[104th]: toy making Jimen why suddenly became a gun? - in criminal justice objectivity and Countermeasures (on)2017-01-12 00:28:42 138 ℃
Time: January 6, 2017 18:30~21:00
Location: China University of Political Science and Law (Jimenqiao campus) research building conference room B209
China University of Political Science and Law: Center for public policy research
Moderator: Zhao Peng, associate professor, School of government, China University of Political Science and Law
All the students and friends of the media, in accordance with the decision of the forum to habit, I put the theme events and related examples to do a background. The network spread very wide Tianjin aunt stall balloon was jailed for three and a half years "incident, the illegal possession of firearms and sentenced to 51 years imprisonment in three years and six months Zhao Chunhua boyle. Yesterday, Zhao Chunhua refused to accept the Tianjin City Court of first instance verdict, appeal to the Hebei District. Hebei District court has accepted.
Lawyer Xu Xin view: imitation guns is not genuine? First, the gun shaped not guns, muzzle is 100 times than kinetic energy and real, to be identified as firearms, with genuine conviction against common sense. Second, Zhao Chunhua has no subjective intent of crime. Zhao Chunhua placed more than two months of balloon shooting booth has not been punished, and monthly pay booth fee, the lack of awareness and understanding of their illegal behavior. Third, Zhao Chunhua set up a balloon shooting booth to make a living behavior, did not cause personal and property damage, no social harm, not up to the extent of criminal punishment.
One of the focal points: 1.8 joules / square centimeter how much power? According to the Ministry of Public Security issued in 2010 "public security organs involving firearms, ammunition performance appraisal work regulations", not to launch a non-standard format firearms and ammunition, when launching the projectile muzzle kinetic energy is greater than or equal to 1.8 joules / cm2, all identified as firearms.
The focus of the two: the current gun identification standards are too low? In recent years, imitation guns, toy guns were identified as genuine and frequent cases. Fujian Liu Dayu to buy 20 imitation guns were sentenced to life imprisonment, causing social concern.
The gun into the penalty: the Ministry of public security data show: from 2011 to 2015, the national "uncovered the illegal manufacture, sale of air guns of various types of firearms, imitation guns and other more than 9000 cases, suspects were arrested more than 8". Zhejiang Province, Shaoxing City Public Security Bureau Paojiang Traffic Police Brigade tactical squadron captain Qian Weiqiang in 2013 has been hit by a car because of coma in law enforcement, "Shaoxing Evening News" is known as "the most beautiful Shaoxing police". However, he now has a new identity: suspected of buying and selling and possession of firearms suspects. "I'll buy a BB gun and sell one. In 2015 the home was arrested." Qian Weiqiang said: "the insiders have come to persuade me that I can certainly be sentenced to slow, I just do not want to plead guilty. As a shooting athlete, a police shooting instructor, I think I have a right to say what is a gun."
The sale of a toy gun to life imprisonment: June 2012, Zhejiang Taizhou cracked the Ministry of public security supervision of large network Fanqiang case, "booty" includes 1988 imitation guns, more than 110 air gun bullets, plastic bullets, bb. Principal Yan Zhiyuan sentenced to life imprisonment. This is so far the first simulation gun life imprisonment case.
The Quanzhou intermediate people's court ruling in July 2015 to test "smuggling weapons" case, sentenced to life imprisonment.
The high court of Hebei on Wang Yinpeng purchased from Hongkong exit (taobao.com Hongkong purchasing) 16 Hongkong legal imitation guns, illegal smuggling of weapons to the crime, the crime of illegal trade in firearms, possession of firearms, eventually sentenced to life imprisonment.
Above is the background of the case. Participate in the Forum: China University of Political Science and Law Professor PI Qi Lin Ruan, China University of Political Science and Law Professor, China University of Political Science and Law Professor Bing, Beijing Institute of Technology professor Xu Xin, Tsinghua University professor Lao Dongyan, Beijing handing united law firm Zhang Qingfang lawyers in Beijing in the Beijing Kyoto Law Firm lawyer Zhu Mingyong, senior partner of the Law Firm lawyer Zou Jiaming, Dr. Yin Shaocheng of Capital University of Economics and Business.
Please speak to Professor Qi Lin ruan.
