Summary of the gist of the judgment of the 139th edition of the Criminal Trial Reference

Collation: Deng Zihua Criminal Law Advice

Note: The 139th volume of the Criminal Trial Reference includes a total of 15 typical cases from Nos. 1581 to 1595, mainly involving substantive issues such as crime and non-crime, this crime and other crimes, and the determination of sentencing circumstances, as well as the standard for admissibility of evidence in criminal cases of sexual assault against minors. We have summarized the gist of the adjudication of 15 typical cases in this series and studied and studied them with all readers.

1. Case of Zheng XX and Ma XX being sued for illegally manufacturing, trading, and transporting explosives (No. 1581)

The gist of the adjudication: Administrative offenders have the dual illegal attributes of administrative illegality and criminal illegality, and their criminal illegality must be premised on administrative illegality, and acts that do not have administrative illegality cannot be criminally illegal, and even if they have a certain social harm, they cannot be pursued as criminal offenses.

2. Insider trading case of a Beijing Development Group Co., Ltd. and Li XX (No. 1582)

The gist of the adjudication: If the contact or contact between the actor and the person with the inside information during the sensitive period of the inside information reaches the level where the actor has a realistic possibility of obtaining the inside information, it may be determined that the actor has contact or contact with the person who knows the inside information. Where the actor collects funds to purchase the stocks involved in the case during the sensitive period, and the time of the trading conduct is basically consistent with the time of contacting and contacting persons with inside information, as well as the time of the formation and development of the inside information, and the trading conduct deviates from the basic common sense of public securities information, and the willingness to buy is unusually strong, and there is no legitimate reason, it may be found that the relevant trading conduct is obviously abnormal. To determine whether an insider trading act is a crime committed by an individual or a unit, it can be analyzed from three aspects: whose will the criminal act represents, whose orders are executed, and to whom the benefits belong.

3. Case of contract fraud between Ye Moulin, Tan Mouhong, Shi Mou, and Qiao Moukun (No. 1583)

Gist of the adjudication: The distinction between contract dispute and contract fraud in a franchise contract can be examined from the following perspectives: first, whether the defendant has the ability to perform the contract; second, whether the defendant committed fraud to induce the other party to sign a contract; (3) whether the defendant actually performed the contract after signing the contract; Fourth, whether the defendant transferred or concealed property obtained by fraud.

4. Case of Jiang XX negligently causing serious injury (No. 1584)

The gist of the adjudication: Where the facts alleged in the indictment are clear, the evidence is credible and sufficient, and the defendant admits the facts of the alleged crime and does not accept the alleged crime, but accepts the charges determined by the people's court at trial, it may be found to be an "admission of guilt". In cases where the charges are inconsistent with the charges found at trial, and the defendant agrees with the charges found by the people's court at trial and voluntarily accepts the corresponding punishment, it is considered to be "accepting punishment", and where harm to the lives or health of others or losses to public or private property is caused, a comprehensive determination of whether the defendant "accepts punishment" should be combined with actual expressions of remorse such as returning stolen goods and making restitution, compensating for losses, and making formal apologies.

In cases where the defendant does not agree with the procuratorate's characterization of the case and does not admit guilt and accept punishment, there is no basis for plea and plea negotiation, but the people's court finds through trial that the procuratorate's charges are improper, and the defendant accepts the charges determined by the people's court at trial and voluntarily accepts the corresponding punishment, and meets the requirements for admitting guilt and accepting punishment, the people's court may initiate plea procedures in accordance with its authority, to ensure the defendant's right to voluntarily admit guilt and accept punishment and receive a lenient disposition.

Whether it is necessary to resume trial when the defendant admits guilt and accepts punishment after the trial is completed but before the verdict is announced, cannot be generalized. In cases where the people's court's trial of the charges found is inconsistent with the charges charged by the procuratorate, the facts and evidence related to the conviction and sentencing of the case have already been ascertained in accordance with law during the trial, and the opinions of both the prosecution and defense have been heard on the charges found at trial, and the procuratorate has made it clear that it will not change the charges and sentencing recommendation, and the defendant has expressed after trial that he accepts the charges and corresponding punishments at trial, the opinions of the prosecution and defense have been clarified, and the expressions of remorse have already been ascertained, and there is no need to hold another in-court trial as to whether the defendant meets the requirements for admitting guilt and accepting punishment, and the people's court may make a determination in accordance with law. and made a judgment based on all the evidence in the case.

5. Case of Child Molestation by Zuo (No. 1585)

Gist of the Adjudication: In criminal cases of sexual assault against minors, the review of the victim's statement may begin from the perspectives of whether the report is timely and natural, whether the victim's statement is stable and natural, whether the victim's description of the details is in line with the normal memory, cognition, and expression ability of children of that age, whether the possibility of false accusation or framing can be ruled out, and whether it can form a corroborative relationship with other evidence in the case. At the same time, the method of proving the truth of the front and the falsification of the negative may also be used to review the objectivity of the defendant's confession and justification.

