(A) the legislative response to social hot events

1. Reduce the age of criminal responsibility

In recent years, vicious violent crimes committed by minors frequently appear in newspapers. For example, in April 2020, Yang Moumou, aged 0/3 in Langxi County, Anhui Province, killed his cousin Yang and dumped his body; 20 19 July, Su Mou, aged 0/2 in Yongning County, Ningxia, hit his 6-year-old relative Li Moumou with a wooden board, causing his death. These minors who have committed serious social behaviors cannot get criminal sanctions because they are under the age of 14, which has aroused strong public dissatisfaction. In response to people's concerns, this amendment has revised the provisions on the minimum age of criminal responsibility in Article 17 of the Criminal Law: "A person who has reached the age of 12 and is under the age of 14 commits the crime of intentional homicide and intentional injury, and causes death or serious disability by particularly cruel means, and if the circumstances are bad, he shall bear criminal responsibility." That is to say, under certain circumstances, after certain procedures, people who have reached the age of 12 but have not reached the age of 14 will also bear criminal responsibility. This amendment subverts the long-standing stipulation that minors under the age of 14 are not criminally responsible, breaks through the uniform "one size fits all" model of the age of criminal responsibility stipulated in the criminal law, and gives the Supreme People's Procuratorate substantial power to judge whether minors under the age of 12 to 14 are criminally responsible.

2. Criminalize violence that endangers traffic safety.

In recent years, traffic accidents caused by conflicts between passengers and drivers have occurred from time to time all over the country. The amendment adds one article after the crime of dangerous driving in Article 133- 1 of the Criminal Law, as Article 133bis: "Whoever uses violence against the driver of a moving public transport to interfere with the normal operation of public transport and endanger the safety of public transport shall be sentenced to fixed-term imprisonment of not more than one year, criminal detention or public surveillance, and shall also or exclusively be punished. If the driver of the preceding paragraph leaves his post without permission on public transport, fights with others or beats others, thus endangering the safety of public transport, he shall be punished in accordance with the provisions of the preceding paragraph. Whoever commits the acts mentioned in the preceding two paragraphs and constitutes other crimes at the same time shall be convicted and punished in accordance with the provisions of heavier punishment. " This is a newly added crime of endangering traffic safety by violent means, that is, the driver of a moving public transport uses violence or grabs and controls the driving operation device, and the driver leaves his post without authorization. The establishment of this crime adopts the legislative mode of specific dangerous crime. If it is related to the crime of causing traffic accidents in Article 133 or the crime of endangering public security by dangerous means in Article 1 14 and the crime of endangering public security by dangerous means in Article 1 15 of the Criminal Law (actual crime),

3. Severely punish child molestation

At present, there are many views on the low statutory penalty for child molestation in society, and there have been heated discussions in theoretical and practical circles. People generally question the sentencing results of such cases. The author believes that from a realistic point of view, before this amendment stipulates "other bad circumstances" in the crime of child molestation, according to the rule of homogeneous interpretation, if child molestation causes harm to the victim child, the statutory punishment of child molestation crime should not be applied. If minor injuries are caused to the child victim, it should constitute the imaginative concurrence of the basic punishment of the crime of child molestation and the crime of intentional injury, and be punished as a felony. [1] However, there are precedents in practice where child molestation is regarded as "other bad circumstances" in the crime of child molestation. In this regard, the third paragraph of Article 237 of the Criminal Law is amended as: "Whoever molests children shall be sentenced to fixed-term imprisonment of not more than five years; Under any of the following circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years: (1) molesting one or more children; (2) Gathering people to molest children, or molesting children in public places, if the circumstances are bad; (3) Causing injuries to children or other serious consequences; (4) Obscene means are bad or there are other bad circumstances. " This revision refers to the aggravated plot model of rape specifically listed in the third paragraph of Article 236 of the Criminal Law, and clarifies the aggravated plots of four kinds of child molestation crimes, thus actually aggravating the punishment for child molestation crimes and realizing the severe punishment for violations of children's sexual rights under the condition that the statutory punishment remains unchanged.

