The full text of judicial interpretation and related explanations of Supplementary Provisions on Crime (IV)
On February 28th, 2009, after the promulgation and implementation of Amendment VII of the Criminal Law of People's Republic of China (PRC) (hereinafter referred to as Amendment VII of the Criminal Law), Gao Liang and Gao Liang's research rooms studied the application of crimes involved in Amendment VII of the Criminal Law, and reached a consensus after many times of soliciting opinions and repeated revisions. On September 26th, 2009, the Judicial Committee of the Supreme People's Court1474th meeting and the 20th meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on September 28th, 2009 adopted the "the Supreme People's Court and the Supreme People's Procuratorate on the implementation of the.
(IV) (hereinafter referred to as Supplementary Provisions on Crimes (IV)) was promulgated and implemented in June 65438+1October 65438+June 2009. The promulgation of this judicial interpretation will play an important role in unifying and standardizing law enforcement by public security organs at all levels.
The criminal law amendment (VII) * * * involves the original article 14 of the criminal law, which is divided into two categories in content: First, nine articles (paragraphs) are added, and nine crimes are correspondingly added to the nine articles (paragraphs). The second is to amend Article 9 (Paragraph). Of the nine articles (paragraphs) revised, four have changed the charges, and five can continue to apply the original charges (insider trading, disclosure of inside information, illegal business operation, kidnapping, covering up and concealing the crimes, and huge amount of property with unknown sources). "Supplementary Provisions on Crimes (IV)" * * * finds 13 charges.
First, study the principles followed in drafting supplementary provisions on crime (IV).
Accusation refers to the name of a specific crime stipulated in the specific provisions of the criminal law. In handling criminal cases, we must first apply the charges accurately, which is the premise of strictly distinguishing between crime and non-crime, and this crime and that crime, and it is also the inevitable requirement for public security organs to standardize law enforcement. In the process of studying and drafting Supplementary Provisions on Crime (IV), we have noticed the following principles:
(a) statutory, that is, in strict accordance with the specific provisions of the Criminal Law Amendment (VII).
(two) accurate, as far as possible from the "Criminal Law Amendment VII" provisions of the elements of accurate refinement of the charges, so that the charges reflect the essence and main characteristics of the elements of crime.
(three) concise, the charge is not a crime, need to be used repeatedly in the process of handling cases, and cited in legal documents, to be highly summarized, concise and practical.
(four) stability, the existing charging standards need to be revised, in order to maintain the continuity and stability of the application of charging standards.
Two, "Supplementary Provisions on Crimes (IV)" identified nine new charges.
(1) Crime of trading with undisclosed information
Amendment to the Criminal Law (VII) Paragraph 2 of Article 2 amends Article 180 of the Criminal Law, and adds paragraph 1 as the fourth paragraph, which will
Employees of financial institutions such as stock exchanges, futures exchanges, securities companies, futures brokerage companies, fund management companies, commercial banks, insurance companies, and staff of relevant regulatory departments or industry associations use other undisclosed information other than insider information obtained by taking advantage of their positions to engage in securities and futures trading activities related to this information in violation of regulations, or express or imply that others engage in related trading activities. If the circumstances are serious, it is stipulated as a crime. Article 180 1 of the Criminal Law is charged with insider trading and leaking inside information, and the criminal object of this article is "undisclosed information other than inside information". The charge should reflect the three core elements in this paragraph, namely "obtaining by taking advantage of one's position", "undisclosed information" and "trading", so the charge is determined as "trading by using undisclosed information".
(2) Crime of organizing and leading pyramid selling activities
Article 4 of the Criminal Law Amendment (VII) adds 1 after Article 224 of the Criminal Law. As one of Article 224th, the act of organizing and leading pyramid selling activities is criminalized, and the crime of this article is identified as "the crime of organizing and leading pyramid selling activities".
(3) the crime of selling or illegally providing citizens' personal information.
Article 1 is added to Article 7 of the Criminal Law Amendment (VII) after Article 253 of the Criminal Law. Article 1, as one of Article 253, makes it a crime for the staff of state organs or financial, telecommunications, transportation, education, medical and other units to sell or illegally provide citizens' personal information to others in violation of state regulations, if the circumstances are serious. This crime enumerates the behavioral characteristics and criminal objects stipulated in the crime and is determined as "the crime of selling and illegally providing citizens' personal information".
(4) Crime of illegally obtaining citizens' personal information
Paragraph 2 of Article 7 of the Criminal Law Amendment (VII) defines the act of stealing or otherwise illegally obtaining the information specified in paragraph 1 of this article as a crime. The crime in this section is identified as "the crime of illegally obtaining citizens' personal information".
(5) the crime of organizing minors to engage in activities violating public security administration.
