The whole nation is swept black do at holding a press conference first on April 9, 2019, 4 when release procuratorate of top people court, top people, the Ministry of Public Security, judiciary publicly to combine print and distribute to the society are swept about dealing with black the opinion that removes evil case, answer reporter query.
The file is added after one " procuratorate of top people court, top people, the Ministry of Public Security, judiciary about handling case of vicious power criminal the opinion of a certain number of problems " ; File 2 " procuratorate of top people court, top people, the Ministry of Public Security, judiciary is carried out about dealing with " weak force " criminal case the opinion of a certain number of problems " ; File 3 " procuratorate of top people court, top people, the Ministry of Public Security, judiciary about dealing with " cover a road to borrow " criminal case the opinion of a certain number of problems " ; File 4 " top people court is supreme judiciary of people procuratorate the Ministry of Public Security deals with about handling the property in case of criminal of black vicious power the opinion of a certain number of problems "
[file one]
Procuratorate of top people court, top people, the Ministry of Public Security, judiciary
About handling case of vicious power criminal the opinion of a certain number of problems
(on April 9, 2019 print and distribute)
Fulfil to be carried out seriously in the center of begin sweep black the deploy requirement that eliminates evil special accuse and denounce at a meeting, procuratorate of proper understanding and courtyard of civil code of applicable and top person, top people, the Ministry of Public Security, judiciary " about handling case of crime of black vicious power the directive opinion of a certain number of problems " (the law sends ﹝ 2018 ﹞1, the following abbreviation " directive opinion " ) , reach the regulation of file of concerned judicatory explanation, normative sex according to procedural law of criminal law, criminal, now to handling case of vicious power criminal a certain number of problems offer following opinions:
One, the overall demand of case of criminal of conduction vicious power
The serious society that executive authority of mechanism of procuratorate of 1. people court, people, public security and judicatory wants to know vicious power deeply to violate crime is endangered, do not waver in the least the ground insists to punish severely guiding principle lawfully, investigating, sue, adjudgement, carry out each phase, apply a variety of law measures to be reflected in the round lawfully from punish severely place spirit, strong awe vicious power violates a criminal, significant blow and precautionary vicious power violate crime.
Mechanism of procuratorate of 2. people court, people, public security and judicatory executive authority should insist strictly to handle a case lawfully, ensure in the case the fact is clear about, evidence really, on sufficient foundation, hold vicious power and group of vicious power crime truly definitely, prevent to unplug artificially stoutly tall perhaps reduce cognizance level. Should insist to carry out implement policy of criminal of aid of broad severe look, the sex of danger of subjective and malign, person according to person of guilty suspect, the accused, position in group of crime of vicious power, vicious power, action and the responsibility for an offence in specific crime, cogent accomplish wide severe have according to, punish when its blame, realize the unity of political effect, law effect and social effect.
Mechanism of procuratorate of 3. people court, people, public security and judicatory executive authority want to develop respective function adequately, division of labor is responsible, each other closes suitably, restrict each other, insist to reform a requirement in order to try the criminal suit system for the center, carry out strictly " 3 regulations " , consciousness of ceaseless aggrandizement program and evidential consciousness, strengthen law effectively to supervise, ensure execute the law strictly, just judicatory, sufficient safeguard party, lawsuit shares each lawsuit right of the person.
2, the cognizance standard of group of crime of vicious power, vicious power
4. vicious power, it is to point to often get together is together, with violent, minatory other perhaps measure, in particular area illegal crime activity perhaps is carried out for many times inside the industry, to be not do evil, common people of bully and oppress, order of life of disturbed economy, society, cause relatively abominable society effect, but the illegal crime organization that has not form gangdom property to organize.
5. is pure for obtain illegal economy interest and carry out " yellow, bet, poison, pilfer, grab, cheat " wait for illegal crime activity, do not provide promising to be not feature of common people of do evil, bully and oppress, perhaps love dispute, family dispute, neighborhood dispute, labor dispute, legal dispute over obligation because of the marriage of oneself and close relative and cause what belong to there is good reason for it truly with etc to violate guilty activity, should not regard vicious power case as processing.
