is no danger in fact and the actor mistakenly thinks there is danger, then the so-called hedging behavior belongs to the imaginary hedging. Hypothetical hedging is a mistake in understanding the facts. If the perpetrator is subjectively negligent and causes serious consequences, it shall be treated as a negligent crime. If there is no subjective fault, it should be handled as an accident.
(2) Time condition-it must be that danger is happening. The so-called danger is happening, which means that the danger enough to cause serious damage to legitimate rights and interests has appeared and has not yet ended.
The so-called hedging is called untimely hedging in criminal law theory when the danger has not yet appeared or has ended. If the actor is subjectively at fault because of improper hedging, he shall bear corresponding civil liability and be investigated for criminal responsibility.
(3) Object conditions-hedging must be carried out against the smaller legitimate rights and interests of third parties. The object of emergency avoidance must point to another legal right, and it must be the legal right of a third person who has nothing to do with the source of danger. This is an important difference between emergency avoidance and legitimate defense.
(4) Subjective conditions-it must be for the purpose of hedging. When the actor carries out emergency hedging behavior, it must be subjectively out of hedging intention. Avoidance intention refers to the psychological state that the actor is determined to take hedging behavior in order to protect the national and public interests and the personal, property and other rights of himself or others from being damaged.
The intention of hedging must be reasonable.
(5) Timing conditions-it must be implemented when absolutely necessary.
The so-called necessity generally means that there is no more reasonable way to protect the larger legitimate rights and interests except sacrificing another smaller legitimate rights and interests in emergency and dangerous situations.
(6) Limit condition-it cannot exceed the necessary limit and cause undue damage. This characteristic determines that the loss caused by emergency hedging must be less than the loss to be avoided, but not greater than or equal to the loss to be avoided.
How to measure the value of two kinds of legitimate rights and interests in emergency hedging is the key to determine whether emergency hedging is excessive.
The provisions on emergency avoidance do not apply to persons who have specific responsibilities in their posts and businesses.
If the emergency avoidance exceeds the necessary limit and causes undue damage, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted.
The so-called crime of embezzlement refers to the act of illegally taking property, forgetting things or buried objects handed over by others for the purpose of illegal possession, and refusing to return them in a large amount. Theft refers to the theft of public or private property, which is a criminal act that is committed in a large amount or many times. See Article 270 of the Criminal Law, which stipulates that "illegally possessing other people's property for safekeeping and refusing to return it; Illegal possession of other people's forgetting things or buried objects, the amount of which is relatively large, and refuses to hand it over "constitutes the crime of embezzlement. See Article 264 of the Criminal Law, "Stealing public or private property in a large amount or repeatedly".
The crime of embezzlement is divided into two situations: one is to refuse to return it under the condition of legal possession in advance; The other is illegal possession of forgetting things, buried objects and refusal to hand them over. The first case involves two issues: one is the confirmation of the way to determine the behavior of "custody on behalf of". The "custody" here includes not only the custody relationship based on the custody contract, but also the custody relationship formed by facts. In other words, all non-self-owned management relations should be regarded as "custody" acts stipulated in the criminal law. The following seven situations can form a relationship of "keeping other people's property on behalf of others". 1, entrusted by others. 2. Borrowing of actors. 3. Actor lease. 4. collateral actors. 5. Personal partnership property management. 6. Manage property without reason. 7. unjust enrichment. The second is the definition of the actor's possession and domination of things. This involves how to judge whether the actor legally occupies the property, which is also the key problem that distinguishes the crime of embezzlement from other crimes. Usually, the actor's legal possession of property stems from the above seven situations. However, it should be excluded that the actor holds the property for a short time with the permission or acquiescence of the property owner. The formation of custody relationship, that is, the formation of legal possession, must have several elements: first, the owner or the original custodian instructs to transfer possession; The second is the establishment of the obligation of transfer of preserved objects. With the formation of custody relationship, the custodian often assumes certain obligations, but not all of them. The scope of the obligation often depends on the specific circumstances.
