Maimaiti theft
1. Basic facts of the case
Defendant Orgul Maimat, female, 30 years old, unemployed. In March 1998, he was sentenced to one year and six months in prison and fined 1,000 yuan for theft. On 15 April 1999, he was released from prison. He was arrested on suspicion of theft on 16 June 2000.
The People's Procuratorate of Xicheng District, Beijing Municipality, prosecuted the defendant Ergul Mamat for the crime of theft, and filed a public prosecution with the Xicheng District People's Court. The Xicheng District People's Court ascertained through open trial:
At about 12 o'clock on May 20, 2000, in front of the ticket office of the Beijing Zoo, the defendant Orgul Mamat took advantage of the unpreparedness of the victim Ilya Zaka (an Albanian) to steal 1,100 yuan from Ilya Zaka's left trouser pocket. was later captured. The Xicheng District People's Court held that the defendant Orgul Maimat's act of secretly stealing a relatively large amount of other people's money for the purpose of illegal possession violated the lawful property rights of others and constituted the crime of theft. Defendant Orgul Mamat is a repeat offender and should be given a heavier punishment and has serious circumstances. In view of the fact that the defendant Orgul Mamat's attitude in admitting guilt is relatively good, he may be given a lighter punishment as appropriate. In accordance with article 264, article 65, paragraph 1, article 71, article 69, article 52, and article 53 of the Criminal Law of the People's Republic of China, and article 6, paragraph 3 of the Supreme People's Court's Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases, the following judgment was rendered on 19 October 2000:
Defendant Orgul Mamat committed the crime of theft and was sentenced to four years imprisonment and a fine of 2,000 yuan, which was concurrently fined 1,000 yuan for the previous crime. It was decided to enforce the sentence of four years imprisonment and a fine of 3,000 yuan.
After the verdict was announced, Orgul Mamat did not appeal, the procuratorate did not protest, and the judgment took legal effect.
Second, the main issues
1. Where a person commits a new crime before the completion of the execution of the principal sentence and the additional penalty is not served, does it constitute a recidivist?
In the course of handling this case, there were differences on whether the defendant Orgul Mamat could be found to be a recidivist if he committed a crime of theft within five years of committing a crime that should be sentenced to fixed-term imprisonment or higher after the completion of the main sentence but before the execution of the supplementary sentence:
According to one opinion, according to the first paragraph of Article 65 of the Criminal Law, "after the completion of the execution of the criminal punishment or after the pardon" is a necessary condition for constituting recidivism. Article 32 of the Criminal Law clearly stipulates: "Punishment is divided into principal punishment and supplementary punishment". The defendant in this case, Orgul Maimat, committed a crime before the completion of the supplementary sentence, and should not be found to be a recidivist.
Another opinion holds that since the perpetrator intentionally commits another crime during the period of enforcement of the supplementary sentence after the completion of the main sentence, his subjective malice should be greater than that of committing a new crime after the completion of the enforcement of the supplementary sentence, since the first paragraph of Criminal Law article 69 provides: "A criminal who has been sentenced to a sentence of fixed-term imprisonment or higher, and within five years after the completion of the execution of the criminal punishment or pardon, commits another crime that should be sentenced to a sentence of fixed-term imprisonment or higher, is a recidivist and shall be given a heavier punishment", if the phrase "completion of the execution of the criminal punishment" is understood to include the main punishment and the supplementary punishment, Then, after the completion of the main sentence, where a new crime is committed during the period of enforcement of the supplementary sentence, it cannot be found to be a recidivist and given a heavier punishment; At the same time, since the main sentence has already been executed, it is not possible to impose a combined punishment on the perpetrator for multiple crimes on the main sentence, which is obviously not in line with the original intent of the legislation. Therefore, the "punishment" in "the execution of the criminal punishment has been completed" only refers to the principal punishment, and the defendant Orgul Mamat should be found to be a recidivist.