Where the juvenile victim states details related to the defendant or the facts of the sexual offense that are not known through personal experience, and the possibility of incrimination, inducement, false accusation, or framing can be ruled out, it shall generally be accepted; The determination of the facts of cases of sexual violations against minors should be based on evidence, combined with experience and common sense, considering the particularity of the sexual assault case and the physical and psychological characteristics of the minor, accurately understanding and applying the standards of proof that the facts are clear, the evidence is credible and sufficient, and reasonable doubt is excluded.

6. Kidnapping Case of He XX and Wang XX (No. 1586)

The gist of the adjudication: After kidnapping and killing the victim, the act of extorting property from the victim's relatives on the basis of the victim's life should be characterized as the crime of kidnapping.

7. Xu Moumou's bigamy case (No. 1587)

The gist of the adjudication: The civil judgment in a criminal judgment shall have a legal basis, and the declaration of nullity of marriage does not fall within the scope of criminal proceedings and civil proceedings attached to criminal proceedings, and whether it is a public prosecution or a private prosecution, when hearing a case of bigamy, the marriage cannot be declared null and void together in the criminal judgment.

8. Yang's theft case (No. 1588)

The gist of the adjudication: After an employee leaves the company, taking advantage of the loophole that the company fails to close the system access authority in time to book a ticket may constitute the crime of theft. The distinction between completed and attempted theft should be judged based on two aspects: whether the right holder has lost actual control of the property and whether the perpetrator has actually possessed and disposed of the property.

9. Case of Lin attacking the police (No. 1589)

The gist of the adjudication: In cases of assault on police, the victim's police issuing a letter of understanding in his or her own name cannot restore the damaged law enforcement order and authority, so the people's police's personal understanding does not necessarily produce a sentencing result of lenient punishment for the perpetrator.

10. Case of Li helping to destroy and fabricate evidence (No. 1590)

The gist of the adjudication: Where, in order to cover up one's own criminal conduct, others are instructed to give false testimony through ordinary entrustment, requests, or other means, it is an act that cannot be punished after the fact, and no longer constitutes the crime of obstructing testimony alone. In addition, the first paragraph of Article 307 of the Criminal Law lists three common methods of obstructing testimony, and at the same time uses "other methods" to indicate that the list is not exhaustive, but the unlisted conduct methods should be comparable to the "violence, threats, and bribery" in degree and harmfulness. Where methods such as ordinary advice, entrustment, or requests are employed against the perpetrator to prevent others from testifying or instruct others to testify perjury, it is generally not to be punished as the crime of obstructing testimony.

11. Ye Moumou's false lawsuit case (No. 1591)

Gist of the Adjudication: For conduct involving false litigation that spans multiple civil litigation cases, a comprehensive assessment of whether it is a criminal act of false litigation shall be based on factors such as the specific facts fabricated, the impact on judicial order, and the continuity of conduct. Where the actor's civil litigation at a certain stage is not a "fabrication of facts" or "initiation of litigation", or is not sufficient to have an impact on the outcome of the people's court's judgment, it is not to be found to be a false litigation act.

12. Wang Moumou's embezzlement case (No. 1592)

Gist of the Adjudication: The act of withholding donated property without permission should be characterized as the crime of embezzlement rather than the crime of accepting bribes. For crimes of embezzlement, the property involved in the case should generally be returned to the victim unit, but if the property involved in the case is a violation of discipline due to violation of relevant provisions, a judgment should be made to hand it over to the state treasury. Where the value of the original items that are assets involved in the case is depreciated in the course of the perpetrator's use, the depreciation losses shall be recovered at the same time as the original items are recovered; If the original goods produce fruits and income, they shall be recovered and turned over to the state treasury together.

13. Case of Chu XX accepting bribes (No. 1593)

The gist of the adjudication: business opportunities have the characteristics that business risks are unpredictable and whether economic benefits can be obtained are difficult to determine, while property interests refer to existing economic interests or expected economic interests with a high degree of probability. Business opportunities are not the object of the crime of bribery, and property interests are the object of the crime of bribery. The act of conveying or receiving property benefits through market transactions may constitute the crime of bribery.

14. Huang's bribery case (No. 1594)

The gist of the adjudication: the value of the stock includes the immediate market value of the stock and the value of the dividends and listing appreciation attached to the stock, and the listing appreciation of the original stock is an objectively existing expected benefit. The act of a state functionary taking advantage of his position to seek benefits for the trustee and purchase the original shares from the trustee to obtain the benefits of listing appreciation is an act of accepting bribes. After the state functionary purchases the original shares, the company shall issue shares without compensation on a proportional basis from time to time, and the profit from the allotment shall be included in the amount of the crime of accepting bribes.

15. Yu Mourong's case of accepting bribes and committing fraud for personal gain (No. 1595)

The gist of the adjudication: In determining the completed or attempted acceptance of other people's property in the crime of accepting bribes, the actual ownership of the property should be grasped, and the property has been out of the control of the bribe giver and has been actually placed under the control of the bribe-taker, that is, the crime of accepting bribes has been completed, otherwise it is an attempt. In the absence of actual delivery, bribery is generally not considered to have been completed.

The copyright belongs to the original author.