[case]
Defendant: Liu, male, aged 3/kloc-0, farmer.
199 1 June, the defendant wrote to a local professional, "Lend me 30,000 yuan to buy a car. Five days later, you meet me in a park at 5: 40 pm. Don't bring money or others, be careful of your daughter. " Five days later, the defendant came to a park at his own time and saw a man waiting for someone by the rockery with a bag. When he tried to get close to the man, he found that there were many tourists in the park, and people often appeared beside the rockery. So he walked in the park for about three hours, but he didn't go near the man. He finally gave up, walked to the gate of the park and was captured by the public security organs.
[question]
How to identify and deal with the suspension of crime?
[verdict]
The court ruled that the defendant Liu's behavior belonged to voluntarily giving up the crime, because he could approach or contact the victim, but he gave up voluntarily in the end, which effectively prevented the occurrence of the criminal result and conformed to the provisions of China's criminal law on the suspension of crime, so the defendant's behavior belonged to the suspension of crime.
[Legal Analysis]
According to Article 24 of China's Criminal Law, the so-called crime suspension refers to the act of automatically giving up the crime or automatically and effectively preventing the crime from happening in the process of committing a crime. To constitute a crime suspension, the following elements must be met: First, the crime must be stopped during the crime, that is, the crime suspension can only occur in the preparation, implementation and implementation of the crime, but before the crime results. In other words, only when the crime is stopped during the preparation to the completion of the crime can the crime be stopped. Secondly, it is necessary to automatically give up the crime or automatically prevent the crime from happening. The so-called automatic cessation of crime means that the actor stopped the activities that could have been carried out out out of his own will. Thirdly, it is necessary to completely stop the crime or effectively prevent the occurrence of criminal results. The so-called complete cessation of crime means that the perpetrator has given up the idea of completing the crime without implementing it. It can be seen that the suspension of crime is also the unity of subjective and objective: subjectively giving up intention, objectively stopping crime or effectively preventing the occurrence of criminal results, and only in this way can we determine whether it is a suspension of crime. If the suspension of the crime has not caused damage, it shall be exempted from punishment; If damage is caused, the punishment shall be mitigated.
From the above analysis of the conditions for the establishment of criminal suspension, we believe that Liu's behavior does not meet the conditions for the establishment of criminal suspension, but only meets the basic characteristics of attempted crime. Because: the defendant Liu gave up the crime because of the unfavorable situation at the crime scene and was forced to give up because of objective unfavorable factors, not because the defendant himself had the will to stop possible activities. The defendant found that there were many tourists in the park and people often appeared near the rockery. Therefore, the defendant was stopped or afraid that he could not complete the crime and stopped committing the crime. This is not a cessation of crime, but an attempted crime, so the court's decision is wrong.
Thirteen, * * * same crime
[case]
Defendant Li, male, aged 50, is an assistant judge in our hospital.
Defendant Zhao, female, 48 years old, a textile worker, married Defendant Li.
1July, 990, Yu, a bank cadre in a county, was arrested according to law for misappropriating the funds of his unit. Yu's wife, Xu, found Zhao, a good friend of the same factory, and asked Zhao to find her husband and defendant Li to help him find a way to get Yu out, and said that he would like to give him a big thank you. When Zhao came home, he told Li about it. Li refused to say, "I don't have this case. I can't do it. " Zhao was very angry. He called Li useless and was so stubborn that he didn't want money to be delivered to his door. Li still refused, saying, "It's not that I don't want money, but that I can't, or I'll go to jail." After hearing this, Zhao burst into tears and demanded a divorce from Li. After listening, Li said, "How much do you think she is willing to pay?" After going to work, Zhao told Xu that after Xu returned home, he took out 5,000 yuan in cash hidden at home and was not detected by the procuratorate. He borrowed 5,000 yuan from the employees and neighbors of the same factory and sent it to Zhao's home that night. Zhao and Li received cash 1 ten thousand yuan. After the defendant Li got the money, he tried his best to let Yu's case be handled by himself. When the defendant Yu was arraigned, he sent away the accompanying clerk and told Yu how to answer questions in court. One of the employees who borrowed money from Xu wrote a letter of accusation to the court leader where Li was located because of disagreement with Zhao. The leaders of the hospital talked with Li, and Li truthfully confessed the fact of accepting bribes. 10000 yuan was refunded by the defendants Zhao and Li when the stolen money and goods were returned in February, 990.
