(Adopted at the 22nd Meeting of the Standing Committee of the Tenth NPC on June 29th, 2006)
1. Amend Article 134 of the Criminal Law to read: "Whoever violates the relevant provisions on the safety management of production and operation and causes heavy casualties or other serious consequences shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are especially bad, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
"Whoever forces others to take risks in violation of regulations, causing heavy casualties or other serious consequences, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are particularly bad, they shall be sentenced to fixed-term imprisonment of more than five years. "
2. Article 135 of the Criminal Law is amended as: "If the facilities or conditions for safe production do not meet the requirements stipulated by the state, resulting in heavy casualties or other serious consequences, the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are particularly bad, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. "
3. One article is added after Article 135 of the Criminal Law as one of Article 135: "Whoever holds large-scale mass activities in violation of safety management regulations and causes heavy casualties or other serious consequences, the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are particularly bad, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. "
4. One article is added after Article 139 of the Criminal Law as one of Article 139: "After a safety accident occurs, the person responsible for reporting fails to report or falsely report the accident, thus delaying accident rescue. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. "
5. Article 161 of the Criminal Law is amended as: "If a company or enterprise that has the obligation to disclose information according to law provides false financial and accounting reports to shareholders and the public or conceals important facts, or fails to disclose other important information that should be disclosed according to law, which seriously damages the interests of shareholders or others, or there are other serious circumstances, the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined not less than 20,000 yuan but not more than 200,000 yuan."
6. One article is added after Article 162bis of the Criminal Law as Article 162bis: "If a company or enterprise conceals property or fictitious debts or transfers or disposes of its property in other ways, which seriously damages the interests of creditors or others, the person in charge who is directly responsible for it 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, and shall also, or shall only, be fined not less than 20,000 yuan but not more than 200,000 yuan."
7. Amend Article 163 of the Criminal Law to read: "Employees of companies, enterprises or other units who take advantage of their positions to ask for or illegally accept other people's property and seek benefits for others, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated.
"Staff members of companies, enterprises or other units who, in economic exchanges, take advantage of their positions and violate state regulations, accept kickbacks and service fees in various names, which are owned by individuals, shall be punished in accordance with the provisions of the preceding paragraph.
Personnel engaged in public service in state-owned companies, enterprises or other state-owned units and personnel appointed by state-owned companies, enterprises or other state-owned units to engage in public service in non-state-owned companies, enterprises or other units shall be convicted and punished in accordance with the provisions of Articles 385 and 386 of this Law.
8. The first paragraph of Article 164 of the Criminal Law is amended as: "Whoever gives property to the staff of a company, enterprise or other unit for the purpose of seeking illegitimate interests, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined. "
9. One article is added after Article 169 of the Criminal Law as one of Article 169: "Directors, supervisors and senior managers of a listed company who manipulate the listed company by taking advantage of their positions and commit any of the following acts, thus causing heavy losses to the interests of the listed company, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; Whoever causes particularly heavy losses to the interests of listed companies shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and fined:
"(1) Providing funds, commodities, services or other assets to other units or individuals free of charge;
"(2) Providing or accepting funds, commodities, services or other assets on obviously unfair terms;
"(3) providing funds, commodities, services or other assets to units or individuals that are obviously insolvent;
"(four) to provide guarantees for units or individuals that are obviously insolvent, or to provide guarantees for other units or individuals without justifiable reasons;
"(5) Abandoning creditor's rights and assuming debts without justifiable reasons;
"(six) damage the interests of listed companies in other ways.
"If the controlling shareholder or actual controller of a listed company instructs the directors, supervisors and senior managers of the listed company to commit the acts mentioned in the preceding paragraph, they shall be punished in accordance with the provisions of the preceding paragraph.
If the controlling shareholder or actual controller of a listed company that commits the crime mentioned in the preceding paragraph is a unit, the unit 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 first paragraph.
10. One article is added after Article 175 of the Criminal Law as one of Article 175: "Whoever obtains loans, bill acceptance, letters of credit, letters of guarantee, etc. and defrauds the funds of banks or other financial institutions, thus causing heavy losses to banks or other financial institutions or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or shall only be fined; Whoever causes particularly heavy losses to banks or other financial institutions or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
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.
