How to determine the starting point of the statute of limitations for the crime of abuse of power
Author: Zhang Chun, a partner of Guangdong Zhiheng (Guangzhou) Law Firm, focusing on the defense of economic crime cases
Note: This article is original and may not be reproduced without permission
In recent years, in the course of the "net clearing campaign" carried out by the public security organs, it has been discovered from time to time that some wanted persons have violated regulations by applying for identity cards in the process of household registration through the dereliction of duty of the relevant personnel of the public security organs, thus "bleaching" their identities and bringing great difficulties to the wanted work.
However, in such cases, there is often a long gap between the time when the ID card was handled in violation of regulations and the time when the wanted criminal was discovered during the "Clear the Net Operation", and how to grasp the statute of limitations for the crime of dereliction of duty has become a difficult issue.
According to the first paragraph of Article 89 of the Criminal Law, the time limit for prosecution is calculated from the date of the crime; Where the criminal conduct is continuous or continuous, it is calculated from the date on which the criminal conduct ends.
Regarding the meaning of "the date of the crime", in judicial practice, there are "the date on which the crime is established", "the date on which the criminal act is committed", "the date on which the criminal act occurs...", the date on which the criminal act is completed... the date on which the criminal act ceased".
1. There are two different opinions on the issue of the limitation period for prosecution:
The first opinion, that is, the opinion of the public prosecution organ, is that the statute of limitations for the crime of abuse of power should be calculated from the date on which the constitutive elements are met after the harmful result occurs or is presented, not from the date on which the act is committed. The time limit for prosecution shall be calculated from the date on which all the consequences of the crime of abuse of power arise, and in accordance with the provisions of the first paragraph of Criminal Law article 397, the crime of abuse of power is a consequential crime, that is, in addition to the criminal act, it should also cause major losses to public property and the interests of the state and the people before the consequences of this occurrence constitute a crime.
On the basis of article 6 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation (1) on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Dereliction of Duty", the time limit for prosecution of crimes of dereliction of duty where the harmful outcome is conditional is calculated from the date on which the harmful result occurs; Where there are several harmful outcomes, it is calculated from the date on which the last harmful outcome occurs.
The second opinion, that is, the opinion of the courts of first and second instance, is that the "date of the crime" should be regarded as the date on which the crime is established, that is, the date on which the criminal act meets all the constituent elements.
The crime of abuse of power is a consequential crime, that is, in addition to the criminal act, the consequence of causing significant damage to public property, the interests of the state and the people should occur in order to constitute a crime.
On the basis of article 6 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation (1) on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Dereliction of Duty", the time limit for prosecution of crimes of dereliction of duty where the harmful outcome is conditional is calculated from the date on which the harmful result occurs; Where there are several harmful outcomes, it is calculated from the date on which the last harmful outcome occurs.
2. The distinction between the concepts of continuing offenders and state offenders in criminal law theory
Continuing offenders, also known as continuing offenders, refer to crimes in which a criminal act acting on the same object is carried out from the beginning to the end of the act, and the criminal act and the illegal state are in an uninterrupted and continuous state for a certain period of time at the same time, such as the crime of illegal detention, the crime of harboring, and so on. Continuing to commit the following characteristics:
First, the perpetrator committed a criminal act with one intent.
Second, the criminal act must last for a certain period of time.
Thirdly, the contemporaneous continuation of the criminal act and the wrongful state caused by the crime are important characteristics of continuing the crime.
Often, once the criminal act is committed, the state of wrongfulness caused by the crime, that is, the state in which the object of the crime is violated, is already formed. The continuation of criminal acts means the continuation of criminal lawlessness.
A state offense, on the other hand, refers to a state of wrongfulness caused by a criminal act that has been committed, but has been committed. The typical characteristic of a state offender is that the criminal act that is a constituent element ends first, and the state of wrongfulness continues alone. Continuing offenders and state offenders, although both have the continuation of the state of lawlessness.