Step 4 crack down on impersonation

According to reports, in the centralized inventory of higher education data carried out in Shandong Province in September, 20 18, it was found that 242 people from 14 colleges and universities in the province entered the school as impostors and obtained corresponding academic qualifications. According to the investigation, most college entrance examination imposters use the relevant staff to abuse their powers or neglect their duties, and take a series of measures, such as taking the college admission notice, forging files, forging household registration and so on, to replace the admission qualifications of impostors. A considerable number of impostors have no idea about this, and even mistakenly think that they have failed in the college entrance examination. Because the college entrance examination impersonation incident involves a large number of people and a wide range, it has aroused widespread public discussion and strong indignation. In this regard, this amendment adds one article after Article 280-1 of the Criminal Law as Article 280-2: "Whoever steals or uses another person's identity to replace another person's qualifications for higher education, civil service recruitment and employment placement shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or control, and shall also be fined. Whoever organizes or instigates others to commit the acts mentioned in the preceding paragraph shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. State functionaries who commit the acts mentioned in the preceding two paragraphs, which constitute other crimes, shall be punished in accordance with the provisions of combined punishment for several crimes. " Increase the crime of "stealing or using another person's identity", explicitly criminalize the act of stealing or using another person's identity to replace the qualifications and benefits of higher education obtained by others, and stipulate that those who organize or instruct others to steal or use another person's identity to replace them shall be given a heavier punishment.

(2) Linking up with the legislation of other departmental laws.

1. Amend the relevant provisions on commercial secret crimes.

Since China promulgated the Anti-Unfair Competition Law on September 2, 1993, it was revised twice on 20 165438+20654381October 4+April 23, 2009. Article 10 of Chapter II of the Law (mainly includes: firstly, the act of "obtaining, using or disclosing the trade secrets of others" is clearly defined as "obtaining, disclosing, using or allowing others to use the trade secrets"; secondly, in the item 1 of the article, two items of obtaining the trade secrets of the obligee by improper means are added. Thirdly, the wording of item 3 of article 1 is changed to "breach of confidentiality obligation", and the wording is more rigorous and standardized; Fourth, in the definition of "business secret", the general provisions of "such as business information" have been added, and the scope of the concept of "business secret" has been expanded, which is no longer limited to "technical information and business information that are not known to the public and have commercial value and are kept confidential by the obligee". Before the promulgation of this amendment, Article 2 19 of China's Criminal Law fully quoted the expression of 1993 "Anti-Unfair Competition Law" on the crime of infringing trade secrets. On the premise that the former law has been revised on a large scale, the criminal law should respond to this. In view of this, this revision absorbs and draws lessons from the above-mentioned revision measures of the Anti-Unfair Competition Law, and at the same time modifies the crime of infringing trade secrets in Article 2 18. As early as 2009, the famous "Rio Tinto case" (Hu Shitai and other non-state workers accepting bribes and infringing on trade secrets) exposed the legislative defects and loopholes of the crime of infringing on trade secrets in China's criminal law. In July 2009, Shanghai State Security Bureau criminally detained four Rio Tinto employees, including Hu Shitai, on suspicion of spying for overseas and stealing China state secrets. [2] However, because the secret information about China iron and steel enterprises in this case belongs to trade secrets, it cannot be included in the category of state secrets, and China's criminal law does not make spying and stealing trade secrets a crime, four people involved in the case were formally arrested and prosecuted in the Shanghai People's Procuratorate, and were charged with "demoting" the crime of accepting bribes and infringing trade secrets by non-state staff. This shows the helplessness of our criminal law in punishing such international commercial espionage. Because of this, this amendment adds one article after Article 2 19 of the Criminal Law as one of Article 2 19: "Whoever steals, spies on, buys or illegally provides business secrets for overseas institutions, organizations and personnel shall be sentenced to fixed-term imprisonment of not more than five years and shall also or only be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and fined. " Adding the crime of stealing, spying, buying and illegally providing business secrets abroad will help to distinguish the traditional crime of infringing business secrets from the crime of infringing business secrets for overseas institutions, organizations and personnel, and make up for the lack of crackdown on the crime of infringing business secrets for overseas interests in our criminal law. At the same time, by setting a heavier legal penalty for the crime of stealing, spying, buying and illegally providing trade secrets abroad than for the crime of infringing trade secrets, we can realize the graded punishment for the infringement of trade secrets with different social hazards, which highlights the severe blow of China's criminal law to international business espionage. It can be seen that this revision not only pays attention to the reasonable connection with the relevant pre-laws, but also regulates unfair competition behaviors that infringe on trade secrets with different social hazards by setting up new charges.

