Comprehensive basic knowledge: criminal law analysis and case analysis

The age of criminal responsibility refers to the age at which the perpetrator must reach to commit a criminal act prohibited by the criminal law.

(1) No criminal responsibility period at all-/kloc-People under the age of 0/4 will not bear criminal responsibility.

(2) Relative period of criminal responsibility-A person who has reached the age of 14 and is under the age of 16 commits the crime of intentional homicide, intentional injury, causing serious injury or death, robbery, drug trafficking, arson, explosion or throwing dangerous substances, and shall bear criminal responsibility.

(3) Full criminal responsibility period-A person who has reached the age of 16 commits a crime and should bear criminal responsibility.

If a person who has reached the age of 14 and is under the age of 18 commits a crime, he shall be given a lighter or mitigated punishment.

/kloc-those under 0/6 years of age shall not be given criminal punishment, and their parents or guardians shall be ordered to strictly discipline them; When necessary, it can also be taken in for reeducation by the government.

The age of criminal responsibility refers to the full age, not the nominal age.

Example:

The age of full criminal responsibility stipulated in China's criminal law is ().

A. 14 years old B. 16 years old C. 18 years old D.20 years old

The criminal law of our country stipulates the age of criminal responsibility as follows: (1) People under the age of 14 are not criminally responsible. This is a period of absolutely no criminal responsibility or no criminal responsibility at all. (2) A person who has reached the age of 14 and is under the age of 16 commits the crime of intentional homicide, intentional injury, serious injury or death, coercion, robbery, drug trafficking, arson, explosion or throwing dangerous substances, and shall bear criminal responsibility. This is a period of relative criminal responsibility. (3) A person who has reached the age of 16 commits a crime and shall bear criminal responsibility. This is a period of full criminal responsibility. (4) A person who has reached the age of 14 and is under the age of 18 commits a crime and shall be given a lighter or mitigated punishment. This is a period of reducing criminal responsibility. So choose B.

2. Capacity for criminal responsibility

The ability of criminal responsibility refers to the actor's ability to identify and control himself. Intermittent mental patients have the ability to identify and control when they are mentally normal, and should bear criminal responsibility for their criminal acts; A drunken person should bear criminal responsibility for committing a crime.

Mental patients who have not completely lost their ability to identify or control crimes should bear criminal responsibility, but they can be given a lighter or mitigated punishment; A deaf-mute or a blind person who commits a crime may be given a lighter, mitigated or exempted punishment. These two kinds of people belong to limited liability.

Example:

Belong to the limitation of liability stipulated in the criminal law of our country have ().

A. Deaf and dumb people

B. the blind

C. Intermittent mental patients in normal mental period

D. drunken people

According to the third paragraph of Article 18 of the Criminal Law, a mental patient who has not completely lost the ability to identify or control his own behavior should bear criminal responsibility, but he can be given a lighter or mitigated punishment. Article 19 stipulates that a deaf-mute or blind person who commits a crime may be given a lighter, mitigated or exempted punishment. So choose a and B.

3. Subjective elements of crime

(1) criminal intent

According to the first paragraph of Article 14 of the Criminal Law, intentional crime refers to the psychological state of knowing that one's actions will produce harmful results to society, and hoping or letting such results happen.

According to the criminal law, intention can be divided into direct intention and indirect intention.

Direct intention refers to the psychological attitude of knowing that one's actions will produce harmful results to society and hoping that such results will happen. Indirect intention refers to the psychological attitude of letting one's behavior happen knowing that it may have harmful consequences to society.

The difference between direct intention and indirect intention is that direct intention may be knowing that one's actions are bound to have harmful consequences, or knowing that one's actions may have harmful consequences, while indirect intention only knows that one's actions may have harmful consequences. The indirect intentional factor is to let the harmful results happen. Laissez-faire is a laissez-faire attitude towards harmful consequences, that is, when the actor carries out an act in pursuit of a certain purpose, he knows that some harmful consequences may occur in the act; The actor did not want the harmful result to happen, nor did he want the harmful result not to happen, but he still carried out the behavior and did not take measures to prevent the harmful result from happening, but let it happen. Whether the result happens or not does not go against the will of the actor.

