165438+125 October, Cao Ping's sister Cao Ying told this newspaper that they had recently received a notice of the result of the Supreme People's Procuratorate's criminal appeal, and the Supreme People's Procuratorate maintained its decision not to approve the arrest, and they would continue to appeal through other channels.
The newspaper pointed out that the dilemma of Cao Ping's parents in chasing kidnappers mainly lies in the current dispute over the time limit for prosecution and the applicable law. If criminal law 1979 is applied, the prosecution period of the case has expired; If the Criminal Law 1997 is applied, the case may still be under prosecution.
Five months after the child was abducted, the biological parents insisted on pursuing "foster mother"
1988 65438+ 10/0, Cao Ping was kidnapped by Qin Mouying.
At that time, Qin Mouying came to Cao's house to find a job as a nanny under a pseudonym, and took care of her just five months old. But the next day, Qin Mouying "disappeared" with her children. After the parents called the police, they also launched a search for relatives and friends, but they never found Cao Ping, which brought them a great physical and mental blow.
Cao Ying said that their family was well-off and their parents were workers, which could have given Cao Ping a better living environment, especially an educational environment. But I didn't expect Cao Ping to be kidnapped and didn't even go to high school. This is also the pain in parents' hearts.
The newspaper previously reported that Qin Mouying took her five-month-old son home to raise on June 5438+0988 65438+ 10/0, knowing that she could not have children, and changed her name to Li Momin.
At that time, although the Guilin police immediately filed a case for investigation of the abducted case and issued an investigation report, they never found the criminal suspect, and even did not take compulsory measures against Qin Mouying. This has also become one of the difficulties for Cao Ping's parents to investigate their responsibilities in the future.
After Cao Ping disappeared, Guilin Public Security Bureau issued an investigation report. The pictures in this article are provided by the respondents.
In May 2020, according to the clues released by the Ministry of Public Security, the blood sample retained by the informant was consistent with the blood sample DNA comparison data of Li Momin, a villager in Yangshuo County, Guilin City, and it was a father-son relationship. According to the clue, the public security organ investigated the village where Li Moumin lived and his adoptive parents, and found that Qin Mouying, Li Moumin's adoptive mother, was suspected of committing a major crime, and then the case was detected.
On May 29th, 2020, after 32 years of kidnapping, Cao Ping met his family.
Cao Ying said that after knowing each other, he was not close to Cao's family who had been abducted since childhood, and his willingness to investigate their responsibilities was not strong. However, this is different from their persistent pursuit of kidnappers, and the harm caused by the abduction of children to their parents is irreparable.
According to the "Notice of Criminal Appeal Results in the Supreme People's Procuratorate" provided by Cao Ying, the Supreme People's Procuratorate found out that on June 5438+February 65438+April, 2020, the public security organ transferred the case of Qin Mouying's abduction of children to the Xiangshan District People's Procuratorate in Guilin for approval.
The People's Procuratorate of Xiangshan District, Guilin City believes that Qin Mouying's abduction of children has exceeded the prosecution period and can no longer be investigated for criminal responsibility. On June 5438+February 3, 20201day, the People's Procuratorate of Xiangshan District of Guilin made a decision not to approve the arrest of Qin Mouying.
In the past two years, Cao Ping's biological parents refused to accept the above-mentioned decision not to approve the arrest, and appealed to the People's Procuratorate of Guilin City and the People's Procuratorate of Guangxi Zhuang Autonomous Region successively.
Since then, the People's Procuratorate of Guilin City and the People's Procuratorate of Guangxi Zhuang Autonomous Region have made notices on the results of relevant criminal complaints. They all believe that Qin Mouying's child abduction case has exceeded the prosecution period, and the original decision not to approve the arrest is correct. The complainant's appeal grounds cannot be established and the review is terminated.
