Case: Gao (male) and Qian (female) met on the Internet, and then developed into an online dating relationship. During this period, Qian learned some secrets of Gao and defrauded Gao of 2, yuan in cash on the grounds of lack of money to open a shop.

after meeting, Gao was disappointed with Qian's appearance, and soon after getting along, he felt that she was eccentric, so he decided to break up the relationship. However, Qian was entangled in all kinds of ways, and finally threatened to disclose the hidden feelings and asked Gao to pay 5 million yuan in compensation. Gao made a pretence to raise money and actually planned to get rid of Qian.

Later, Gao found his close friend Xia and Zongmou, who knew Qian, and * * * tricked Qian into a lake cabin, first choked him out, and then threw him into the lake to drown. Afterwards, Gao gave Xia and Zong 2, yuan each as a reward.

According to the division of labor in advance, Zongmou sent a WeChat to lure Qianmou to the lakeside cabin. However, Zongmou learned that Qian was afraid of being arrested after the accident and called Gao to say:? I don't want to be involved anymore. One day online dating for ten days. Well, don't kill her either. ? Gao said with great anger:? You are so disloyal, forget it, leave me alone! ? Zongmou immediately called Qian, intending to let him leave the cabin, but Qian's mobile phone was turned off.

after Gao and Xia arrive at the cabin, Gao looks for a chance to hold Qian, and Xia pinches Qian's neck. After Qian could not struggle, both of them mistakenly thought that Qian was in a coma (actually dead), so they were ready to tie a stone to Qian and throw him into the lake to drown. At this point, Xia also suddenly repented and said to Gao:? Forget it, just teach her a lesson. ? Gao said:? All right, you're done. You go! ? After Xia left, when Gao tied stones on Qian, he found that Qian had died. In order to annihilate the evidence, Gao threw Qian's body into the lake.

when Gao returned to the cabin, he found Qian's LV handbag (worth 5, yuan), which contained 5, yuan in cash, ID card and a savings card. Gao kept the cash for himself.

three days later, Gao gave the LV bag to his ex-girlfriend Yin. Yin found that the bag was not new and had no packaging. Q? Was it stolen or cheated? Gao said:? Don't ask where the bag came from. I also have a savings card and ID card here. The person on the ID card is very similar to you. After you take the card and ID card to the bank counter to withdraw money, all the money will be yours. ? Although Yin didn't know all the truth, he could guess that both the bag and the card were probably the proceeds of Gao's crime. However, because of his love for money, he accepted the handbag and pretended to be Qian and took out 2, yuan from the bank counter. (215/ 4/2)

Question:

Please analyze the criminal responsibilities of Gao, Xia, Zong and Yin according to the relevant provisions of the Criminal Law and the principles of the Criminal Law (it is required to explain the reasons, and different opinions and reasons can be answered at the same time).

Reference answer

Test center * * * is the same crime; Interruption of crime; Crime of intentional homicide; Theft; Concealing and concealing the offense of crime; Crime of credit card fraud

Answer

(1) Criminal responsibility of Gao

1. Gao convicted Qian of intentional homicide. Whether to establish the imaginative concurrence of intentional homicide accomplished or attempted intentional homicide with the crime of negligent death depends on how to deal with the realization of constitutive requirements in advance.

Answer 1: Although the results of the constitutive requirements occur ahead of time, the strangulation itself is in imminent danger of causing death. It can be concluded that the murder was committed when the neck was strangled, and it existed intentionally when the execution was started. Therefore, Gao should bear the criminal responsibility for the death of Qian.

Answer 2: When Gao and Xia pinched Qian's neck, they just wanted to make Qian unconscious. They didn't realize that the act of pinching the neck would lead to Qian's death, that is, they lacked the intention of accomplishment, so they could not be responsible for the accomplishment of intentional homicide. They could only assume that Gao's behavior was the imaginative concurrence of attempted intentional homicide and negligent death.

2. Regarding the nature of taking Qian's handbag and 5, yuan in cash, the key lies in how to identify the possession of the deceased.

Answer 1: Gao was guilty of embezzlement of Qian's handbag and 5, yuan in cash, on the grounds that the deceased did not possess his belongings before his death, so the handbag and 5, yuan in cash belonged to forgetting things.

answer 2: Gao committed theft against Qian's handbag and 5, yuan in cash, on the grounds that the deceased continued to possess the property before his death, and Gao's behavior belonged to the theft of transferring the property occupied by others to his own possession, thus committing theft.