1 is added to Article 8 of the Criminal Law Amendment (VII) after Article 262 as Article 262 bis, which makes it a crime to organize minors to commit theft, fraud, robbery, extortion and other acts that violate public security management. List and summarize the charges of this crime, and the listed acts are subordinate to the scope of general expression and should be used. The charge of this crime is determined as "organizing minors to carry out activities against public security management". Some people think that this crime uses the crime of organizing minors to violate public security management, which makes the text more concise; There are also views that the charges of this crime should be consistent with the charges, and too general words can easily lead to the expansion of understanding in judicial practice. After research, the latter opinion was adopted.
(six) the crime of illegally obtaining computer information system data and the crime of illegally controlling computer information system.
Article 285 1 of the Criminal Law protects computer information systems in the fields of state affairs, national defense construction and cutting-edge science and technology. Paragraph 1 in Article 9 of the Criminal Law Amendment (VII) adds paragraph 1 as the second paragraph in Article 285 of the Criminal Law, which expands the scope of protection of computer information systems, and will violate state regulations, invade computer information systems other than those specified in paragraph 1, or use other technical means to obtain data stored, processed or transmitted in computer information systems, or illegally control computers. This charge should reflect the behavior characteristics and criminal objects specified in the charge, and be determined as a selective charge "the crime of illegally obtaining computer information system data and the crime of illegally controlling computer information system". Some people think that the charges in this paragraph should be determined as two independent charges, namely "the crime of illegally obtaining data from computer information systems" and "the crime of illegally controlling computer information systems". After research, this paragraph still adopts selective charging. The main reasons are: first,
Paragraph 1 of Article 9 of the Criminal Law Amendment (VII) stipulates a complex crime constitution, which includes two optional means elements, namely "obtaining data stored, processed or transmitted in a computer information system" and "illegally controlling a computer information system". In the process of committing related crimes, the perpetrator may use two criminal means independently or cross each other. Under the above circumstances, the perpetrator is subjective and intentional, and the object of infringement is the security of computer information system, which is harmful to society and meets the general conditions for selective crime, and should not be evaluated as an independent crime. Second, if the charges in this paragraph are identified as two independent charges, and the perpetrator uses the means of "obtaining data" and "illegal control" to commit the crime at the same time, he should be punished for several crimes, which violates the modesty of the criminal law and also leads to an obvious imbalance with the punishment stipulated in Article 285 1 of the Criminal Law (the maximum punishment is fixed-term imprisonment of not more than three years). Third, the charges in this paragraph are determined as optional charges, and the case handlers can decompose or apply the charges in parallel according to the specific circumstances of the case.
(7) The crime of providing programs and tools to invade and illegally control computer information systems.
Paragraph 1 is added to Article 285 of the Criminal Law as the third paragraph in the second paragraph of Article 9 of the Criminal Law Amendment (VII), which stipulates that it is a crime to provide programs and tools specially used for invading or illegally controlling computer information systems, or to provide programs and tools to others knowing that they have committed illegal and criminal acts of invading or illegally controlling computer information systems, if the circumstances are serious. This crime embodies the three core elements stipulated in the crime: "providing", "invading" and "illegally controlling computer information system programs and tools". In the process of soliciting opinions, some people think that the word "for" should be added after "providing" in this crime. After research, if the word "use" is added, the word "special" should be added according to the charging regulations, which is not in line with the principle of concise charging, and the charges determined now will not be ambiguous, so it will not be adopted.
(eight) the crime of forging, stealing, buying and selling, illegally providing and illegally using special military symbols.
The third paragraph is added to the second paragraph of Article 12 of the Criminal Law Amendment (VII) after the second paragraph of Article 375 of the Criminal Law, which makes it a crime to forge, steal, buy or sell or illegally provide or use special signs such as the number plates of armed forces vehicles, if the circumstances are serious. This crime also lists criminal acts and targets, and is determined as "the crime of forging, stealing, buying and selling, illegally providing and illegally using special symbols of armed forces". The original charge of the exposure draft was "the crime of forging, stealing, buying and selling, illegally providing and using military symbols". Supplementary Provisions on Crimes (IV) absorbed the opinions of relevant departments and made two amendments: First, the word "illegal" was added before "use". In the process of soliciting opinions, the relevant departments put forward that the crime of illegal use of military symbols can easily be understood as the crime of using military symbols because there are pause signs between forgery, theft, sale, illegal provision and use. After research, this opinion was adopted. The second is to change "military symbol" into "special symbol of armed forces", that is, the criminal object of this crime is also consistent with this crime in terms of text expression.