This year, Cao Ping's parents filed a complaint with the Supreme People's Procuratorate on the grounds that "the prosecution period of crime of trafficking in children should start from the victim's 14 year old, and the statute of limitations of the Criminal Law 1997 applies to this case, and the prosecution period has not expired".
Debate on the time limit for prosecution and applicable law
The Supreme People's Procuratorate believes that the focus of the dispute in this case is when the prosecution period of Qin Mouying's abduction of children should start, and whether the prescription of criminal law 1979 or criminal law 1997 should be applied.
Is Qin Mouying's abduction of children a continuous crime or the end of the crime?
Cao Ping's parents claimed that Article 78 of the Criminal Law of 1979 stipulates that "if a criminal act continues or is continuing, it shall be counted from the date when the criminal act ends", while crime of trafficking in children "abducted a minor under the age of 14 and left his family or guardian", so crime of trafficking in children cannot be regarded as "the end of the crime", but should be away from the trafficked person 10. The original victim Cao Pingyu was16,5438+0 August 14 years old. At this time, 1997 criminal law has been promulgated and implemented, and the provisions of 1997 criminal law on the limitation of prosecution should be applied.
According to the above-mentioned notice of criminal appeal result, the Supreme People's Procuratorate believes that Article 78 of the Criminal Law 1979 "If the criminal act is in a continuous or continuous state, it shall be counted from the date when the criminal act ends", that is, the criminal act is in a continuous or continuous state. Such as illegal detention, the criminal suspect's detention behavior and the victim's personal freedom are restricted at the same time, and this kind of crime is generally called serial crime.
Crime of trafficking in children abducted minors under the age of 14 to leave their families or guardians. Once the perpetrator's kidnapping leads the victim to leave his family and guardian, the crime is completed. Only if the illegal state of the victim leaving his family and guardian persists, it should be a national crime.
Therefore, the Supreme People's Procuratorate believes that the case in the original trial belongs to the situation that Article 78 of the Criminal Law of 1979 stipulates that "the period of prosecution shall be counted from the date of the crime", and the period of prosecution shall be counted from the time when Qin Mouying took Cao Ping away from Cao Jia. According to 1979 criminal law, in the original case, Qin Mouying abducted a five-month-old baby and was suspected of crime of trafficking in children. The maximum legal penalty is five years' imprisonment.
1979 article 76 of the criminal law stipulates that "prosecution will not be pursued after the following time limit: if the statutory maximum penalty is less than five years of fixed-term imprisonment, five years will be counted; If the statutory maximum penalty is fixed-term imprisonment of not less than five years but not more than ten years, ten years shall be counted; If the statutory maximum penalty is fixed-term imprisonment of not less than 10 years, after 15 years; If the maximum legal punishment is life imprisonment or death penalty, after 20 years. If it is necessary to sue after 20 years, it must be reported to the Supreme People's Procuratorate for approval. "
In the original case, Qin Mouying committed crime of trafficking in children in 1988. By 2020, Qin Mouying has been arrested for 32 years, exceeding the prosecution period of crime of trafficking in children 10. According to the Criminal Law 1979, Qin Mouying should not be prosecuted again.
Then, according to the interpretation of the Supreme Law, did the case exceed the limitation of prosecution? Should the criminal law 1979 or 1997 be applied?
Cao Ping's parents claimed that the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of prescription in criminal law Provisions stipulated: "For criminal cases tried by people's courts after 1 9971kloc-0/0/0/0, The relevant provisions on the specific application of the criminal law before or after the amendment are as follows: Article 1: For the criminal acts committed by the perpetrator before1September 30, 997, the provisions of Article 77 of the Criminal Law before the amendment shall apply if the public security organ of the people's procuratorate or the state security organ files a case for investigation or the people's court accepts the case, and the perpetrator evades investigation or trial and exceeds the time limit for prosecution. " Among them, "whether it has exceeded the limitation of prosecution" should be understood as "this case has exceeded the limitation of prosecution stipulated in articles 1997 and 10 of the criminal law when the new criminal law came into effect."