First, China's gun control laws and conviction and sentencing standards are very strict. Criminal law 125th illegal sale of firearms, ammunition, explosives, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death. It is noted that this is only the sale of firearms, which is often done in the international market, and there is no precedent for death penalty. Military firearms, gun two reached more than three years the standard of conviction. More than 5 military firearms, gun 10 is more than ten years of fixed-term imprisonment. So we have heard of smuggling more than 20 simulation guns were sentenced to imprisonment, which is not surprising, Tianjin aunt that is 6, a little more than three years, a half year is three years and six months. In this sense, our visible state control on guns, conviction and sentencing standards, was very strict, but also must pay attention to the consequences and is not dangerous elements, it is abstract dangerous crime, also known as behavioral offense. So there is no excuse for not having a serious effect on conviction.
Second, why in recent years this problem is becoming more and more prominent? Because of the change in the applicable firearms identification after 2010, about the gun identification criteria is greatly reduced. I saw an article of Chinese People's Public Security University, now the standard was reduced to only have 1/10, this change is well documented, our textbooks have access to this information, feel the change is too big. After this change, what is the problem? Involved in illegal gun conviction and sentencing standards already is relatively serious, 2010 public security of guns and sentencing standards is greatly reduced, the natural expansion into sin, severe "gun" new standard firearms and inherent inconsistent, uncoordinated cause problems are more obvious, this is second the point. In other words, in fact, after the standard changes in firearms, should be adjusted accordingly on the criminal law of firearms and ammunition conviction and sentencing standards. But in fact did not make the appropriate adjustments, which led to the contradiction in recent years more prominent.
Third, why is there a conflict with the general sense of fairness? The relevant personnel in accordance with the formal judicial interpretation to applicable law, flexibility is relatively weak, or consider smaller components to deal with the problem It's only human. factors have a great relationship. In this case, I do not know what the reason, but as a case of the police station, know the shooting booth in the playground, the booth or complete formalities, but the thought of criminal responsibility. As a criminal case filing, a little attention, or really do not exceed the standard. After this case as a criminal case, the procuratorate smoothly into the prosecution, the court guilty verdict smoothly, this process makes us feel very surprised, because the conflict between Tianjin and ordinary people aunt case was common sense, but the right local sentenced, which makes us very surprised.
Some people ask, if such a case from the law to give her off, there is no technical possibility? In fact, there is a possibility. We know that any crime, especially the constitution of the felony must have at least two conditions, one is the objective implementation of the illegal sale or possession of firearms, the objective has been implemented. The second is the subjective intention, that is knowing. In this case, it is obvious that, as aunt, she did not realize that they hold a gun. Of course, this is a very complex issue, the situation in the end the application of the law to understand the error or the fact that the error is a bit complicated. But basically, the concept of a gun is still a problem, if the problem is the legal concept of firearms should be a mistake in understanding the law. Mistake of law has three main academic viewpoints: the first one is to blame the need to say, the second is not necessary to take the blame, the third is more popular, the possibility of their illegal behavior did not foresee. In this case, even if she knew from the mistake of law, she has license, from the hands of others to shoot from the stalls, she thinks is shooting small balloons, did not recognize the possibility of illegal, it can be. Since it is a mistake of law, did not realize that their behavior has been illegal, according to the general principle, should reduce the guilt. Relief of guilt. Even in accordance with the judicial interpretation of more than three years, just sentenced to a year or three? Can I have another reprieve? No coordination of legal unreasonable situation, as the relevant personnel must take it as their own daughter, dressed up, the unreasonable and inconsistent place cover, mask a mask, to resolve the contradictions, these places are not put in front of us. There are press supplement about guns explained that this can be extended to hold, also can avoid or reduce the liability of this case, so the legal basis, theoretical basis is very full, anyone with a conscience as judicial personnel, from the public security criminal, to arrest procuratorial prosecution to the court. In the common sense and make less the result of the conflict can be, but they do not last. So the case is a big problem, not only that inadequate coordination of legal and related personnel in this area are not according to the common sense of common sense, and then use the science theory and the judicial interpretation of the flexible handling of the case, which is consistent with the public's sense of fairness.