When examining the custody relationship, we should further examine the authority of right custody. After the custody relationship is formed, it does not mean that the custodian enjoys full control. In addition to being unable to exercise the right of disposition, in order to better protect their property or privacy, the owner of the property often restricts the control authority of the custodian through certain express (such as explicit notification) or implied (such as locking or sealing). The authority of guardianship is different from the content of guardianship: the content of guardianship refers to the responsibility of guardianship. Ensure the safety of the whole box, including the safety of the property in the box. Custody authority refers to the extent to which the custodian can control the things under custody. The custodian can control the whole box, but it does not mean that the custodian can control the property in the box. Of course, the trustee can form a de facto domination, but this domination is illegal. Managed content is used to specify what the custodian should do; Custody authority is used to stipulate what the custodian can't do, and is generally used to restrict the custodian from seeing or touching a certain part of the property. Therefore, the integrity of the custody content does not mean that the custody authority is also complete.
For example, Article 253 of the Criminal Law stipulates: "Postal personnel who open, conceal or destroy mail and telegrams privately shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. Whoever commits the crime mentioned in the preceding paragraph and steals property shall be given a heavier punishment in accordance with Article 264 (Theft) of this Law. " Mail belongs to postal workers, and taking away the property in the mail by postal workers does not constitute the crime of embezzlement, but the crime of theft. Whether the custody relationship is established depends on whether there are two elements: first, the owner or the original custodian instructs the transfer of possession; The second is the establishment of the obligation of transfer of preserved objects. An exception to the custody relationship is that the custodian has exceeded the custody authority.
These two punishments are:
Crime of embezzlement: sentenced to fixed-term imprisonment of not more than two years, criminal detention or fine; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than five years and shall also be fined.
Whoever illegally takes forgetting things and buried objects of others for himself and refuses to hand them over in a large amount shall be punished in accordance with the provisions of the preceding paragraph.
Theft: sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and concurrently or exclusively fined; 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 and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated; Under any of the following circumstances, he shall be sentenced to life imprisonment or death, and his property shall be confiscated.
Therefore, the sentencing basis of the two is different!
I hope my answer above is useful to you.
References:
criminal law
Criminal detention is a crime of short-term deprivation of personal freedom, and the public security organ shall carry out detention and reform nearby. Criminal detention is one of the five main punishments stipulated in China's criminal law, and it is a lighter punishment between public surveillance and fixed-term imprisonment. The term of criminal detention shall be from one month to six months, and the maximum combined punishment for several crimes shall not exceed 1 year. During the execution, criminals sentenced to criminal detention can go home for one or two days a month; Those who take part in labor may be paid as appropriate. The term of criminal detention shall be counted from the date of execution of the judgment; If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment.
Control is one of the five main punishments stipulated in criminal law. The people's court decided not to detain and reform criminals, but to restrict their personal freedom and hand them over to the public security organ where their household registration is located for supervision and reform, which is the lightest of the main punishments.
Control is a criminal punishment that does not deprive criminals of their personal freedom, but restricts their personal freedom according to law. Criminals sentenced to public surveillance still live in the original social environment. If you still live with your family, eat together, and have a work unit, you still work in your original work unit and get paid. Without a work unit, you can still do your original work, such as doing business and selling labor services. Its supervision and reform is not carried out by the prison according to law, but by the public security organ where the household registration is located.
The control period is more than three months and less than two years. The combined punishment for several crimes shall not exceed three years.
During the period of being sentenced to public surveillance, criminals can exercise their political rights within a limited scope. Those who have not been deprived of political rights have the right to vote, but they may not be elected, nor may they serve as leaders of state organs, enterprises, institutions and social organizations.
Upon the expiration of control execution, the executing organ shall announce the cancellation of control to himself and his unit or residence, and issue a notice of cancellation to restore the rights of his citizens.