(2) Negligence crime

According to the provisions of the first paragraph of Article 15 of the Criminal Law, negligent crime refers to the psychological state that one should foresee the possible consequences of one's actions that will harm society and think that it can be avoided due to negligence.

Neglect can be divided into negligence and overconfidence.

Negligence is a kind of ignorance, that is, the actor did not foresee the possible harmful consequences of his actions; The reason for not foreseeing is not that the actor can't foresee, but that he didn't foresee because of negligence when he should have foreseen.

The fault of overconfidence refers to the psychological attitude that a person should foresee that his behavior may have harmful consequences to society, and credulity can avoid such consequences.

(3) The difference between overconfident fault and indirect intention

Indirect intention is to let the harmful result happen, and whether the result happens or not is in line with the will of the actor; The mistake of overconfidence is to hope that the harmful result will not happen, and the occurrence of the result goes against the will of the actor.

The indirect intentional actor carried out the act in order to realize other intentions, and subjectively did not consider whether measures could be taken to avoid the occurrence of the result, and objectively did not take measures to avoid the occurrence of harmful results; The overconfident negligent actor carries out this behavior because it can avoid the occurrence of harmful results.

Example 1.

A wanted to murder B, so he put poison in B's rice bowl. Unexpectedly, his friend C shared B's food. In order to kill B, A didn't stop C, and both B and C were poisoned. A's psychological attitude towards C's death is ().

A. overconfident mistakes B. negligent mistakes

C. Indirect intention D. Direct intention

The so-called indirect intentional analysis refers to the psychological attitude of the actor who knows that his behavior may produce harmful results to society and let such results happen. The so-called laissez-faire means that although the actor has no hope and actively pursues the occurrence of harmful results, he has not stopped or opposed it, but let it happen. Obviously, A didn't actively investigate the death of C, so it was indirect intention. So choose C.

Example 2.

The actor who holds a direct intentional psychological attitude is () to his own behavior and results.

A. know and let it happen. B. foresee and hope it will happen

C. know and hope to happen. D. have foreseen and let it happen.

Direct intentional analysis refers to the psychological state of knowing that one's actions will produce harmful results to society and hoping that such results will occur. So choose C.

4. Eliminate the causes of crime

(1) Self-defense

According to the provisions of Article 20 of the Criminal Law, justifiable defense refers to taking measures to harm the wrongdoer and stop his behavior in order to protect national interests, public interests, personal, property and other legitimate rights and interests of himself or others from ongoing illegal infringement.

(2) Special justifiable defense

In view of the serious social harm of violent crimes that seriously endanger personal safety, in order to better protect citizens' personal rights, the third paragraph of Article 20 of the Criminal Law stipulates special defense, that is, taking defensive actions against ongoing violent crimes that seriously endanger personal safety, such as murder, robbery and kidnapping, and causing illegal casualties to others, is not excessive defense and bears no criminal responsibility.

(3) Emergency avoidance

According to the provisions of Article 21 of the Criminal Law, emergency avoidance refers to an act that has to damage another minor's legitimate rights and interests in order to protect the national and public interests, as well as the person, property and other legitimate rights and interests of himself or others from the ongoing danger. Emergency avoidance is not criminally responsible.

Example:

Wang robbed Zhang with a dagger. In the battle, Wang hit his head on the corner and fell to the ground. The dagger fell to the ground. When Zhang saw this, he picked up a dagger and stabbed the king several times in the heart, causing the king to die. Regarding Zhang's act of stabbing the king to death with a dagger, the following statement is correct ().