To solve the problem of whether the public security requirements of the police to identify the standard of the gun again? Or adjust the conviction and sentencing of criminal law standards? This is not easily, not nonsense. Why not say, can not say? Public security standards for the establishment of firearms, it is sure that such firearms should be included in the scope of regulation, which is from the needs of the public security of society. If there is such a social needs and social needs, it is also included in the scope of the definition of firearms. But it should be made clear that what kind of guns can only do administrative punishment, what kind of firearms need to be incorporated into the scope of criminal offenses. To develop targeted, differentiated punishment rules.
Thank Professor Qi Lin Ruan wonderful opening, he detailed interpretation of the law reminds me of two words: one is a criminal defense lawyer wrote in his book, "I read the book of the law, that it will always need interpretation; the other one is a scholar's view of law" a judge should not be mechanical, he has the legal obligation to fold ironing". Then the teacher finally talked about guns Ruan standard problem, I want to say, this regulation standard in China positioning for the technical specification, even if the stakeholders have different views on it, there is no chance to bring an administrative lawsuit. But in a country outside you will find them on the executive authorities to formulate a considerable part of the control standard, the standard of environmental protection, food safety standards and other standards, proceedings allow stakeholders: some people think that standard is not strict, the protection degree is too low and the lawsuit; others believe that over regulation and a lawsuit. However, our country has not set up this mechanism, resulting in the loss of formal legal channels to discuss and determine the appropriate regulatory norms of the opportunity. Please ask the professor.
I majored in criminology, the school opened a new course called sociology of deviance. In this case from the angle of criminal policy to talk or to talk about personal views from the perspective of criminology. The change of our country "s control standard shows a change in the severity of public order. In our case, the criteria for the identification of firearms in the gradual stringent, the proportion of the muzzle from 2001 greater than 1.6 joules to now, 1.8 joules. Why is gradually harsh? Peking University Chu Huaizhi teacher had a famous saying: "want to crack down on to strict but not severe." Is strict, strict, not heavy, not by defend. If the gun is a tool to kill, we can see no end to the control of similar objects, we see the foreign imports of slingshot in many places, playing ball, a slingshot can kill a man. Therefore, the ultimate goal of prevention and control of things is to prevent people. Anti human body, the prevention of freedom of movement of people, and so far we have the household registration system, the prevention of the so-called free migration is the concept of anti human began. Why did the ancient limit merchants? The main thing is disgust, fear of the flow of merchants and businessmen utilitarian awareness. So in the end is the prevention or control of things, and now there is a gradual tightening trend.
The teacher said that the understanding of the law is wrong, this is because there is a great deal of misunderstanding about stability and order, it can be said that China's criminal policy in the implementation of the absolute way of thinking. What is absolute doctrine? Stability overrides everything, the murder must be solved and three first, one vote veto, the criminal policy of how to run to come in? This shows a way of thinking, namely the two opposite contradiction between, how complex population is the contradictions between ourselves and the enemy? Humans and humans are overlapping, not a single classification. So this way of thinking also has a great impact. Including some of the old professor at the school also talked about social justice and protection of equal rights to fight against crime and protection of rights equal. This concept we feel very objective, in fact, this is a wrong idea. The protection of rights must be the premise of our fight against crime and social justice. If this is not reversed, it can be equal. But the reality is not, in practice, the two must be equal when social justice. So I think the problem reflected in this case, we must pay attention to our criminal policy.
I put forward the concept of "social hostility", which is from one hundred thousand groups of events every year, this hostility is very extreme. Hostility is a very elementary concept, China is a society of acquaintances, acquaintances are not hostile to society, to be hostile to strangers. Why don't you want to see a stranger? Because we do not know him, I know him, I can give up all the principles. So this kind of hostility is permeated in the middle of the society, when utilitarianism comes, we will break out. How can this hostile thinking be put into criminal policy? I would like to have humane feelings of law enforcement or judge, how can the edge of the poor old lady to make such a penalty? This mechanical penalty is not completely without even, in juvenile justice, and even some young judges slowly removed the juvenile offenders sentenced.
Thank you, Mr. Tan, who has provided us with a profound insight into the incident from outside the law. Here's professor Xu Xin, who is deeply involved in this.