The execution period of public surveillance shall be counted from the date of judgment, and the detention time before judgment shall be reduced to two days' imprisonment for each day of detention, and the remaining days shall be the actual execution date of public surveillance. If a criminal is sentenced to three months' control, he shall be detained for 30 days before the judgment. The calculation formula is: after deducting 60 days from the specific total number of days in three months, the remaining period is the actual monitored residence period.
If a person is sentenced to public surveillance and additional deprivation of political rights, the deprivation of political rights shall be carried out at the same time as the public surveillance, and the time limit for additional deprivation of political rights shall expire at the same time as the public surveillance is carried out.
1
Article 1 This Law is formulated in accordance with the Constitution in order to protect the physical and mental health of minors, safeguard their legitimate rights and interests, promote their all-round moral, intellectual and physical development, and train successors with ideals, morality, education and discipline in the socialist cause.
Article 2 Minors mentioned in this Law refer to citizens under the age of 18.
Article 3 The state, society, schools and families shall educate minors in ideals, morality, culture, discipline and legal system, patriotism, collectivism, internationalism and productism, advocate the public morality of loving the motherland, people, labor, science and socialism, and oppose the erosion of capitalism, feudalism and other decadent ideas.
Article 4 The protection of minors shall follow the following principles:
(a) to protect the legitimate rights and interests of minors;
(2) Respecting the personal dignity of minors;
(three) to adapt to the characteristics of physical and mental development of minors;
(4) Combination of education and protection.
Article 5 The state guarantees that the person, property and other lawful rights and interests of minors are inviolable.
Protecting minors is the common responsibility of state organs, armed forces, political parties, social organizations, enterprises and institutions, urban and rural grassroots mass autonomous organizations, guardians of minors and other adult citizens.
Any organization or individual has the right to discourage or stop acts that infringe upon the legitimate rights and interests of minors, or to report or accuse the relevant departments.
The state, society, schools and families should educate and help minors to safeguard their legitimate rights and interests by legal means.
Article 6 State organs at the central and local levels shall do a good job in the protection of minors within their respective functions and duties.
The State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall, according to needs, take organizational measures to coordinate the relevant departments to do a good job in the protection of minors.
* * * Communist Youth League, women's federations, trade unions, youth federations, student federations, young pioneers and other relevant social organizations shall assist people's governments at all levels in protecting minors and safeguarding their legitimate rights and interests.
Seventh people's governments at all levels and relevant departments shall reward organizations and individuals that have made remarkable achievements in the protection of minors.
Chapter II Family Protection
Eighth parents or other guardians shall perform their guardianship duties and support obligations for minors according to law, and shall not abuse or abandon minors; Shall not discriminate against female minors or disabled minors; It is forbidden to drown or abandon babies.
Article 9 Parents or other guardians shall respect minors' right to education, and must make school-age minors receive compulsory education in accordance with regulations, and shall not make minors who receive compulsory education drop out of school.
Article 10 Parents or other guardians shall educate minors with healthy thoughts, behaviors and appropriate methods, guide minors to engage in activities beneficial to their physical and mental health, and prevent and stop minors from smoking, drinking, wandering, gambling, taking drugs and prostitution.
Eleventh parents or other guardians shall not allow or force minors to get married, and shall not enter into marriage contracts for minors.
Twelfth parents or other guardians who fail to perform their guardianship duties or infringe upon the legitimate rights and interests of minors under guardianship shall bear the responsibility according to law.
If a parent or other guardian commits the acts listed in the preceding paragraph and refuses to change after education, the people's court may revoke his guardian qualification upon the application of the relevant person or unit; In accordance with the provisions of Article 16 of the General Principles of the Civil Law, the guardian shall be determined separately.
Chapter III School Protection
Thirteenth schools should fully implement the national education policy, moral education, intellectual education, physical education, aesthetic education, labor education, social life guidance and adolescent education for underage students.
Schools should care about and care for students; Students with shortcomings in conduct and difficulties in learning should be patiently educated and helped, and no discrimination should be allowed.
Article 14 Schools shall respect the right of underage students to receive education, and shall not expel underage students at will.