(nine) the use of influence to accept bribes
Article 13 of the Criminal Law Amendment (VII) adds Article 1 after Article 388 of the Criminal Law as one of Article 388, which means that close relatives of state functionaries or other people closely related to state functionaries seek illegitimate interests for the trustee through the acts of state functionaries, or through the acts of other state functionaries. It is a crime to ask for or accept bribes in a large amount or if there are other serious circumstances, and to ask for or accept bribes by retired state employees or their close relatives and others by taking advantage of their original powers or positions. From the expression of the charges, the behavior of the perpetrator asking for or accepting bribes is to take advantage of the position, authority and status of the national staff, or to take advantage of the original authority and status of the resigned national staff. This crime can correspond to the crime of trading in influence stipulated in Article 18 of the United Nations Convention against Corruption, so this crime is identified as "taking advantage of influence to accept bribes".
Three, "Supplementary Provisions on Crimes (IV)" amended four crimes.
(1) the crime of smuggling goods and articles whose import and export are prohibited by the state
Article 1 of the Criminal Law Amendment (VII) revised the third paragraph of Article 15 1 of the Criminal Law, and expanded the protection object of the original article from "rare plants and their products prohibited by the state" to "rare plants and their products and other goods and articles prohibited by the state". In the process of studying and drafting this charge, there are different understandings about whether the charge contains the word "other". Through research, this crime is identified as "the crime of smuggling goods and articles whose import and export are prohibited by the state". The main reasons are as follows: First, "other" is a general expression outside the listed circumstances, and its scope is vague, so it is not suitable for this crime. Second, for similar cases, the previous charges are stipulated, such as Articles 1 14 and 1 15 of the Criminal Law, which correspond to the situation of "endangering public safety by other means", and the word "other" does not appear in the charges.
(2) Crime of tax evasion
Article 20 1 of the Criminal Law was amended in Article 3 of the Criminal Law Amendment (VII). The original provision states that "if a taxpayer falsifies, alters, conceals or destroys account books and vouchers without authorization, overstates expenses or underreports income in the account books, refuses to declare after being notified by the tax authorities, or makes false tax returns, and fails to pay or underpays the tax payable, the amount evaded is the tax payable. The revised article stipulates: "Taxpayers who make false tax returns or fail to make tax returns by means of deception or concealment, and evade taxes in a large amount, accounting for more than 10% of the taxable amount, shall be punished ..." Compared with the previous articles, the description of this crime has changed greatly, and the charges of this crime should also be adjusted. The original charge of the exposure draft was "tax evasion". Supplementary Provisions on Crimes (IV) defines this crime as "tax evasion" after comprehensively considering the opinions of relevant departments, and correspondingly cancels the original crime of "tax evasion".
(3) Crime of obstructing animal and plant epidemic prevention and quarantine
Article 1 1 of the Criminal Law Amendment (VII) amended Article 1 of the Criminal Law. In the original article, the expression of criminal behavior was "violating the provisions of the entry-exit animal and plant quarantine law, evading animal and plant quarantine, causing a major animal and plant epidemic", but now it is "violating the relevant state regulations on animal and plant epidemic prevention and quarantine, causing a major animal and plant epidemic, or causing it." The constitutive requirements of this crime have changed greatly, and the original crime is no longer applicable. Referring to Article 332 of the Criminal Law, the crime of obstructing frontier health and quarantine is defined as the crime of obstructing animal and plant epidemic prevention and quarantine, and the original crime of evading animal and plant quarantine is abolished accordingly.
(4) the crime of illegally producing and selling military uniforms.
Article 12 of the Criminal Law Amendment (VII) amended the second paragraph of Article 375 of the Criminal Law, specifically to combat the crime of illegally producing and buying military uniforms. The crime of special symbols of the armed forces is separately stipulated as the third paragraph of this article, and this crime is determined as "the crime of illegally producing and buying and selling uniforms of the armed forces", and the original crime of illegally producing and buying military symbols is abolished accordingly.
Fourth, other issues that need to be explained.
(1) Time effect of supplementary provisions on crimes (4). The crime of 13 determined in Supplementary Provisions on Crimes (IV) is
In view of the newly added article (paragraph) or the modification of the original article (paragraph) in the Criminal Law Amendment (VII), when handling cases in the Criminal Law Amendment (VII), the charges in the relevant article (paragraph) should be applied in strict accordance with the supplementary provisions (IV) on crimes. Supplementary Provisions on Crimes (IV) is not a supplement or amendment to the Criminal Law, but a determination of crimes, and its time effect is within the implementation period of the Criminal Law Amendment (VII).
(2) The total number of crimes in the specific provisions of the Criminal Law. After the implementation of the revised criminal law, 1997 19 on February 25th, the Supreme People's Procuratorate issued the Opinions on the Application of Crimes as stipulated in the Specific Provisions of the Criminal Law, and * * * found 4 14 crimes. On March 26, 2002, four new charges were added to the Supplementary Provisions on the Implementation of Confirmed Crimes. In 2007, 1 1.6 "two highs" was implemented.