2. Amend the relevant provisions on the crime of counterfeit drugs and inferior drugs.

Before the fourth revision of China's Drug Administration Law in August 20 19, unqualified counterfeit and inferior drugs were divided into four categories: counterfeit drugs, drugs treated as counterfeit drugs, inferior drugs and drugs treated as inferior drugs. The revised Drug Administration Law abolished the relevant provisions on penalties for counterfeit drugs and inferior drugs, and made major adjustments to the classification of unqualified counterfeit drugs and inferior drugs. The "deteriorated" drugs originally punished as counterfeit drugs and drugs with indications or functions beyond the prescribed scope are classified as counterfeit drugs, and the "polluted" drugs originally punished as counterfeit drugs are classified as inferior drugs. At the same time, the words "production must be approved in accordance with this law but not approved" which were originally punished as counterfeit drugs were deleted. Before the promulgation of this amendment, the crime of producing and selling counterfeit drugs in Article 14 1 and the crime of producing and selling inferior drugs in Article 142 of China's criminal law clearly stipulated that the concepts of counterfeit drugs and inferior drugs refer to drugs treated as counterfeit drugs, non-drugs and drugs belonging to inferior drugs respectively according to the provisions of the Drug Administration Law. After the connotation and extension of counterfeit drugs and inferior drugs have been greatly adjusted in the Drug Administration Law, this amendment has also been adjusted accordingly: the definitions of counterfeit drugs and inferior drugs in Articles 14 1 and 142 of the Criminal Law have been deleted, which is consistent with the classification of counterfeit drugs and inferior drugs in the Drug Administration Law; At the same time, referring to the provisions of Article 1 19 of the Drug Administration Law, it is clear that the behavior of drug users who knowingly provide fake drugs or inferior drugs to others should be punished in accordance with the provisions of the crime of selling fake drugs and inferior drugs.

3. Amend the relevant provisions on securities and futures crimes.

20 19 12 China's securities law was revised for the fifth time, in which article 55 (formerly article 77) added "frequently or massively declaring or canceling the declaration for the purpose of closing a transaction", "inducing investors to trade securities by using false or uncertain important information" and "publicly evaluating, predicting or investing in securities and issuers". It should be noted that three of the four new means of manipulating the securities market in the securities law are mainly influenced by the Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Manipulating the Securities and Futures Market issued by the "Two Highs" on June 27th, 2009. However, according to the judicial interpretation, manipulation behaviors such as fraud (that is, frequent or massive withdrawal of orders), confusing transactions and "stealing hats" belong to "manipulating the securities and futures market by other means" as stipulated in Item 4 of Article 182 of the Criminal Law. This amendment has also made a corresponding supplement to this, explicitly adding these three behaviors to the manipulation of the securities and futures market, so as to make the connection between the criminal law and the securities law and related judicial interpretations smoother.

4. Amend other clauses to connect with the Civil Code.

In addition, on May 28th, 2020, China promulgated the Civil Code, which is the first legal document named after the code since the founding of New China. It involves property rights, contracts, personality rights, marriage and family, inheritance, tort liability and many other contents, covering all aspects of social life and economic activities. It can be described as a landmark legislative feat on the road of legal system in China. It should be noted that the Civil Code has established some new rights and obligations, which were not involved in China law before, and the establishment of these rights and obligations is also of great significance to criminal legislation. Civil rights, that is, the authorization clause in civil law, also depend on the protection of criminal law; Violation of civil obligations, that is, violation of the prohibitive provisions of civil law, may also be punished by criminal law when its social harm reaches a certain level. For example, Article 185 of the Civil Code protects the names, portraits, reputations and honors of heroic martyrs, Article 680 prohibits lending at high interest rates, Article 1009 prohibits "engaging in medical and scientific research activities related to human genes and human embryos", and Article 109 prohibits it. Accordingly, this amendment has also added corresponding clauses, clearly defining as criminal acts acts acts that infringe on the reputation and honor of heroic martyrs, illegally collect debts generated by usury, illegally engage in gene editing, cloning and human embryo experiments, and throw objects from buildings or other high altitude.