Fifteenth school and kindergarten staff should respect the personal dignity of minors, and may not impose corporal punishment, disguised corporal punishment or other acts that insult personal dignity on underage students and children.
Sixteenth schools shall not allow underage students to engage in activities that endanger personal safety and health in school buildings and other educational and teaching facilities.
No organization or individual may disturb the teaching order, occupy or destroy school buildings, houses and equipment.
Seventeenth schools and kindergartens arrange for underage students and children to participate in collective activities such as assembly, cultural entertainment and social practice, which should be conducive to the healthy growth of minors and prevent personal safety accidents.
Article 18 Minors who are sent to work-study schools for compulsory education according to relevant state regulations shall receive ideological education, cultural education, labor and technical education and vocational education.
The staff of the work-study school should care for, love and respect the students, and shall not discriminate against or exclude them.
Nineteenth kindergartens should do a good job in conservation and education to promote the harmonious development of children in physical, intellectual and moral aspects.
Chapter IV Social Protection
Article 20 The State encourages social organizations, enterprises, institutions, other organizations and citizens to carry out various forms of social activities beneficial to the healthy growth of minors.
Twenty-first people's governments at all levels should create conditions to establish and improve places and facilities suitable for the cultural life of minors.
Twenty-second museums, memorial halls, science and technology museums, cultural centers, theaters, stadiums (gymnasiums), zoos, parks and other places should be open to primary and secondary school students with preferential treatment.
Twenty-third commercial dance halls and other places that are not suitable for minors' activities, the relevant competent departments and operators should take measures to prevent minors from entering.
Article 24 The state encourages news, publishing, broadcasting, film, television, literary and artistic units, writers, scientists, artists and other citizens to create or provide works that are beneficial to the healthy growth of minors. The state supports the publication of books, newspapers, periodicals, audio-visual products and other publications specially for minors.
Twenty-fifth it is strictly forbidden for any organization or individual to sell, rent or otherwise spread obscene, violent, murderous, terrorist and other books, newspapers, audio-visual products that poison minors.
Twenty-sixth children's food, toys, utensils and recreational facilities shall not be harmful to children's safety and health.
Article 27 No one is allowed to smoke in classrooms, dormitories, activity rooms and other indoor places where minors concentrate their activities in primary and secondary schools, kindergartens and nurseries.
Twenty-eighth unless otherwise stipulated by the state, no organization or individual may recruit minors under the age of sixteen.
Any organization or individual that recruits minors who have reached the age of 16 but have not reached the age of 18 in accordance with the relevant provisions of the state shall implement the relevant provisions of the state in terms of types of work, working hours, labor intensity and protective measures, and shall not arrange them to engage in overweight, toxic and harmful labor or dangerous operations.
Twenty-ninth minors who wander and beg or run away from home shall be handed over to their parents or other guardians by the civil affairs department or other relevant departments; If it is temporarily impossible to find their parents or other guardians, the child welfare institution established by the civil affairs department shall take care of them.
Thirtieth no organization or individual may disclose the personal privacy of minors.
Article 31 No organization or individual may conceal or destroy the letters of minors; No organization or individual may open the letters of minors without legal capacity, except that the public security organs and people's procuratorates check them in accordance with the procedures prescribed by law in order to trace crimes, or their parents or other guardians open them on their behalf.
Thirty-second health departments and schools should provide necessary health care conditions for minors and do a good job in disease prevention.
Article 33 Local people's governments at all levels should actively develop the cause of children's care, strive to run nurseries and kindergartens well, encourage and support state organs, social organizations, enterprises and institutions and other social forces to set up nursing rooms, nurseries and kindergartens, and advocate and support the establishment of family nurseries.
Thirty-fourth health departments should implement the system of children's vaccination certificate, actively prevent and treat common and frequently-occurring diseases of children, strengthen the supervision and management of the prevention and treatment of infectious diseases and provide professional guidance for the health care work in nurseries and kindergartens.
Thirty-fifth people's governments at all levels and relevant departments should take various forms to cultivate and train kindergarten and nursery teachers and strengthen their political, ideological and professional education.