1 1. Amend Article 182 of the Criminal Law to read: "Whoever manipulates the securities and futures markets under any of the following circumstances, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined:
"(a) alone or in collusion, concentrate the advantages of capital, shareholding or position, or use the advantages of information to jointly or continuously buy and sell, and manipulate the trading price or trading volume of securities and futures;
"(2) colluding with others to trade securities and futures with each other at the time, price and manner agreed in advance, which affects the trading price or volume of securities and futures;
"(3) buying and selling securities between accounts under its actual control, or buying and selling futures contracts on its own, which affects the trading price or trading volume of securities and futures;
"(4) manipulating the securities and futures markets by other means.
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.
12. One article is added after Article 185 of the Criminal Law as one of Article 185: "If a commercial bank, a stock exchange, a futures exchange, a securities company, a futures brokerage company, an insurance company or any other financial institution violates its fiduciary duty and uses the client's funds or other entrusted or entrusted property without authorization, if the circumstances are serious, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be fined. If the circumstances are especially serious, 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 not less than 50,000 yuan but not more than 500,000 yuan.
"If public fund management institutions such as social security fund management institutions and housing provident fund management institutions, as well as insurance companies, insurance asset management companies and securities investment fund management companies use funds in violation of state regulations, the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph."
13. Amend the first and second paragraphs of Article 186 of the Criminal Law to read: "Any employee of a bank or other financial institution who issues loans in violation of state regulations and the amount is huge or causes heavy losses shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 10,000 yuan but not more than 100,000 yuan; If the amount is especially huge or especially heavy losses are caused, he shall be sentenced to fixed-term imprisonment of not less than five years and fined not less than 20,000 yuan but not more than 200,000 yuan.
Staff members of banks or other financial institutions who issue loans to related parties in violation of state regulations shall be severely punished in accordance with the provisions of the preceding paragraph.
14. Amend the first paragraph of Article 187 of the Criminal Law to read: "Any staff member of a bank or other financial institution who absorbs clients' funds without recording them, and the amount is huge or causes heavy losses, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is especially huge or especially heavy losses are caused, he shall be sentenced to fixed-term imprisonment of not less than five years and fined not less than 50,000 yuan but not more than 500,000 yuan. "
15. Amend the first paragraph of Article 188 of the Criminal Law to read: "Staff members of banks or other financial institutions who issue letters of credit or other guarantees, bills, certificates of deposit and credit certificates for others in violation of regulations, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than five years. "
16. The first paragraph of Article 191 of the Criminal Law is amended as: "Whoever knowingly commits one of the following acts, knowing that it is the proceeds of drug crimes, organized crimes of underworld nature, terrorist activities, smuggling crimes, corruption and bribery crimes, and financial fraud crimes, shall be confiscated, and shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined 100 yuan." If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than five percent but not more than twenty percent of the money laundering amount:
"(1) Providing capital accounts;
"(2) Assisting in converting property into cash, financial bills and securities;
"(3) assisting the transfer of funds through transfer or other settlement methods;
"(four) to assist the remittance of funds abroad;
"(5) concealing or disguising the source and nature of criminal proceeds and their proceeds by other means."
17. One article is added after Article 262 of the Criminal Law as one of Article 262: "Whoever organizes the disabled or minors under the age of 14 to beg by violence or coercion shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and fined. "
Article 303 of the Criminal Law is amended as: "Whoever gathers people to gamble or gamble for profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined.
"Whoever opens a casino shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or control, and shall also be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined. "
19. Amend Article 312 of the Criminal Law to read: "Whoever knowingly conceals, transfers, purchases, sells on behalf of others or conceals or disguises by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and fined. "
20. One article is added after Article 399 of the Criminal Law as one of Article 399: "A person who undertakes arbitration duties according to law intentionally violates facts and laws in arbitration activities and makes a ruling that perverts the law. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. "
Twenty-one, this amendment shall come into force as of the date of promulgation.