But the essential difference between the two is that the state of wrongfulness of continuing to commit the crime arises from the time the crime is committed; The state of wrongfulness arises from the end of the criminal act.
Continuing offense refers to the continuation of the act itself, and the continuation of the act leads to the continuation of the state of wrongfulness, that is, the infringement of legal interests by the continuing act continues, and the compliance of the constituent elements of the act continues;
However, after the state offender has committed the offense, the compliance with the constitutive elements of the act does not continue, but only the continuation of the unlawful state of the crime.
Therefore, Article 89 of the Criminal Law stipulates that where a criminal act is continuous or continuous, the time limit for prosecution shall be calculated from the date on which the criminal act ends.
In our view, the crime of abuse of power is a state offense, not a continuation of it.
After the criminal act of the crime of abuse of power is carried out, a state of illegality arises, that is, the result of the infringement, and although the result of the infringement has continued thereafter, the abuse of power itself has been carried out and has not continued, so the time limit for prosecution should still be counted from the date on which the result of the infringement caused by the abuse of power occurred, and cannot be calculated from the date on which the result of the infringement ended.
Previous Reviews:
◆Can forensic accounting appraisals that have not informed criminal suspects or defendants be used as evidence?
◆ 4 not-guilty arguments for shareholders who were charged with the crime of embezzlement for transferring shares without authorization
◆ Fraud cases: The perpetrator is summoned to the case orally or by telephone, how to fight for voluntary surrender?
◆ The two arguments identified in the Explanation of Judicial Accounting Appraisal Opinions are less than 10 million yuan of illegal profits, and they still cannot be used as evidence
◆ Experience: Can a lawyer still defend his innocence by signing a plea?
◆ Determination of "Fraud Methods" in Fundraising Fraud Cases (with Successful Cases of Not Constituting Fraud and Reversal of Second-Instance Judgment)
◆ How to defend the innocence of a third-party payment platform from "knowingly" providing a payment channel for suspected money laundering?
◆ Why does providing fourth-party aggregate payment for gambling platforms not constitute the crime of illegal operation?
◆ From the perspective of fraud cases: how to achieve an effective defense of voluntary surrender by "telephone notification"?
◆Criminal case: Is it okay after being released on bail pending trial? Will there be a probation? Will it still be investigated?
◆ Lawyer's comprehensive interpretation: the NFT (digital collection) initiative issued by the three associations is a compliance signal
◆ Small talk: I talked to the former prosecutor who handled the arrest and why a criminal lawyer is so much needed during the investigation stage
◆ Lawyer Zhang Chun: How to effectively defend electronic data in cybercrime cases?
◆ Practical Research - How to Determine the Assets and Illegal Gains Involved in Criminal Cases?
◆Practical Research - Laws and Regulations on the Sealing, Seizure and Freezing of Assets Involved in Criminal Cases (Detailed Version)
◆ Practical research - how to defend the sealing, seizure and freezing of "property involved in the case" in criminal cases
◆What useful information will the criminal detention notice reveal to the family that can save their loved ones?
◆Testimonials on the case||After getting caught in a criminal "lawsuit", is it reliable to find a relationship to dredge up the case?
◆ The Supreme People's Court and the Supreme People's Court issued the Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications Network Fraud (II)
◆ Interpret the full text of the "Judicial Opinions on Telecommunications Fraud II" issued by the "Two Supreme People's Courts and One Judicial Opinion" article by article
◆ The latest collection of cases of not guilty and non-prosecution for the crime of aiding information network criminal activities -- 246 cases as a sample
◆ Counterfeiting of Registered Trademarks - A Complete Collection of Arguments for Not Guilty
◆Case Record: Why can't the defendant be handcuffed and shackled during the trial?
◆ Lawyer Zhang Chun: Suspected Economic Crimes - How to Effectively Defend the Sealed, Seized and Frozen Property?