A. it belongs to self-defense and does not bear criminal responsibility

B. it is an accident and does not bear criminal responsibility.

C. it is excessive defense and should bear criminal responsibility.

D. it is intentional homicide and should bear criminal responsibility.

Analysis of justifiable defense refers to the act of stopping illegal infringement in order to protect the state, the public, the person, property and other rights of oneself or others from ongoing illegal infringement. In this case, Wang fainted and his illegal infringement has stopped. Therefore, Zhang's behavior does not belong to justifiable defense, nor does it belong to excessive defense. It belongs to post-event defense and should bear criminal responsibility. The crime of intentional homicide refers to the act of intentionally and illegally depriving others of their lives. In this case, Zhang subjectively took a deliberate attitude towards Wang's death and objectively deprived him of his life, which constituted the crime of intentional homicide and should bear criminal responsibility. So choose D.

5. Incomplete state of crime

(1) Crime preparation

According to the provisions of the first paragraph of Article 22 of the Criminal Law, preparation for a crime refers to the situation that tools and conditions are prepared for committing a crime, but the perpetrator fails to commit a crime due to reasons other than his will.

According to the second paragraph of Article 22 of the Criminal Law, compared with the accomplished crime, the prepared offender may be given a lighter, mitigated or exempted punishment.

(2) Attempted crime

According to the first paragraph of Article 23 of the Criminal Law, if a crime has been committed, but it fails due to reasons other than the will of the criminal, it is an attempted crime.

(1) trying to achieve the goal and trying not to achieve the goal.

This is based on whether the implementation of the law is over or not. Attempted execution refers to the fact that the criminal has completed all the actions that he thinks are necessary to achieve completion, but he has not succeeded because of reasons other than the criminal's will.

Attempted execution means that due to reasons other than will, the criminal fails to complete all the actions he thinks necessary to achieve accomplishment, and thus fails to succeed.

Attempted implementation and attempted implementation reflect different degrees of social harm.

② Attempted crime and attempted crime.

This is based on whether the criminal act itself can be completed.

Attempted crime means that the act committed by the criminal may have been completed, but it has not been realized due to reasons other than the criminal's will.

Attempted can't mean that the criminal's own behavior can't be completed, so he can't succeed. Attempted impossibility can be divided into object attempted impossibility and means attempted impossibility.

According to the second paragraph of Article 23 of the Criminal Law, compared with the accomplished crime, the attempted crime may be given a lighter or mitigated punishment.

(3) Discontinuation of crime

According to the provisions of Article 24 of the Criminal Law, in the process of committing a crime, if the crime is voluntarily abandoned or the result of the crime is automatically and effectively prevented, the crime is suspended. There are two situations in which a crime is discontinued. One is to give up the crime automatically in the preparatory stage of the crime or before the completion of the act; The second is to automatically and effectively prevent the occurrence of criminal results at the end of the act.

According to the provisions of the second paragraph of Article 24 of the Criminal Law, if the discontinuer does not cause damage, he shall be exempted from punishment; If damage is caused, the punishment shall be mitigated.

Example 1.

Among the following behaviors, A's behavior belongs to crime preparation ().

A four people, A, B, C and D, planned to steal from a supermarket one night, and Party A provided a tricycle. At that time, because Party A was afraid to go, Party B, Party C and Party D stole a large number of expensive watches from the supermarket with tricycles provided by Party A..

B. Party A and Party B are enemies, so they seek revenge. One day, A learned that B was alone at home and went to B's house with a dagger. On the way, he suddenly had abdominal pain and had to go home.

C. One day, A went to B's house with a dagger, ready to kill B to vent his anger. On the way, I was patrolled by joint defense personnel. A was deeply afraid and turned to go home.

D. A shot at his enemy B in the bush, but missed B twice. B begged for mercy because of fear, and A stopped filming when he could continue filming.

A, B, C and D belong to * * * joint crime, and the standard for defining the stop state of * * * joint crime is that one person has accomplished it, and all of them have accomplished it. Among the problems, B, C and D have started to commit theft and completed it. Although A did not participate in the act, but participated in the plot of * * *, and did not withdraw its reasons in the crime of * * *, so A constitutes the accomplished crime of theft. Item B belongs to crime preparation, which refers to making tools to create conditions for crime. A walks to B's house with tools in order to get close to the crime target and prepare for the crime, so it belongs to the act of creating conditions for the crime. Items c and d belong to the suspension of crime. So choose B.

Example 2.