[question]
* * * What are the basic characteristics of the same crime? What are the forms of accomplice?
[verdict]
The court ruled that the defendant Li was an identified person and the defendant Zhao was an unidentified person. This case belongs to a case in which an unidentified person instigates an identifiable person to commit a joint crime. Therefore, according to Li's behavior, Zhao should be convicted and punished for accepting bribes.
[Legal Analysis]
According to Article 25 of the Criminal Law, the so-called * * * accomplice is a crime intentionally committed by two or more persons. * * * The basic characteristics of the same crime are: first, as far as the subject of the crime is concerned, it must be two or more persons who have reached the age of criminal responsibility and are capable of committing the crime together. Secondly, from the objective aspect of crime, all criminals must have the same criminal behavior. In other words, the actions of the same criminal all point to the same crime, and they are interrelated and cooperate with each other, thus forming a unified whole of criminal activities, and there is a causal relationship between everyone's actions and criminal results. * * * has * * the same behavior as the criminal behavior, or * * * has the same omission and the combination of action and omission. According to the different status and role of accomplices in criminal activities, accomplices can be divided into principal, accessory, coerced accomplice and instigator. The so-called principal offender is a criminal who organizes and leads a criminal group to carry out criminal activities or plays a major role in the same crime. Accessory refers to a criminal who plays a secondary or auxiliary role in the same crime. Coerced accomplice refers to a criminal who is coerced to participate in a crime. An instigator refers to a person who intentionally instigates others to commit a crime.
To sum up, we believe that the criminal acts of Zhao and Li belong to the same crime. Because: First of all, subjectively, when the defendant Zhao asked the defendant Li to use his position to release him and accept a bribe from his wife Xu, Li began to disagree. After repeated persuasion and persecution by Zhao, Li finally agreed. At this point, the crime of accepting bribes has constituted intentional. Secondly, from an objective point of view, the defendant Zhao took advantage of the convenience of the defendant Li to accept other people's property, and the defendant Li took advantage of his position to seek illegal interests for others, indicating that his actions have formed the crime of accepting bribes with both division of labor and interconnection. Although the defendant Zhao did not have the status of a state functionary, he took advantage of his position to collude with the defendant Li who had the status of a state functionary. Therefore, he belongs to the crime of accepting bribes and should be convicted and sentenced for accepting bribes.
Therefore, the judgment of the people's court is correct.
Fourteen, combined punishment for several crimes
[application]
Defendant Pan, male, aged 32.
In the name of working in Guangxi, the defendant Pan deceived Wang, a young woman from Wanlan Township, XX County, to a county in Guangxi and sold it to Li, a villager in the county for 3,500 yuan. Because the villagers needed proof of the young woman's marital status, they paid 2,000 yuan first, and Pan would make it up after getting the certificate 1500 yuan. After Pan returned to XX county, he found Tian (dealt with in another case) and asked him to help privately carve the official seal of "Wanlan Township Government of XX County". After carving, Pan stamped the fake certificate written in advance and destroyed the seal. The latter two took the certificate to Li, a county in Guangxi, and made up 1500 yuan.
[question]
How to correctly distinguish one crime from several crimes? How many types of combined punishment for several crimes are there?
[verdict]
The court ruled that the defendant Pan sold the trafficked young woman Wang to others for the purpose of selling, which constituted the crime of trafficking in women. Although the defendant Pan had the act of privately carving the official seal and forging the proof of marital status, his behavior did not constitute the crime of forging the seal alone, because it was only a means for Pan to defraud Li 1500 yuan, and the defendant Pan also constituted the crime of fraud.