Cao Ping's parents believe that the original case occurred in June 1988+ 10/0. According to the criminal law of 1979, the prosecution period is ten years, which does not exceed the prosecution period of 1997 on September 30, so the prescription of 1979 should not be applied.
Notice of the Supreme People's Procuratorate Municipality on the Results of Criminal Complaints
The Supreme People's Procuratorate believes that the above-mentioned provisions in Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of prescription in criminal law Provisions clarify whether the perpetrator shall be investigated for criminal responsibility after the expiration of the prosecution period, and the provisions in Article 77 of the Criminal Law of 1979 shall apply.
At the same time, the Reply of the Ministry of Public Security on Issues Concerning the Time Limit for Criminal Prosecution on October 25th, 2000 also clearly stipulates that "according to the principle of lighter punishment, the time limit for committing criminal acts before September 30th, 1997 shall be governed by the provisions of Article 77 of the Criminal Law, that is, the people's courts, people's procuratorates and public security organs shall take compulsory measures. Therefore, the original case occurred in 1988, and the provisions of the criminal law 1979 on the limitation of prosecution should be applied.
The complainant said that he had submitted a similar case, which he could not refer to.
Cao Ping's parents submitted 20 14 criminal judgment of Liuzhou Liubei District People's Court to the procuratorate, claiming that Li Mouhua, who committed the crime 199 1, was sentenced to three years' imprisonment for crime of trafficking in children. This case is highly similar to Li's case and should be treated equally.
The Supreme People's Procuratorate's Notice of Criminal Appeal Results shows that Li Mouhua's child abduction case is 199 1. On May 22, Li Mouhua cheated the eldest son of the standard because of a contradiction with his fellow villagers, and his brother's whereabouts were unknown. 20 14 04 18 Liuzhou Liubei District Public Security Bureau transferred Li Mouhua for examination and prosecution. The People's Procuratorate of Liubei District found that Li Mouhua was detained in Pingnan County Detention Center 1996 for one month because of this case, and was released due to insufficient evidence. He fled his original residence until he was arrested on February 2, 20 14.
The Liubei District Procuratorate believes that Li Mouhua belongs to the situation that "the people's courts, people's procuratorates and public security organs are not limited by the time limit for prosecution after taking compulsory measures" as stipulated in Article 77 of the Criminal Law, and filed a public prosecution against Li Mouhua on June 20, 200014. On June 65438+February 1 1 day of the same year, Liu Bei District Court sentenced Li Mouhua to three years' imprisonment for crime of trafficking in children.
The Supreme People's Procuratorate believes that the evidence of Qin Mouying's abduction of children proves that after his father reported the case in June 1988+ 10/0, although the Guilin public security organ immediately filed an investigation on the abduction of children and issued an Investigation Report, the criminal suspect has not been found and no compulsory measures have been taken against Qin Mouying. "The difference between the two cases is that Li Mouhua was taken compulsory measures and Qin Mouying was not taken compulsory measures. Therefore, Li Mouhua's child abduction case belongs to Article 77 of the Criminal Law 1979. " If a people's court, a people's procuratorate or a public security organ evades investigation or trial after taking compulsory measures, it shall not be limited by the time limit for prosecution, and the judicial organ shall correctly investigate it. Qin Mouying's child abduction case does not belong to this situation, and it cannot be handled with reference to Li Mouhua's child abduction case. "
To sum up, the Supreme People's Procuratorate believes that there is nothing wrong with the decision of the Xiangshan District People's Procuratorate of Guilin not to approve the arrest. The plaintiff's complaint cannot be established, and our court does not support it. According to the provisions of Article 18 of the Provisions of the People's Procuratorate on Handling Criminal Appeal Cases, the case is now closed.
Regarding the above results, Cao Ying said that she and her parents insisted that Qin Mouying should be investigated for criminal responsibility and would appeal through other channels.