A year and a half ago, I took part in Liu Dayu's arms smuggling case. I took over the case, the vast majority of people think that there is no hope, but I am in a year and a half, almost every day to help him, so in October last year, the Fujian high court to start the retrial, I am very pleased. It is said that the retrial court in December, but now due to the emergence of Tianjin aunt case, making the existence of possible changes in the time of hearing.
I took the Tianjin case to defend her and invited Si Weijiang. These two cases in stark contrast, one is just over the age of 18 by a single Taobao. The other is the 51 year old aunt, according to her daughter said to be at the age of 54, and I went to the detention center to meet the feeling like the age of more than and 60. These two cases reflect China's gun standards. I gave them the innocence of reason, just said: no Professor Qi Lin Ruan subjective intent, may not know guns. The balloon with air gun stalls, when we have seen more and more lively place in the stall, but usually we are not aware of it may be guns, will constitute a crime. Liu Dayu to buy the guns in the Internet, will not have the picture as "health warnings, remind you this may be dangerous, may be weapons, may be more than how many joules, there is no such signs, so he didn't know. In terms of objective behavior, Liu Dayu accused of these guns have not been received, the customs seized. From the perspective of evidence, the Liu Dayu case, the evidence is not sufficient to prove that Liu Dayu is to buy imitation guns seized, seized, from him to buy the identification and storage of evidence chain rupture, and firearms identification conclusion has some problems.
From the standard gun, a total of 9 case of Tianjin aunt, 6 of them were identified as firearms, in addition to a more than 3 joules, the other is at 2.2 joules, 2.3 joules, and one is 2.55 joules, the injury rate is very small. This is related to the standard of whether the gun is reasonable, the problem is very important, can not be avoided. When such problems arise on a large scale, we must think about the problem of standards, rather than that the judiciary does not consider human feelings, no conscience. According to the statistics of the Ministry of public security from 2010 to 2015, the number of cases involving firearms was 80 thousand. I saw in the China referee instruments online documents more than 8000, 2016 is not the end of the 7700, there are thousands of people because they do not know is no guns, gun crime was sentenced to a year, this is a very big problem. So then I think the case study of Liu Dayu problem is very important, has been calling for attention to the problem. Because every year thousands of people, but thousands of people may be behind thousands of families facing the crowning calamity. So what is the concept? The 2001 standard is the muzzle is 16 joules per square centimeter, so that the muzzle can break the skin at close range, can cause skin trauma. While the 1.8 Joule destruction rate is very low, according to the practice standards of people, from the eyes of 10 cm and 20 cm place to shoot, wounded eyes. If in accordance with this standard, any hard objects such as mobile phones, pens are so lethal, then all things are forbidden to go back to the stone age? But the stone age there are stones, stones greater lethality. Again for example, now the police spent most of the six gun pistol, which is considered to be a bad weapon, lethality is not particularly large, is 412 joules, almost 1.8 joules of 250 times or more.
Therefore, we look at this issue, we should consider the rationality of the firearms identified standards. Of course, we did not directly talk about this point of view, we believe that the implementation of the 2008 1.8 Joule standard should not apply, and why? Because of the "criminal law" of firearms, as well as the gun management act of 1996, said the gun has been extended to explain too much. As Augustin said, "when we say time, we all know what time is, but we don't know what time is when we define time. The current standard is that we do not know what firearms. So the question of standards is a very real problem. Moreover, the host said standard, through the study we found that the Ministry of public security standard is divided into mandatory standards and recommended standards, 1.8 joules per square centimeter is the recommended standard, and meet the mandatory standards must be through legal procedures, to be tested. So from the point of view of standardization, I think 1.8 joules per square centimeter should not be forced to apply.
I think we can focus on the more general problems through the case. I put forward three questions through the case of Tianjin aunt:
First, the standards should be improved gun. First back in 2001, or 16 joules per square centimeter.
Second, judicial interpretation. Liu Dayu cited the Supreme Court and the Supreme Procuratorate and judicial interpretation, involves a problem -- the China simulation gun such a real guns and gun also convicted of criminal law scholars can consider a problem, different injury force guns, whether in the conviction and sentencing to discrimination?
Third, I found that the case involved in the identification of firearms is a self identification. So there are two sets of judicial authentication system, a set of judicial authentication institutions, but according to a set of public security identification management approach to the implementation of management, involving the case of firearms by their own identification report. Through the case of the system, we need to seriously consider and respond to.