6. vicious power is 3 people above commonly, get together person relatively fixed. Get together person, it is the illegal criminal that effect of organization, plan, direct has in pointing to what carry out in vicious power to violate guilty activity. The member is relatively fixed and accord with vicious power other cognizance condition, but carrying out illegal crime activity for many times is by different member organization, plan, direct, also can maintain for vicious power, the member that action relates before having all can maintain the person that it is get together.
The other member of vicious power, it is to point to know or ought to know with other often get together is to carry out illegal crime jointly together, still according to get together person the illegal criminal that organization, plan, direct participates in illegal crime activity, include to already sufficient evidence proves but the personnel that has not bring to justice, and do not grant to investigate legal duty because of legal status, perhaps violate the personnel that guilty activity already was punished by administration or criminal because of sharing executive vicious power. Only because of temporarily employ or by employ, use or be reached to suffer becloud to participate in a few vicious power to violate guilty activity by benefit in order to, should not maintain commonly for vicious power member.
7. " often get together is together, with violent, minatory other perhaps measure, in particular area illegal crime activity perhaps is carried out for many times inside the industry " , it is to point to person of guilty suspect, the accused at 2 years in, with violent, minatory other perhaps measure, in particular area illegal crime activity perhaps is carried out for many times inside the industry, and the person that include get together inside, at least due 2 identical members are participated in for many times carry out illegal crime activity. To " get together is together " time is apparent shorter, carry out illegal crime activity to just be achieved " for many times " standard, and still can't cause relatively abominable effect, should not maintain commonly for vicious power.
The illegal crime activity that 8. vicious power carries out, basically trade to force, imprison intended harm, illegally, destroy property blackmail, intentionally, gather a crowd affray of affray, provoke, but also include to provide promising to be not feature of common people of do evil, bully and oppress, basically be the activity of other illegal crime of the method with violent, menace.
Vicious power is accompanied possibly still carry out open gambling house, organization to walk the street, force to walk the street, traffic drugs, carriage drugs, production drugs, rob, loot, gather a crowd disturbed society order, gather a crowd disturbed public order, traffic order and gather a crowd " beating " wait for illegal crime activity, but only before narrate accompany executive illegal crime activity, and cannot maintain a promising to be not feature of common people of do evil, bully and oppress, should not maintain commonly for vicious power.
9. handles case of vicious power criminal, "Carry out illegal crime activity for many times " should include guilty activity 1 times at least. Force to trade to be being carried out repeatedly, imprison illegally, the illegal behavior of the single character such as affray of blackmail, provoke, second clue, amount still does not make sheet crime, but crime should regard as processing after the provision that perhaps concerns file of judicatory explanation, normative sex according to criminal law is cumulative, in maintain whether to belong to " carry out illegal crime activity for many times " when, but already will use at cumulative irregularity behavior plan is guilty activity 1 times, other illegal action is calculated alone the frequency of illegal activity.
Already was handled or already regarded civilian dispute as mediate, vicious power is belonged to to violate guilty activity truly via check after, all can regard the fact of cognizance vicious power as the basis, but do not accord with legal status, must not investigate legal duty afresh.
10. is maintained " order of life of disturbed economy, society, cause relatively abominable society to affect " , ought to combine frequency of enroach on object and its amount, illegal crime, method, dimensions, person to damage sequential, pecuniary loss the element such as the amount, illegal income amount, rate that causes social order disorder and the influence degree that feel to people safety holds integratedly.
Group of crime of 11. vicious power, it is to point to accord with vicious power to maintain a condition entirely, accord with guilty group again at the same time the guilty organization of statutory requirement.
The first member of group of vicious power crime, it is to point to the criminal that has effect of organization, plan, direct in group of vicious power crime. The other member of group of vicious power crime, it is the relatively fixed crime organization that shows know or ought to knowing is to carry out crime jointly composition, still accept first member leader, management, direct, participate in this criminal that organizes guilty activity.