3. The nature of giving Qian's savings card and ID card to Yin to withdraw 2, yuan.

answer 1: the instigator of the crime of credit card fraud. Because Gao did not steal the credit card, but encroached on the credit card and used the credit card picked up by others to withdraw money, it belonged to fraudulent use of other people's credit cards, and Gao instigated Yin to make fraudulent use, so it belonged to the instigator of the crime of credit card fraud.

answer 2: it constitutes theft. Because Gao is stealing a credit card, stealing a credit card and using it, whether it is directly used by himself or used by a third party, it should be regarded as theft.

(2) Xia's criminal responsibility

1. Xia participated in the murder plot and pinched Qian's neck, which constituted the crime of intentional homicide. (or: Xia Mou established the imaginative concurrence of attempted intentional homicide and negligent death for the same reason as Gao Mou)

2. As Qian Mou's death occurred, Xia Mou's behavior was the cause of Qian Mou's death, and Xia Mou could not establish a criminal suspension.

(3) criminal responsibility of Zongmou

Zongmou participated in the plot of * * *, and lured Qianmou to the lakeside cabin, and was convicted of intentional homicide. Although Zongmou didn't act later, there was causality between his former behavior and Qian's death, and he didn't break away from the criminal relationship. Although Zongmou called Qian, the suspension failed to effectively prevent the result from happening, and the crime suspension could not be established.

(4) the criminal responsibility of Yin Mou

1. Yin Mou constituted the crime of concealing and concealing. Because objectively speaking, the package belongs to Gao's criminal proceeds, and Yin's behavior belongs to the act of concealing and concealing the criminal proceeds; Yin realized that it might be the proceeds of Gao's crime, so he had the conditions to know.

1. The nature of Yin's behavior of taking out 2, yuan as Qian.

answer 1: it constitutes the crime of credit card fraud. Because Yin belongs to the fraudulent use of other people's credit cards, it fully meets the constitutive requirements of credit card fraud.

answer 2: it constitutes theft. Although Yin did not steal the savings card, he realized that the savings card may be stolen by Gao and used it. It belongs to the inherited crime of * * *, so it should be punished as theft.

The difficulties in this topic include * * * the suspension of the same crime, the difference between the completed crime and the suspension of the crime, the misunderstanding of causality, the difference between the crime of embezzlement and the crime of theft, the implicated offense, and the behavior that cannot be punished afterwards.

1.*** In order to establish a crime cessation, it is required not only to give up the criminal act, but also to break away from the relationship with the * * * offender, so as to effectively prevent the occurrence of the result. Therefore, it is not enough for the accomplice to simply leave the criminal gang to stop his behavior, and he must effectively stop the criminal behavior of other accomplices.

2. On the issue of misunderstanding of causality, there are concrete coincidence theory and legal coincidence theory. According to the theory of concrete conformity, it should be analyzed in detail. The actor strangled others when he didn't kill intentionally, resulting in death, which constituted the crime of negligent death rather than intentional homicide. Did the actor kill intentionally out of murder? Dead bodies? The act belongs to the object and cannot be attempted, so it should be recognized as attempted intentional homicide. According to the theory of legal conformity, the perpetrator intentionally commits murder out of murder, and the victim eventually dies. The perpetrator's behavior as a whole constitutes the crime of intentional homicide, and the misunderstanding of causality does not affect the characterization of the behavior.

3. Whether the property of the deceased is owned or not is controversial in academic circles. Related to this, there is a dispute between embezzlement and theft. If you think that the property of the deceased is still the owner, that is, it belongs to its heir, then the illegal possession of its property constitutes theft. If the property of the deceased is considered as lost forgetting things, the illegal possession of property constitutes the crime of embezzlement.

4. according to the law, stealing a credit card and using it constitutes theft rather than credit card fraud. Embezzlement and use of credit cards constitutes the crime of credit card fraud. This test center and the act of taking the property of the deceased as one's own have also formed two views.

5. As a common test site, concealing and concealing the offense of a crime mainly examines the theory of afterwards unpunished behavior, that is, the act of concealing and concealing one's criminal gains does not constitute a crime. However, in this case, the object of Yin's concealment and concealment is Gao's criminal gains, which constitutes this crime.