Crime and punishment are incompatible. The draft Criminal Law Amendment (VI) stipulates the crime of loan fraud for the first time, and adopts a cautious attitude in legislation, and the penalty is relatively light, which is the same as the penalty of the crime of loan fraud in Article 193 of the current criminal law. The punishment for criminals is "whoever causes heavy losses to banks or other financial institutions or has other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined not less than 10,000 yuan but not more than 100,000 yuan;" Whoever causes particularly heavy losses to banks or other financial institutions or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall be fined not less than 10,000 yuan but not more than 100,000 yuan. " First, the punishment is too light, which is incompatible with the harmful results of criminal acts and their illegal gains. Because the maximum penalty is only seven years' imprisonment, and the maximum fine is 654.38+10,000, it cannot cause greater deterrence to criminals. Comparatively speaking, the punishment for banks or bank staff is as high as more than five years in prison and the maximum fine is 200,000, which is incredible. It is incompatible with the current social reality of chaotic social credit and high incidence of fraudulent loans. Second, this crime must take "causing banks or other financial institutions to suffer heavy losses or other serious circumstances" as the result element. I think this regulation is likely to give many illegal acts of defrauding loans that have not caused the result elements an opportunity and give fraudsters a certain moral hazard. The fraudster may think that as long as the fraud is successful, as long as it does not cause significant losses, it will not be punished. Therefore, it is also possible to cheat loans with luck, even if it causes heavy losses. So it may be difficult to have a good legislative effect. This provision also does not meet the legislative objectives. Therefore, it is suggested (1) that "obtaining loans from banks or other financial institutions by fraudulent means such as fabricating facts or concealing the truth" is a crime, and "causing heavy losses or other serious circumstances to banks or other financial institutions" and "particularly heavy losses or other particularly serious circumstances" are two different aggravating circumstances. (2) Intensify the punishment, suggesting the maximum imprisonment of 10 year and the maximum fine of 1 10,000.
Reflections on the interpretation of the sixth amendment to the criminal law
On June 29th, 2006, the criminal law of China, which was born less than ten years ago, was revised for the sixth time, which reflected the hot issues concerned by people in recent years. In addition to reading with great respect, I want to say a few words briefly.
Article 19 1 of the Criminal Law: The crime of corruption and bribery, the crime of disturbing the order of financial management and the crime of financial fraud are added as the upstream crimes of money laundering. With the increase of anti-corruption efforts in recent years, a large number of "official hamsters" fall into the French Open every year. At present, with the rapid economic development and the imperfect social environment of democracy and the rule of law, they use their public power to seek a lot of private interests. The amount of illegal income determined by the solid material foundation of the market economy and their greed is much higher than that of Liu Qingshan and Zhang Zishan in the early days of the founding of the People's Republic of China, and even as good as drug crimes and smuggling crimes that have long been listed as upstream crimes of money laundering. They often use money and authority to "clean" illegal income through financial institutions or remit funds abroad. Most financial institutions should be well aware of this situation, and individuals who provide capital accounts for them must be more aware of it, but they just turn a blind eye for their own interests, which is not conducive to recovering state property and collecting evidence. It has been added now.
This kind of upstream crime will certainly prevent the export of corruption and bribery crimes relatively effectively. In addition, with the addition of three upstream crimes, the confiscation income of the state finance will also increase a lot. It is quite a lot to impose a fine of more than 5% and less than 20% of the money laundering amount.
Article 135 of the Criminal Law adds the case of "holding large-scale mass activities in violation of safety management regulations, causing major safety accidents or other serious consequences". Seeing this, I immediately thought of the Miyun stampede accident. In fact, people who violate this law should be wronged, because their purpose and starting point are good. The purpose of holding mass activities is to add some fun to everyone's life, not to pursue it, but to avoid harmful results. Therefore, the subjective aspect of this crime can only be negligence, or negligence, or because of overconfidence, there have been omissions in organizational work, so that something should not have happened. Moreover, in fact, the organizers of the event are also trying their best to do security work. In my opinion, accidents in mass activities are largely due to people's lack of disaster awareness, lack of training and lack of organization and discipline. Otherwise, a Miyun lantern viewing activity without any external disasters will lead to the tragedy of 15 people being trampled to death on a small bridge? Last year, a township in our county held a Lantern Festival fireworks show, and the surrounding villagers came to see it. Unexpectedly, when a villager came by motorcycle, he accidentally fell into a ditch on the side of the road and died. This year's fireworks show was cancelled for fear of another accident. Organizers who are already cautious will be even more "walking on thin ice" after the introduction of this law. I know that this law is enacted to enhance the responsibility of event organizers, reduce the occurrence of accidents, or bear the responsibilities that should be borne after accidents. But legislators should also think about whether there will be a situation of "abandoning food because of choking".
Three. Article 139 of the Criminal Law adds the case that "after a safety accident occurs, the person responsible for reporting fails to report or falsely report the accident, delaying the rescue of the accident, and the circumstances are serious". There have been too many safety accidents in recent years, and 2005 is a year full of disasters. A series of coal mine gas explosion accidents occur every half month from south to north. People who "report" are generally in charge. For a long time, it has become the practice of many units to exaggerate and brag about good results and try their best to conceal bad news. They rarely take the initiative to take responsibility effectively, hide it from their superiors, and shirk everything from their subordinates, so they minimize the major issues and minimize the minor issues, so they are understated. Now the seemingly insignificant reporting system separates the crime of major liability accidents from the crime of major labor safety accidents, with obvious intention and far-reaching influence.