◆ Four key points of defense against forensic accounting appraisal opinions in economic crime cases
◆ Criminal Cases - A complete list of lawyers' work in the investigation stage
◆ Criminal Cases - A complete list of lawyers' work in the review and prosecution stage
◆When I was criminally detained, I said, "I'll talk about it when my lawyer comes."
◆ Case handling record: This criminal case has achieved phased results
◆Gist of the Adjudication|Fraud Cases 41 situations in which judicial accounting appraisal opinions are not accepted
◆ Financial Fraud Cases - Successful Activation of Illegal Evidence Exclusion Rules, Adjudication Opinions, and Statistical Collection
◆ The family members and the parties concerned should know the conditions for approving arrest, the decision and the organ that will enforce it within 7 days
◆ Retrial of fraud crime changed to not guilty - defense opinion | The latest and most complete statistics of acquittal cases in 2020
◆ Retrial of fraud and acquittal - gist of the adjudication | The latest and most complete statistics of acquittal cases in 2020
◆ In Criminal Cases - How to Efficiently Read the Case File in the Review and Prosecution Stage (Skills)
◆ Summary of normative documents such as laws, judicial interpretations, and trial reference cases for the crime of insurance fraud
◆How to collect evidence to report a thunderstorm on a P2P platform? When will I get my investment back?
◆ How to prepare the report materials so that the possibility of filing a case will increase? (Skills)
◆ Criminal Cases – How can a lawyer defend effectively during the investigation stage
◆ [First Instance, Second Instance, Death Penalty Review and Remand for Retrial] Summary of Laws and Regulations on the Period of Detention in Criminal Proceedings (Full)
◆[Investigation Stage] Summary of Laws and Regulations on the Period of Detention in Criminal Proceedings (2019)
◆ [Review for Prosecution] Summary of laws and regulations on the period of detention in criminal proceedings
◆Summary of key points of cross-examination in criminal cases
◆ The latest standards for criminal case filing and sentencing in Guangdong Province
◆ "Criminal Trial Reference" [No. 708] - Those who persuade or accompany a co-defendant to surrender may be found to have made meritorious service
◆ Temptation investigation is applicable to the discovery of the offender, not to "create" the offender, and the "opportunity offering" type can be used if it meets the conditions prescribed by law
◆ In cases where there are doubts in the key evidence and reasonable doubt cannot be eliminated, a not guilty verdict shall be declared
◆ Brief Discussion - Not every case is a not-guilty defense, there is a kind of judgment called not guilty due to insufficient evidence, only the defendant's confession cannot be convicted, and the evidence obtained by torture does not exclude all five series of problems
◆ Defense runs through the entire course of criminal proceedings, and defenses of innocence and minor crimes may exist at the same time, and except in several special circumstances, what the lawyer knows shall be kept confidential
◆ Nine cases of non-prosecution of suspected usury on-lending - non-prosecution of unclear facts, insufficient evidence, etc
◆ After these old scoundrels couldn't repay the loans, they not only deleted me, but also called the police to say that they had been "tricked loans" and intimidated by evil forces
◆ [Crimes of illegally absorbing public deposits, fraud, etc.] 8 common sentencing circumstances in economic crime cases
◆Criminal Lawyer | "Routine loans" may exist in the top 10 points of the defense of innocence
◆ The crime of illegally absorbing public deposits|100 judgments to see how the court determines the amount, sentencing, and judgment
◆ A legal opinion on a programmer who was charged with fraud and requested the public security to withdraw the case when he developed software
◆Entrusting others to invest in foreign exchange does not constitute the crime of fraud
◆ [Common and confusing] Does telecommunications network fraud constitute the crime of fraud or the crime of illegal business operation?
◆ When the evidence provided by the defense is very doubtful and does not reach the "preponderance of evidence", it is not appropriate to admit the evidence of the defense
◆ Criminal Trial Reference|The amendment to the Criminal Law should also apply the principle of treating the old with a lighter approach
Author: Zhang Chun, a partner of Guangdong Zhiheng (Guangzhou) Law Firm, focusing on the defense of economic crime cases