Thank you very much professor Xu Xin wonderful speech. His speech is a very important issue, namely the Ministry of public security as the administrative department or the competent authorities of the gun making investigation standards for court criminal trial is only a reference, or legally binding directly? If the latter is the case, I want to have a legal question: according to the "legislative law" in eighth and ninth, the law of crime and punishment at any time can only be enacted by the National People's Congress and its Standing Committee, if the public security department standard has a direct constraint criminal judgment effect range will lead to the public security department as formulated by the administrative organs can change the standard of criminal responsibility, in order to break through the provisions of the "legislative law". Professor Lao Dongyan is invited to speak.
I remember seeing a statement of the Nanjing intermediate people's court a few days ago, the Nanjing intermediate people's court for the implementation of that rumor robot assisted investigators, said 2017 has no such plan, the reason is the judicial experience and value judgment of the occupation. This shows that when we make a case decision, in order to allow everyone to accept, it is important to use experience and value judgments. In these cases, the judicial personnel may also feel the conclusion may be a problem, the research of criminal law requires them to provide some technical ways and reasons, indicating their reasonable value judgment.
It is necessary to demonstrate the rationality of the value judgment of the judgment conclusion. The teacher said that such cases should be drawn without guilt, the guilt of probation is unacceptable. Conclusion can be drawn from the criminal law.
First, the standard on firearms. In judicial practice, of course, the standard of firearms, as the Ministry of public security to determine the standard 1.8 joules. The question is whether the criminal law and administrative law should apply the same standards? There are a lot of examples in the interpretation of criminal law, which means that if the purpose of protection is different, different interpretations are needed. Such as "traffic law" to escape explanation, even if you do not have any violation of traffic regulations, after a traffic accident must be left at the scene, if you run it as it is in order to escape, accident responsibility to get, but this escape can not constitute the crime of traffic accident escape in traffic accident crime, because the increased risk of injury casualties, so aggravated punishment. Back to the guns, there are different interpretations. Our guns not solely on the basis of the concept of understanding, involving 125 gun crime, illicit manufacturing of firearms and ammunition transport business mail storage of explosive crime legal punishment, the minimum is three years, theft of firearms and ammunition is more than three years, ten years for armed robbery, what is this concept? That is to say, gun crime itself is a kind of crime against public security, which needs to be defined by the combination of other laws. For example, the "criminal law" in the crime of intentional injury, legal punishment is three to ten years of serious injury; and the other, such as the crime of arson, arson and endangering public safety law is also a period of three to ten years. According to the theory of criminal law, in order to coordinate with other laws, especially the dangerous crime, the public security is at least to endanger the human health and life. If it is possible that the act may result in minor injuries, or the risk of having a minor injury is less than 114. We can also do the same interpretation, 125, the statutory punishment is also more than 127 years, these two crimes or abstract dangerous offense, did not infringe on any legal interest sentenced to three years to ten years. Furthermore, the robbery, armed robbery, and robbery causing serious injury death tied, was sentenced to ten years or more, that in the "gun" armed robbery at least causing serious injury and the possibility of death, if not, cannot be applied to such a heavy punishment.
In this way, the gun should be limited to explain. Should be limited as the gun itself has the possibility of causing serious injury or death, it may be interpreted as a criminal law the second chapter related crime guns guns.
Not only Liu Dayu case, the case is now the same aunt in Tianjin, if only 1.8 joules or a few joules of two points, the gun itself does not have such a large lethality. Some people think that this is to shoot close eyes. The eyes are the most vulnerable parts of the body, then pick up a small stone to rob, can be explained as armed robbery as serious?
Second, just as the teacher with the teacher Xu Xin said Qi Lin Ruan, possession of firearms, illegal trade, transportation or illegal smuggling of firearms, is intentional crime. Intentional accomplished crime is clearly there is a basic requirement for all elements of the objective elements and subjective behavior is that, if you lack of knowledge, whether due to negligence or unforeseen reasons, all will negates intentional consequences. This kind of behavior, in itself did not realize that this is a gun, the elements of the objective elements, you should know the subjective.