[Legal Analysis]
Several crimes are relative to one crime. One crime refers to the situation that one person commits one crime, and several crimes refer to the situation that one person commits more than two crimes. Crimes can be divided into substantive crimes and statutory crimes, in which substantive crimes include imaginative joinder, aggravated consequences and subsequent crimes, while statutory crimes usually include joint crimes and recidivists. The punishment for one crime is essentially a combination of several crimes, which are treated as one crime, including serial crime, implicated crime and absorption crime. According to different standards, several crimes can be divided into several crimes of the same kind and several crimes of different kinds, as well as combined punishment and non-combined punishment for several crimes. In our country, the standard of distinguishing one crime from several crimes usually adopts the "crime constitution standard", that is to say, one crime and several crimes should be determined by the number of crime constitutions, and one crime with one crime constitution means that one crime and several crimes are punished together.
Combined punishment for several crimes is one of the basic systems of penalty application, which refers to the system that the people's court decides the penalty to be executed according to the statutory principle of combined punishment for several crimes and the penalty calculation method after convicting and sentencing a person for several crimes within the statutory limits. It has the following characteristics: first, it must be that an actor has committed several crimes or committed independently; Second, the crime of one person must occur within the statutory time limit; Third, according to the principle of combined punishment for several crimes, the scope and methods of combined punishment, we must be convicted and sentenced separately and decide the penalty to be executed. The applicable period of combined punishment for several crimes in China's criminal law and the basic contents of different methods mainly include: first, if the previous person commits several crimes, the combined punishment shall be implemented according to the principle stipulated in Article 69 of the Criminal Law; Second, after the verdict is pronounced, before the execution of the penalty, if it is found that the sentenced criminal has other crimes that were not pronounced before the verdict was pronounced, the punishment shall be combined according to the method of "combining first and mitigating later" stipulated in Article 70 of the Criminal Law; Third, after the verdict is pronounced, if the sentenced criminal commits another crime before the execution of the penalty is completed, the punishment shall be combined according to the method of "reducing first and then merging" stipulated in Article 7 1 of the Criminal Law; Fourth, if a crime that has been suspended commits a new crime within the probation period of probation, or if other crimes have not been decided before the judgment is pronounced, it shall be punished in accordance with the provisions of Article 69 of the Criminal Law; Fifth, if a criminal who is released on parole commits a new crime during the parole period, he shall be punished in accordance with Article 7 1 of the Criminal Law. If other crimes are found before sentencing, they shall be punished in accordance with the provisions of Article 69 of the Criminal Law.
Based on the analysis of the above cases, we believe that the defendant Pan's behavior should constitute two crimes: the crime of abducting and selling women and the crime of fraud. The reasons are as follows: First, the defendant Pan cheated his cousin Wang to Guangxi and sold it to Li, which constituted the crime of abducting and selling women. According to Article 240th of China's Criminal Law, one of the acts of abducting, abducting, buying and transporting women for the purpose of selling, regardless of whether the perpetrator actually makes a profit, should constitute the accomplished crime of abducting and selling women. Secondly, after completing the crime of abducting and selling women, the defendant Pan forged the marital status certificate of Wang with his personal official seal for the purpose of defrauding the remaining 1500 yuan, and defrauded Li 1500 yuan, which fully met the constitutive requirements of the crime of fraud and should be considered as the crime of fraud. As for the act of engraving the official seal privately, it does not constitute a crime alone. As a means, it constitutes an implicated offender with the purpose of defrauding others of money, and should be punished as fraud.
The defendant Pan's behavior constitutes the crime of trafficking in women and fraud, on the grounds that according to Article 69 of the Criminal Law, the defendant Pan's behavior can be divided into two stages. The first stage is the crime of abducting and selling women, and the second stage is the crime of fraud. The defendant intentionally committed two acts for two reasons, which constitute two crimes, and both crimes were committed before being sentenced, so he should be punished for several crimes in accordance with the provisions of Article 69 of the Criminal Law.