Li is an accountant in the savings office of China Construction Bank. On March 20, 2002, when he got off work, Li found that the cashier in our room put 20 thousand yuan in the desk drawer (unlocked). So Li took advantage of no one in the office and went back to the office to take out 20 thousand yuan, wrapped it in newspaper and hid it in a garbage bag under his desk, and then covered it with a carton. The case was committed the next morning, and the money was found by others. Which of the following statements is correct ().

A. Li's behavior belongs to the crime of corruption.

B. Li's behavior belongs to attempted corruption.

C. Li's behavior belongs to theft.

D. Lee's behavior is attempted theft.

The analysis first looks at whether Li's behavior conforms to the crime constitution of corruption and theft. To establish the crime of corruption, we must first have the subject qualification, that is, the subject must be a national staff member, and Li, as a staff member of China Construction Bank, meets the subject elements of the crime of corruption; Objectively, it is an act of embezzling, stealing, defrauding or illegally occupying public property by taking advantage of his position. The so-called use of the convenience of the position refers to the use of the advantages formed by the authority and status within the scope of the position, which is embodied in the convenience of being in charge, handling, keeping and cashier. Li's behavior does not conform to the objective aspect of taking advantage of his position, and he can only be convicted of theft, not corruption. According to whether the crime is accomplished or attempted, the theory of "out of control plus control" is adopted as the dividing standard of theft, that is, the victim loses control of the property, and the property has been placed under the actual control of the actor, and out of control is regarded as accomplished. In this case, Li has actually controlled cash of 20,000 yuan, which constitutes a crime. So choose C.

6.*** Same crime

According to the first paragraph of Article 25 of the Criminal Law, an accomplice of * * * is an intentional crime committed by two or more persons.

(1) The term "two or more persons" here generally does not refer to all persons, but must meet the requirements of the subject of the crime. As far as a natural person is concerned, he must be a person who has reached the age of criminal responsibility and has the ability of criminal responsibility. Therefore, if a person who has reached the age of criminal responsibility and has the ability to commit a crime by using a person who has not reached the age of criminal responsibility, it does not constitute a joint crime. If a unit commits a crime, the directly responsible person in charge and other directly responsible personnel commit the same crime as the unit itself.

(2) There must be * * * intention. "Intention" has two meanings: First, all prisoners have the same criminal intention; Second, meaningful communication between prisoners.

(3) There is no intentional situation:

(1) * * Not established by negligence * * established by crime.

② Intentional crime and negligent crime are not established.

(3) It is not established to commit the same crime at the same time.

(4) Intentionally continuous related criminal acts that have no subjective connection with each other do not constitute * * * accomplices.

(5) a crime other than an accomplice is not an accomplice.

⑥ Whoever harbors, shields, harbors or sells stolen goods without an accomplice in advance does not constitute an accomplice.

(4) Classification and criminal responsibility of * * * accomplices.

China's criminal law divides accomplices into principal offenders, accessory offenders, coerced accomplices and instigators.

Principal 1 name. According to the provisions of the first paragraph of Article 26 of the Criminal Law, those who organize and lead a criminal group to carry out criminal activities or play a major role in joint crimes are the principal offenders.

There are two kinds of principal criminals: one is the criminals who organize and lead criminal groups to carry out criminal activities, that is, the ringleaders in criminal groups. Second, other criminals who play a major role in the same crime.

The relationship between the principal offender and the ringleader: According to Article 97 of the Criminal Law, ringleaders are divided into two categories: one is the ringleader in a criminal group; The second is the ringleader in the crime of gathering people. However, the principal offender in a criminal group is not necessarily the ringleader, because in group crimes, besides the ringleader, other criminals who play a major role are also the principal offenders, but they are not the ringleaders. In the case of gathering people to commit a crime, in principle, the ringleader can also be identified as the principal, but in the case that gathering people to commit a crime does not constitute an accomplice, there is no distinction between the principal and the accessory, and the ringleader will certainly not take charge of the principal.