Group of vicious power crime ought to organically carries out guilty activity for many times, accompany possibly still at the same time carry out illegal activity. The illegal crime activity that place of group of vicious power crime carries out, consult " directive opinion " the 10th the 2nd regulation is maintained.
12. full member is first perhaps element, get together person with etc important member all is minor, old people, disabled, when group of crime of cognizance vicious power, vicious power ought to particularly discreet.
3, the concerned requirement that uses policy of criminal of aid of broad severe look correctly
13. the get together to vicious power person, group of crime of the first member of group of vicious power crime, important member and vicious power, vicious power is common the prime culprit with the serious responsibility for an offence in crime, should apply legal provision correctly to increase penalize strength, to ought to sentencing severe punishment or capital punishment lawfully, sentence severe punishment or capital punishment stoutly. Want to master await trial of be bailed out strictly at the same time, master strictly do not sue, master probation, commute a sentence, parole strictly, master the go to a doctor outside protecting strictly applicable condition, make full use of the legal measure such as qualificatory punishment, belongings punishment is all-around from punish severely place. To according with criminal law thirtieth of one of 7 regulations, can prohibit lawfully its pursue relevant profession.
To the other member of group of crime of vicious power, vicious power, the responsibility for an offence in committing a crime jointly is subjective and sex of danger of relatively lesser, person, malign opposite not big, have confess one's crime, make contributions, honest, first offence legal or drink calm from wide punishment clue, can lawfully light, reduce or absolve punishment. Admit one's guilt admit to punish or be participated in only carry out a few guilty activity and have less important, auxiliary effect only, accord with probation condition, OK and applicable probation.
The exposure of first member impeach of group of crime of 14. vicious power and this crime group reach his to violate guilty activity related other crime clew, if be put in fact, evidence or law on the problem of cognizance make contributions the controversy of applicable respect, ought to hold strictly. Should maintain lawfully for make contributions of major perhaps render meritorious service, deciding whether from wide punishment, how from wide punishment, ought to according to photograph of punishment of responsibility for an offence unanimity principle from severe control. The likelihood brings about entire case measurement of penalty of apparent unbalance, do not grant from wide punishment.
If the other member of group of vicious power crime can cooperate a judiciary to investigate and deal with sb case, clue, help gathers evidence other perhaps assistance behavior, be in detect vicious power guilty group case, investigate " umbrella " wait for a respect to have bigger effect, although cannot hold render meritorious service lawfully, also answer commonly take into consideration the circumstances is punished lightly to its.
Person of 15. crime suspect, the accused is had at the same time legal, drink calm from father and legal, drink calm from wide punishment clue, the serious pitch of specific crime should make according to place when measurement of penalty, combinative defendant person is the position in group of crime of vicious power, vicious power, action, subjective the element whole such as sex of danger of malign, person holds. The get together to vicious power person, the first member of group of vicious power crime, important member, should reflect when measurement of penalty overall from severe. The responsibility for an offence in collective to be in crime is subjective and sex of danger of relatively lesser, person, malign opposite not quite, and can admit his guilt sincerely the other member of contrition, should reflect when measurement of penalty overall from wide.
Person of the guilty suspect of case of criminal of 16. vicious power, the accused confesses the guilt that narrates his according to the facts of one's own accord, admit the guilty fact of accusation, be willing to accept punishment, can leniently treat lawfully, applicable admit one's guilt admit punish from wide system. Cruel, society endangers method of abominable to guilty property, crime person of serious guilty suspect, the accused, although admit one's guilt,admit punish, but can't punish lightly, not applicable this system.
4, the other issue of case of criminal of conduction vicious power
Mechanism of procuratorate of 17. people court, people, public security thinks via examining the case accords with vicious power to maintain a level, the case fact part in ought to sueing the legal copy clerk such as book of opinion book, indictment, judgment, ruling is stated clearly, fact of the person that state the get together of vicious power, other member, illegal crime and according to with cognizance evidence; Accord with group of vicious power crime to maintain a level, ought to make clear in afore-mentioned legal copy clerk qualitative, state first member, other member, illegal crime fact and according to with cognizance evidence, cite the relevant provision of criminal law general principles about guilty group. The accused person and its paraclete are qualitative to vicious power put forward to explain and defend opinion, people court can give in juridical copy clerk the response that review analyse.