Third, in addition to the lack of subjective awareness of the intention to prevent the possession of firearms, or the intention of buying and selling firearms, then the third point is about the illegality of the error. That is the third reason: the actor has no knowledge of the illegal nature of his actions. Tianjin aunt case and the Liu Dayu case in fact did not realize the perpetrator, but the wrong understanding of the illegal conduct of the conclusion of the innocent, requires that you must have a reasonable understanding of the inevitable.
In conclusion, I think that in such cases, there are at least three justification to draw conclusions even so guilty, sentenced to probation, for me it is not acceptable, from the legal theory should draw conclusions.
To distinguish the genuine fake gun with the meaning of criminal interpretation on the implementation, if value judgment is reasonable, then try to explain to you that through technology, reasonable interpretation conclusion, with law text set up relationship. So even if the gun itself is considered a major power, but as Mr. Xu mentioned, with genuine imitation guns are still different, suggesting that the gun itself will directly affect the degree of legal interest infringement size, which will determine the size of the illegal behavior, will ultimately affect the sentencing. Another factor that holds or holds genuine fake gun, sale or the sale of genuine fake gun, necessity of prevention is not the same, reflected in the sentencing is the science of conviction and sentencing.
I have done two years of prosecutors, judicial practice has a certain understanding, found that most of the cases are related to the level of litigation, especially the problem of evidence. However, in many cases, the theory of criminal law, in particular the substantive law, there are many theoretical resources can not be fully utilized. The same is true of Liu Dayu's case, he is not guilty, technically speaking, the defense point. There are some time ago stolen the owner and the thief wrestling was killed, the case that they are guilty? In many cases, the legal person in accordance with the so-called formal logic concluded that there may be problems. Most people think the conclusion must be more reasonable. You should think about whether your logic is wrong.
Sheshera teacher is very professional analysis, the topic will again lead back to the internal perspective of the law, there is a professor who asked China University of Political Science and Law.
Thank you for the experts and students attend, judgment on the case of the entity, I am in favor of managing the Yan teacher's opinion, that the case is innocent, Professor Lao Dongyan and the same reason, will not repeat them.
In this case the need to discuss the problem, why people away from the court? Why is there such a judgment?
First, why the police arrested gun case? An aunt placed balloon stalls, did not offend anyone, but why not with her aunt? It is the bottom of society, such cases do much, is the doctrine of severe punishment. Severe punishment is accusation tendency more and more, more and more detailed explanation, more and more sinners. The most obvious is the doctrine of severe punishment, I have been critical of this thing, American adults 1/3 in prison, so the United States now have some problems. Severe punishment is the United States in the walk, light punishment is the Nordic walking, the average American term is three years, the average term is three months. Before I sit in a court case in northern Europe, prosecutors said the sentencing should be 12 months, lawyers should be arguing for 7 months. So we must recognize the severe punishment for social order will be affected.
Second, the current standard of firearms, do not know the criminal law scholars point of view? In the field of administrative law, the court regards the following normative documents as the reference, the standard itself only has the reference value, does not have the restraint judge value.
Third, if the development of firearms identified standards, the process of scientific research in the process of formulation? A rule has its own procedures, can be published on the Internet, to seek the views of the people, and then develop specific content.
Fourth, the judge why numb? This kind of case, the people sent to the jury simply can not come out, so that the people how to achieve the scientific nature of China's justice? This is a long time to engage in a professional numbness.
Thank you, Professor Ho's brilliant speech, he made two very important questions. First, several experts have also mentioned that, if the administrative organs of the control standard in criminal adjudication is without choice, not review for it may lead us to deviate from its case according to the specific circumstances of the criminal law of justice, according to the responsibility to determine the extent of the basic mission of retribution and condemnation, and become just to maintain deterrence for administrative supervision order and tools, and the appropriateness of legitimacy, which means the administrative supervision order of its target in some cases may be highly suspected. Second, our society may have greatly small violations of law enforcement, due to budget, preparation and other reasons can not end against the illegal actions of all, in this case, it is important to choose the priority of the law enforcement object becomes. But in reality, the law enforcement agencies seem to put too much resources to the allocation of the field seems to be less serious, and such as environmental pollution, food and drug crimes, but there is no more law enforcement resources allocation. For the problem of the choice of law enforcement priority, I think it may not only be a legal issue, but also need to attach great importance to our political system. Please have the following Beijing handing joint lawyer Zhang Qingfang.
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