IV. In Articles 163 and 164 of the Criminal Law, the main body of the crime of accepting bribes is company and enterprise personnel, and "other units" is added. In this case, the middle zone between the bribery crime and the bribery crime of the original company personnel has been completely filled. For a long time, the subjects of some illegal acts, neither national staff nor employees of profit-making companies and enterprises, can escape the punishment of criminal law through this loophole. The most typical behavior is that the doctor takes back the buckle. Doctors take care of a pharmaceutical manufacturer through the convenience of prescribing drugs and collect kickbacks from them. This behavior violates the medical management order of the hospital and the health of patients and needs to be punished. But specifically, doctors, especially those in many private hospitals, are not "national staff" in the traditional sense, and hospitals are not for-profit companies in the traditional sense, so it is difficult to define them. Some experts argue that according to the nature of hospitals, doctors in public hospitals are convicted of accepting bribes, while doctors in private hospitals are convicted of accepting bribes by employees of companies and enterprises. It sounds obvious, but it doesn't make sense. Whether public or private, there is no difference between doctors' behavior of seeing a doctor and prescribing drugs. Why are there differences in conviction and sentencing based on different subjects? Moreover, in essence, prescribing by doctors is not an act of exercising public power, and purchasing drugs by hospitals is not a purely official act. Therefore, this behavior is slightly close to the crime of accepting bribes by companies and enterprises. Now adding this "other unit" to the crime of accepting bribes by employees of companies and enterprises will plug a loophole, and the legal application to other crimes of similar nature will be more clear.
Fifth, Article 262 of the Criminal Law adds the case of "organizing the disabled or minors under the age of 14 to beg by means of violence or coercion". Begging is a kind of freedom, but also a kind of occupation and lifestyle. In every city, there are many beggars on the overpass, under the overpass and at the subway entrance. They were exposed to the hot sun, attacked by wind and rain, and were in rags and miserable. Now the government is much more enlightened. Instead of forcibly "expelling and cleaning up" them, we persuade and subsidize them. With the material foundation and the support of people's sympathy, the income from begging is not too bad. Many people saw this "business opportunity" and organized many disabled people and children to beg for them. Disabled people's resistance ability is not strong, and children's ability to distinguish good from evil is too poor. Those who don't want to beg are forced to beg. This is actually an infringement of their personal freedom. What is even more frightening is that they will degenerate from self-respecting and self-reliant people to being willing to live this life, which will bring many negative effects to society. So this rule is still very important, but it should be clear that the target is not beggars, but people who force others to beg.
Sixth, Article 336 of the Criminal Law is added to the draft amendment: "In violation of state regulations, conducting fetal sex identification for others without medical needs leads to sex selection and artificial termination of pregnancy, and the circumstances are serious". This is to curb the serious gender imbalance. At present, the number of girls in many rural areas is less than half that of boys. In the long run, it will seriously affect social stability and harmonious development, so it is very necessary for the state to intervene in fetal sex selection. But from the perspective of jurisprudence, I think it is inappropriate for this clause to enter the criminal law. First of all, this is an interference in human rights. As a free individual, human beings have the most basic right to control their own bodies, including reproductive rights. People also have the right to know the development of the fetus and its basic information by using the existing technical means, and gender is no exception. This is internationally allowed. However, the prohibition of this kind of behavior in China is only determined by the special national conditions at this stage, and this prohibition does not have long-term rationality. Secondly, the problems in social development and progress are rich and colorful, and law is the cornerstone of relative stability in the process of radical society. Every law should carefully consider its reality, necessity and permanence. Since the founding of People's Republic of China (PRC), great changes have taken place in China's family planning policy. Mao Zedong era called for "many hands make light work", resulting in a huge population base; Since the reform and opening up, family planning has been implemented drastically, and many rural families have been punished for giving birth to a boy. At present, the young one-child generation has insufficient fertility motivation, and the trend of social aging is serious, and the policy may change again one day. A policy like this is not suitable for entering the law. The key to solving the population problem still needs publicity, education and guidance from all walks of life; Third, it is difficult to operate in reality. What exactly is "earnest"? Is it induced labor of the fetus? China does not stipulate that abortion is illegal.
I didn't find this clause in the officially promulgated amendment. I don't think it passed. Many problems in society can be solved in other ways, without disturbing the respected laws from time to time.