The prosecution of case of vicious power criminal the legal copy clerk such as book of opinion book, indictment, judgment, ruling, can summarize the wraparound fact of group of crime of vicious power, vicious power first in case fact part, divide again narrate specific vicious power to violate guilty fact.
18. was not made clear in sueing opinion book to public security mechanism maintain, people procuratorate is being examined during sueing, discovery makes vicious power or group of vicious power crime, and fact of relevant illegal crime has made a thorough investigation of, evidence really, sufficient, should investigate criminal duty lawfully, ought to make sue a decision, the fact that the basis finds out to people court to sue, admit clearly in the indictment to be vicious power surely or group of vicious power crime. People procuratorate thinks to guilty fact breaks the law related vicious power not clear, evidence is insufficient, perhaps exist omit vicious power to violate guilty fact, omit accomplice blame the case such as the suspect needs complement to investigate, ought to offer specific written opinion, data of along with records along with all the others complement of mechanism of go back public security is investigated; People procuratorate also can be investigated by oneself, can ask public security mechanism provides assistance when necessary.
Did not maintain clearly in the indictment to people procuratorate, people court discovers those who make vicious power or group of vicious power crime during adjudgement, can suggest people procuratorate complements or change is sued; People procuratorate does not agree or did not reply inside 7 days of the opinion, people court should be not maintained actively, the regulation enters a judgement related the guilty fact according to that can sue accusation only, ruling.
Person of cognizance the accused or when the case that the legal agent of the accused person, paraclete, close relative appeals, organization of property of cognizance gangdom of first instance court decision has by accident, 2 careful court ought to be corrected, accord with group of crime of vicious power, vicious power to maintain a level, ought to make maintain accordingly; First instance adjudicates cognizance vicious power or group of vicious power crime has by accident, ought to correct, but do not get promote to maintain; One adjudgement did not hold vicious power or group of vicious power crime definitely, do not maintain so that increase.
Group of crime of the vicious power that court of procuratorate of mechanism of 19. public security, people, people ought to part to be made clear in order to sue place of copy clerk of opinion book, indictment, judge, vicious power, regard the statistic of relevant data as the basis.
20. original idea sees apply since April 9, 2019 oneself.
[file 2]
Procuratorate of top people court, top people, the Ministry of Public Security, judiciary
Carry out about dealing with " weak force " criminal case the opinion of a certain number of problems
(on April 9, 2019 print and distribute)
Fulfil to be carried out deep in the center of sweep about beginning black the decision-making deploy that divides evil special accuse and denounce at a meeting, procuratorate of proper understanding and courtyard of civil code of applicable and top person, top people, the Ministry of Public Security, judiciary " about handling case of crime of black vicious power the directive opinion of a certain number of problems " (the law sends 〔 2018 〕 1, the following abbreviation " directive opinion " ) about be being used to penalizing lawfully " weak force " the regulation of executive crime, handle relevant crime case lawfully, basis " criminal law " " criminal procedural law " reach document of concerned judicatory explanation, normative sex, offer following opinions:
One, " weak force " it is to show behavior person is seek illegal profit or form illegal influence, perhaps undertake in concerned place to other mobbish, pester, fool be troubled by, gather a crowd go to situation, enough makes other produces scared, panic to form psychology to enforce then, or freedom of person of enough influence, limitation, endanger person belongings security, affect normal life, job, production, management illegal crime resort.
2, " weak force " illegal crime method normally expressional form has:
(one) the measure that violates person right, democratic right, property right, include but not be confined to dogs stick lean, pestiferous, mudslinging, ill will informs against threaten, circumvent of bring a false charge against sb, destroy, occupy property by force to wait;
(2) the method of disturbed and normal life, job, production, management order, include but not be confined to invades other house illegally, destroy living facilities, setting word of the life obstacle, gush that stick a newspaper, pull hang a banner, set off firecracker, broadcast funeral music, put contamination of wreath, douse, cut off the water supply cut off the power, labour of the block that block the door up, and through driving from personnel of course of study, accredit the means such as personnel guard division of workshop of control of direct or indirect ground, office, management place;
(3) the method of disturbed society order, include but not be confined to places field manner put on a show of force, gather a crowd fool be troubled by make trouble of mobbish, block the way to wait;
(4) other those who accord with original idea to see the first regulation " weak force " method.