2. Can the concurrent punishment system be applied to the unexecuted fine for the previous crime when the new crime is sentenced? There are also two opinions on whether the defendant Orgul Maimat's unexecuted fine and sentence should be combined when the new crime is judged:
One opinion holds that, according to the provisions of Article 32 of the Criminal Law, "criminal punishment" includes the principal punishment and supplementary punishment, and that if the supplementary punishment given for the previous crime is not completed and a new crime is committed, the punishment shall be combined in accordance with the provisions of Article 71 of the Criminal Law. On May 16, 1994, the Supreme People's Court promulgated the Reply on the Issue of Whether Combined Punishment for Multiple Crimes Should Be Applied to Defendants Who Recommit Crimes During the Period of Additional Deprivation of Political Rights.
Another opinion holds that, judging from the provisions of Articles 69 to 71 of the Criminal Law, Article 69 of the Criminal Law clearly stipulates that "if a supplementary penalty is imposed for several crimes, the supplementary punishment shall still be enforced"; Article 70 clearly links "punishment" with "sentence", so the "punishment" in the system of combined punishment for multiple crimes should refer to the main punishment, excluding supplementary punishment. At the same time, according to article 5 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Property Penalties", the enforcement of fines should be completed within three months after the judgment takes effect. Therefore, the concurrent penalty system does not need to be applied to the fines that have not been executed for the previous offence when the new offence is sentenced.
III. Grounds for the Trial
(1) Where, after the completion of the sentence of fixed-term imprisonment but before the execution of the supplementary sentence, the defendant Orgul Mamat commits another crime that should be sentenced to a sentence of fixed-term imprisonment or higher, it constitutes a recidivism
Recidivism refers to a criminal who has received a certain criminal punishment for committing a crime, and after the execution of the criminal punishment or pardon, commits a certain crime within the statutory time limit. In mainland criminal law, there is a distinction between general recidivism and special recidivism. According to article 65 of the Criminal Law, ordinary recidivism refers to criminals who have been sentenced to fixed-term imprisonment or higher and, after the completion of the execution of the sentence or pardon, commits another crime that should be sentenced to fixed-term imprisonment or higher within five years. In addition to the time condition that "after the completion of the execution of the sentence or pardon, the offender shall be re-committed within five years" and the subjective condition that the preceding and subsequent crimes are intentional crimes, the composition of a general recidivism must also have the "indefinite term" of the sentence imposed for the previous crime and the sentence that should be imposed for the subsequent crime
imprisonment or more". In the absence of such a condition or in the absence of such a condition and the execution of the sentence has not been completed, it shall not constitute a recidivism. Therefore, the "punishment" provided for in article 65 of the Criminal Law should be understood to refer to "punishment of fixed-term imprisonment or above", and cannot be broadly interpreted to include "principal punishment and supplementary punishment". In March 1998, the people's court sentenced the defendant Orgul Mamat to one year and six months imprisonment and a fine of 1,000 yuan for committing the crime of theft, and in May 2000 he committed the crime of theft that should be sentenced to fixed-term imprisonment or higher, and shall be found to be a recidivist if he meets the requirements for recidivism as provided for in the Criminal Law.