The criminal responsibility of the principal offender-the ringleader who organizes and leads a criminal group to carry out criminal activities shall be punished according to all the crimes committed by the group. The principal offenders other than the ringleaders of criminal groups are punished in two situations: those who organize and direct the same crime are punished according to all the crimes organized and directed by them; Those who do not engage in organizing or directing activities but play a major role in joint crimes shall be punished according to all the crimes they participate in.

2 accessories. According to the first paragraph of Article 27 of the Criminal Law, an accessory is a secondary or auxiliary role in an accomplice. An accessory shall bear criminal responsibility for all the crimes he participates in, but according to the provisions of the second paragraph of Article 27 of the Criminal Law, he shall be given a lighter, mitigated or exempted punishment.

(3) coerced accomplice. According to Article 28 of the Criminal Law, a coerced accomplice refers to a person who is coerced to participate in a crime, that is, a person who is not completely willing to participate in a joint crime under the threat of others and plays a secondary role in the joint crime. For the coerced person, the punishment shall be mitigated or exempted according to the circumstances of the crime.

4 instigator. An instigator refers to a person who intentionally instigates others to commit a crime by instigating, encouraging, persuading or other means. The establishment of an instigator requires the following conditions:

A the instigator must be a person who has reached the age of criminal responsibility and has the ability of criminal responsibility. Otherwise, the instigator is not established and the indirect principal is established;

B. there must be incitement;

C. there must be intentional instigation.

According to the provisions of Article 29 of the Criminal Law, the following three points should be paid attention to when punishing instigators:

A whoever instigates others to commit a crime shall be punished according to his role in the joint crime;

B whoever instigates a person under the age of 18 to commit a crime shall be given a heavier punishment;

If the instigated person has not committed the instigated crime, the instigator may be given a lighter or mitigated punishment.

Example 1.

The following statement about * * * and crime is correct ().

A. The coerced person is also an accomplice under duress when he commits a harmful act when his body is forced and he completely loses his freedom of will.

B.b organizes women's sales *, and C finds women for them and contacts customers, but never directly participates in management activities. Party C shall be punished as * * * of the crime of organizing sales by Party B..

C.A. is a financial officer of a state-owned holding company. One night, he deliberately left the window of the accounting room unlocked and the safe unlocked, and then instructed a middle school student B (16 years old) to sneak into the accounting room and steal the public funds kept by A. A and B committed corruption.

D.D., a staff member of a state-owned insurance institution, instigated the insured E to burn down his insured car and claim compensation from the insurance company, and then used his position of handling claims to claim 80,000 yuan for E, which was divided equally between them. Ding E constitutes a crime of corruption.

Analysis of * * * accomplice must require * * * criminal intent, and coerced accomplice refers to the person who is coerced to participate in the crime among * * * accomplices, and does not have the conditions of criminal intent, so A is excluded. Although C in item B does not participate in organizing sales *, it acts as a bridge between sellers and customers to enable others to sell *, which constitutes the crime of introduction and sales * alone. In item C, A is a duty crime, and student B has reached the age of criminal responsibility, which should be theft. Item d meets the requirements of the same crime. Fraud by state-owned insurance companies belongs to the crime of corruption, and D and E constitute the crime of corruption. So choose D.

Example 2.

In June 2006, Party A and Party B conspired to defraud Zhang 30,000 yuan, and both parties shared it equally15,000 yuan. During the review of this case, Party A voluntarily confessed the criminal fact of defrauding Wang 4,000 yuan in March 2003. When punishing fraud, the amount of crime should be ().

A.3 million yuan B.34 million yuan c. 1.9 million yuan d. 1.5 million yuan.

When analyzing the crime of * * * accomplice fraud, the amount of the crime should be determined by the amount of the actor's participation in * * * accomplice fraud, and the punishment should be based on the actor's position, role and illegal income in the crime. If Party A and Party B constitute a crime of fraud, the amount of crime shall be determined according to the amount of property defrauded by both parties, that is, 30,000 yuan. Moreover, since Party A defrauded Wang 4,000 yuan in 2003, the amount of crime after repeated fraud was 34,000 yuan. So choose B.