Article 36 The state protects the intellectual achievements and the right of honor of minors from infringement according to law.
For minors with special talents or outstanding achievements, the state, society, families and schools should create favorable conditions for their healthy development.
Thirty-seventh minors who have completed compulsory education for a specified number of years and no longer pursue further studies, relevant government departments, social organizations, enterprises and institutions shall provide vocational and technical training and create employment conditions for them according to the actual situation.
Chapter V Judicial Protection
Article 38 Minors who violate the law and commit crimes should follow the principles of education, probation and salvation, and adhere to the principle of giving priority to education and supplementing punishment.
Article 39 If a minor who has reached the age of 14 commits a crime and is not subject to criminal punishment because he is under the age of 16, his parents or other guardians shall be ordered to discipline him; When necessary, it can also be taken in for reeducation by the government.
Article 40 When handling juvenile criminal cases, public security organs, people's procuratorates and people's courts should take care of the physical and mental characteristics of minors, and may set up special institutions or designate special persons to handle them as needed.
Public security organs, people's procuratorates, people's courts and reformatories for juvenile offenders shall respect the personal dignity of criminal minors and protect their legitimate rights and interests.
Article 41 The public security organs, people's procuratorates and people's courts shall manage minors in pretrial detention separately from adults in custody.
Minors who have been sentenced by the people's court to serve their sentences shall be detained and managed separately from adults who have served their sentences.
Article 42 Cases in which minors over the age of 14 but under the age of 16 commit crimes shall not be heard in public. /kloc-cases of crimes committed by minors over 0/6 and under 0/8 are generally not heard in public.
In juvenile criminal cases, before the judgment, news reports, film and television programs and public publications shall not disclose the name, domicile and photos of the minor or information that may be inferred from the minor.
Forty-third families, schools and other relevant units should cooperate with the juvenile delinquent reformatory and other units to do a good job in education and assistance for juvenile delinquents.
Article 44 Minors who have been exempted from prosecution or criminal punishment by the people's procuratorate or who have been suspended, released from prison or served their sentences by the people's court shall not be discriminated against in resuming their studies, entering higher schools and finding jobs.
Article 45 When trying cases of inheritance, the people's courts shall protect minors' right of inheritance according to law.
When the people's court hears a divorce case, if both parties to the divorce have disputes over raising minor children and cannot reach an agreement, it shall make a judgment according to the principle of protecting the rights and interests of children and the specific circumstances of both parties.
Chapter VI Legal Liability
Article 46 If the legitimate rights and interests of minors are infringed, the infringed person or his guardian has the right to request the relevant competent department to handle it, or bring a lawsuit to the people's court according to law.
Article 47 Whoever infringes upon the legitimate rights and interests of minors and causes property losses or other losses or damages to minors shall make compensation or bear other civil liabilities according to law.
Forty-eighth schools, kindergartens, nurseries, teachers and staff of underage students and children corporal punishment or corporal punishment in disguised form, if the circumstances are serious, they shall be given administrative sanctions by their units or higher authorities.
Forty-ninth enterprises, institutions and individual industrial and commercial households illegally recruit minors under the age of sixteen, the labor department shall order them to make corrections and impose a fine; If the circumstances are serious, the business license shall be revoked by the administrative department for industry and commerce.
Fiftieth commercial dance halls and other places that are not suitable for minors' activities allow minors to enter, and the relevant competent departments shall order them to make corrections and may impose a fine.
Article 51 Whoever sells, rents or otherwise disseminates obscene books, newspapers, periodicals, audio-visual products and other publications to minors shall be severely punished according to law.
Article 52 Whoever infringes upon the personal rights or other lawful rights of minors and constitutes a crime shall be investigated for criminal responsibility according to law.
Whoever maltreats a minor family member, if the circumstances are bad, shall be investigated for criminal responsibility in accordance with the provisions of Article 182 of the Criminal Law.
Judicial personnel who abuse minors under supervision in violation of regulatory laws and regulations shall be investigated for criminal responsibility in accordance with the provisions of Article 189 of the Criminal Law.