(2) Where the fine for the previous crime has not been served, the punishment shall be concurrent at the time of the judgment for the later crime
Fines are a method of punishment in which the people's courts sentence criminals to pay a certain amount of money to the state, and are a type of property punishment. According to Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Property Penalties, the fine shall be served within three months after the judgment takes effect. However, due to the fact that the enforcement of fines is affected by the criminal's own economic situation, the subjective attitude of paying the fine, and the strength of the people's court's enforcement, the situation of failure to enforce the fine within the time limit provided for in the judicial interpretation objectively exists. As long as the fine is not executed, it cannot be regarded as "the execution of the criminal punishment" from the perspective of the combined punishment for several crimes and the enforcement of the punishment for the previous crime. Therefore, where a criminal commits a new crime after the completion of the main sentence but before the completion of the additional fine, the penalty of the fine that was not served for the previous crime shall be combined with the punishment for the later crime on the basis of article 71 of the Criminal Law. If a fine is also imposed for the latter offense, article 3 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Property Penalties" shall be followed: "The amount of the fine imposed shall be added up to enforce the total amount". The reasons for this are:
First of all, according to the provisions of Article 53 of the Criminal Law, there are five ways to enforce fines: (1) a lump sum payment, that is, "within the time limit specified in the judgment", ordering the offender to pay the full amount of the fine determined in the judgment at one time. (2) Pay in installments, i.e., "within the time limit specified in the judgment", ordering the offender to pay the full amount of the fine determined by the judgment in several times. (3) Compulsory payment, that is, the adoption of compulsory enforcement measures to compel the offender to pay the amount of the fine determined by the judgment. (4) Recovery at any time, that is, for the offender who is unable to pay the fine in full, the people's court shall compel the criminal to pay at any time if it discovers that the person subject to enforcement has property that can be enforced. (5) Reduction and exemption of payment, that is, a method of enforcement of fines in which the people's courts reduce or exempt the amount of fines that criminals should pay in accordance with law. Article 5 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Property Penalties" provides that the enforcement of fines and penalties shall be completed within three months after the judgment takes legal effect, and only refers to the two methods of one-time payment and installment payment among the above-mentioned enforcement methods.
Second, according to Article 53 of the Criminal Law, if the fine has not been completed after the judgment, as long as the criminal does not have "real difficulties in paying due to irresistible calamities", this condition can be reduced or reduced in accordance with the law, the people's court shall recover it at any time if it discovers that the person subject to enforcement has property that can be enforced.
Third, although supplementary punishments can be applied independently or additionally, supplementary punishments are subordinate punishments and are types of punishments that supplement and enhance the effect of the application of the principal punishment. Determined by the nature of the supplementary punishment, the supplementary punishment imposed on several crimes cannot be absorbed by the main punishment, and different types of supplementary punishment generally cannot absorb each other, otherwise the meaning of the supplementary punishment specifically provided for a certain crime in the Criminal Law will be lost. In the same way, because there is no comparability between different types of punishments, the principle of limitation and aggravation cannot be applied to the principle of combining punishments between supplementary punishments and principal punishments, or between different types of supplementary punishments. Therefore, the second paragraph of Article 69 of the Criminal Law stipulates: "If a supplementary sentence is imposed for several crimes, the supplementary sentence must still be enforced. ”
Finally, with reference to the provisions of the Reply of the Supreme People's Court on May 16, 1994 on the Issue of Whether Combined Punishment for Multiple Crimes Is Applicable to Defendants Who Recommit Crimes During the Enforcement of Additional Deprivation of Political Rights, if a convict sentenced to fixed-term imprisonment has completed the execution of the main sentence and commits a new crime during the period of deprivation of political rights during the enforcement of the supplementary sentence, if the new crime committed does not require the deprivation of political rights by an additional sentence, a judgment shall be made on the new crime committed by the defendant. Deprivation of political rights of the sentence imposed for the new crime and the supplementary punishment for the previous crime that has not been completed, and the punishment to be enforced is to be determined in accordance with the principle of combined punishment for multiple crimes, that is, after the execution of the sentence imposed for the new crime is completed, the additional sentence for the previous crime that has not been completed is to continue to be served and deprived of political rights. The spirit of this provision shall also apply to the penalty of additional fines.
To sum up, we believe that the "punishment" in the system of combined punishment for multiple crimes includes the principal punishment and supplementary punishment, as long as the subsequent crime committed by the perpetrator is the punishment for the previous crime, including the main punishment and the supplementary punishment before the completion of the sentence, when the judgment for the later crime is made, the system of combined punishment for multiple crimes should be applied; The system of combined punishment for multiple crimes does not apply to the conviction of the latter offence only after the perpetrator has completed the execution of all the sentences imposed for the previous offence, including the principal and supplementary sentences. The defendant in this case, Orgul Maimat, commits a new crime after the original sentence of fixed-term imprisonment has been completed but before the additional fine has been served, and the unenforced fine shall be given concurrently at the time of the judgment for the new crime.