7. Crime of corruption

The crime of corruption refers to the act of state functionaries taking advantage of their positions to embezzle, steal, defraud or illegally occupy public property by other means. The crime of corruption belongs to the duty crime of state functionaries, and its main features are as follows:

(1) The objects infringed by this crime are complex objects, namely, the integrity of state functionaries and the ownership of public property.

(2) The objective aspect of this crime is the behavior of state functionaries who take advantage of their positions to embezzle, steal, cheat or illegally occupy public property by other means. The so-called "taking advantage of one's position" refers to the advantages formed by taking advantage of one's position and power, which is embodied in the convenience of taking charge, keeping, cashier and handling.

(3) The subject of this crime is a special subject, that is, national staff, including:

(a) personnel engaged in public affairs in state organs;

Personnel engaged in public affairs in state-owned companies, enterprises, institutions and people's organizations;

(3) Personnel appointed by state organs, state-owned companies, enterprises and institutions to engage in public service in non-state-owned companies, enterprises and institutions and social organizations;

(four) other personnel engaged in public affairs according to law;

(five) personnel entrusted by state-owned companies, enterprises, institutions and people's organizations to manage state-owned property.

"Public official" refers to the person who performs the duties of organization, leadership, supervision and management in state organs, state-owned companies, enterprises, institutions, people's organizations and social organizations. According to the legislative interpretation of the National People's Congress Standing Committee (NPCSC), when villagers' committees and other grass-roots organizations assist the people's government to carry out administrative work such as disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, disaster relief funds and materials management, social welfare donation management, state-owned land management, land acquisition compensation management, tax collection and payment, family planning, household registration and conscription, they belong to "other personnel engaged in public affairs according to law".

(4) Subjectively, it is direct and intentional, with the purpose of illegally occupying public property. The purpose of illegal possession of public property refers to the intention of the actor to transfer ownership after illegally controlling public property by taking advantage of his position.

According to the provisions of Article 394 of the Criminal Law, state functionaries who accept gifts in domestic official activities or foreign exchanges should not hand them in according to state regulations, and those who have a large amount shall be convicted and punished for corruption.

Staff members of state-owned insurance companies and personnel assigned by state-owned insurance companies to engage in official duties in non-state-owned insurance companies, taking advantage of their positions, deliberately fabricate insurance accidents that have never happened to make false claims and defraud insurance money for personal ownership, shall be convicted and punished according to the crime of corruption.

8. Crime of accepting bribes

The crime of accepting bribes refers to the act of state functionaries taking advantage of their positions to ask for or illegally accept other people's property and seek benefits for others. The crime of accepting bribes belongs to the duty crime of state functionaries, and its main features are as follows:

(1) The object of the crime of accepting bribes is the integrity of public servants' job behavior and the normal management activities and reputation of state organs.

(2) The objective aspects are as follows:

(a) taking advantage of his position to ask for other people's property;

Illegally accepting other people's property and seeking benefits for others;

(3) Any state functionary who, in economic exchanges, violates state regulations and accepts kickbacks and service fees in various names and owns them by himself shall be punished as accepting bribes;

(4) Any state functionary who, by taking advantage of his authority or position, seeks illegitimate interests for the client through the acts of other state functionaries and extorts or accepts the client's property shall be punished as the crime of accepting bribes;

(3) The main body of the crime of accepting bribes is state functionaries, including those who are engaged in public affairs in state organs; Personnel engaged in public affairs in state-owned companies, enterprises, institutions and people's organizations; State organs, state-owned companies, enterprises and institutions, and personnel assigned to non-state-owned companies, enterprises and institutions, and social organizations to engage in official duties; Other personnel engaged in public affairs according to law. Engaging in official business according to law is the essential feature of the subject of accepting bribes. Non-above-mentioned personnel can not be the subject of this crime, but they can be * * * criminals of bribery. According to the criminal law, a unit can be the subject of bribery.

(4) The subjective aspect of the crime of accepting bribes is direct intention. The intention of accepting bribes includes the intention of illegally demanding other people's property and the intention of accepting other people's property to seek benefits for others, that is, the intention of trading power and money.