Those who refuse to support minors because they have the obligation to support them, if the circumstances are bad, shall be investigated for criminal responsibility in accordance with the provisions of Article 183 of the Criminal Law.
Anyone who drowns an infant shall be investigated for criminal responsibility in accordance with the provisions of Article 132 of the Criminal Law.
Whoever fails to take measures knowing that the school building is in danger of collapse, resulting in the collapse of the school building and casualties, shall be investigated for criminal responsibility in accordance with the provisions of Article 187 of the Criminal Law.
Article 53 Whoever instigates minors to commit crimes shall be given a heavier punishment according to law.
Whoever lures, instigates or forces minors to take or inject drugs or engage in prostitution shall be severely punished according to law.
Article 54 If a party refuses to accept the decision on administrative punishment made in accordance with this Law, he may first apply for reconsideration to the administrative organ at the next higher level or the administrative organ prescribed by relevant laws and regulations; If he refuses to accept the reconsideration decision, he may bring a lawsuit to the people's court; You can also bring a lawsuit directly to the people's court. The relevant laws and regulations shall apply to the administrative organ for reconsideration first, and those who refuse to accept the reconsideration decision and then bring a lawsuit to the people's court shall be handled in accordance with the relevant laws and regulations.
If a party fails to apply for reconsideration, bring a lawsuit to the people's court or perform the decision on administrative punishment within the time limit, the organ that made the decision on punishment may apply to the people's court for compulsory execution, or enforce it according to law.
The control period is more than three months and less than two years. The combined punishment for several crimes shall not exceed three years.
three
four
five
The object of probation must be a criminal sentenced to criminal detention or imprisonment of not more than three years, and a criminal sentenced to imprisonment of not less than three years. Because of its serious crime and great social harm, it is not suitable for social execution, so probation cannot be applied.
2. Criminals who apply probation must have minor crimes and good repentance, and will not really harm society again.
3. According to the criminal law of our country, probation cannot be applied to recidivists. This is because recidivism is persistent, subjective and dangerous.
If a criminal sentenced to probation is sentenced to an additional punishment in addition to the principal punishment, the additional punishment shall still be executed, and shall not be affected by the probation of the principal punishment.
The probation period of probation refers to a certain period of time for investigating criminals who have been suspended. The probation period of probation for criminal detention is not less than 1 year from the original sentence, but not less than 2 months. The probation period of probation for fixed-term imprisonment is more than 5 years from the original sentence, but not less than 1 year.
10 In economic exchanges, those who give state functionaries property in a relatively large amount in violation of state regulations, or those who give state functionaries kickbacks or handling fees in various names in violation of state regulations, shall be punished as bribery.
It is not a bribe to give property to a state functionary because of extortion without obtaining illegitimate benefits.
Article 390 Whoever commits the crime of accepting bribes shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; Whoever seeks illegitimate interests by bribery, if the circumstances are serious or cause heavy losses to the interests of the state, shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and may also have his property confiscated.
If a briber voluntarily confesses to taking bribes before being prosecuted, the punishment may be mitigated or exempted.
Article 391 Whoever gives money or property to a state organ, a state-owned company, an enterprise, a public institution or a people's organization for the purpose of seeking illegitimate interests, or who, in economic exchanges, violates state regulations and gives kickbacks or service fees in various names, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
If a unit commits the crime mentioned in the preceding paragraph, 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 preceding paragraph.
Article 392 Whoever introduces bribes to state functionaries, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.
If a briber voluntarily introduces a bribe before being prosecuted, the punishment may be mitigated or exempted.
Article 393 Where a unit pays bribes for illegitimate interests, or violates state regulations by giving kickbacks or handling fees to state functionaries, if the circumstances are serious, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible for it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention. If the illegal gains from bribery are owned by individuals, they shall be convicted and punished in accordance with the provisions of Articles 389 and 390 of this Law.
I'm not sure about the answers to other short questions, so I'm sorry I can't answer them.