Through website sth resembling a net or communication tool is carried out, accord with original idea to see the illegal crime shift of the first regulation, ought to maintain for " weak force " .
3, behavior person is carried out " weak force " , have one of following state, can maintain make for enough other produces scared, panic to form then psychology enforces or it is freedom of person of enough influence, limitation, normal to endanger person belongings safety to perhaps affect the life, job, production, manage:
(one) black vicious power carries out;
(2) carry out with name of black vicious power;
(3) Ceng Yin organization, leader, play gangdom character group of crime of organization, vicious power, vicious power and because force to trade, imprison illegally, blackmail, gather a crowd after the crime such as affray of affray, provoke has sufferred criminal to punish, carry out again;
(4) carry lethal weapon to carry out;
(5) organically carries out or enough makes other thinks violent, menace has real possibility;
(6) other enough makes other produces scared, panic to be formed then psychology enforces or it is freedom of person of enough influence, limitation, normal to endanger person belongings safety to perhaps be affected the life, job, production, case that manage.
Carry out by much person, fictional or bright show experience of violent illegal crime to undertake threatening, or with signing up organization, head oneself date, unified move is installed, show tattoo the skin, special label and other bright show, allusive means, enough makes other feels relevant behavior have constituent sex, ought to maintain for " carry out with name of black vicious power " .
Carry out by much person, only should partial behavior person is accorded with this the first (one) to (4) what list case, this hold water namely.
Although specific carry out " weak force " behavior person is not accorded with this the first (one) , (3) what list case, but employ person, the person that incite or get together person accord with, this hold water.
4, " weak force " the method is belonged to " criminal law " the 294th the 5th (3) " characteristic of behavior of gangdom property organization " and " directive opinion " the 14th " vicious power " in the concept " other measure " .
5, use " weak force " method, make other produces psychological fear to perhaps form psychology to enforce, belong to respectively " criminal law " of the 226th regulation " minatory " , " criminal law " the 293rd the first (2) of the regulation " threaten " , accord with other crime to make important document at the same time, ought to trade in order to force respectively blame, provoke affray blame convictions punishment.
" about dealing with statute of comfortable use of case of provoke affray criminal the explanation of a certain number of problems " in reaching the 4th the 2nd times " for many times " ought to understand commonly to provoke affray behavior is carried out 3 times inside 2 years above. 3 times behavior of above provoke affray includes the action of same category already, also include the action of distinct category; Include to did not get the act that administration punishs already, also include to already got the act that administration punishs.
6, organically for many times short time locks another person illegally, ought to maintain for " criminal law " of the 238th regulation " strip illegally with other method other person is free " . Lock another person illegally 3 times above, every time duration is in 4 hours of above, imprison time of other accumulative total illegally perhaps to be in 12 hours of above, ought to punish with imprisoning a blame illegally to conviction.
7, with " weak force " the method is entered illegally or stop of other residence, ought to maintain for " criminal law " of the 245th regulation " invade other house illegally " , accord with other crime to make important document at the same time, ought to punish with invading residential blame illegally to conviction.
8, it is a purpose with detinue, use " weak force " the method asks for state-private property forcibly, accord with at the same time " criminal law " the other crime of the 274th regulation makes important document, ought to conviction with blackmail blame punishment.
" about dealing with statute of comfortable use of blackmail criminal case the explanation of a certain number of problems " the 3rd in " the blackmail inside 2 years 3 above " , include to already got the act that administration punishs.
9, use " weak force " method, form two kinds of above to commit a crime at the same time, lawfully according to punishment more serious crime convictions punishment, law has formulary except additionally.
10, see the 5th according to original idea, the 8th regulation, the behaviour that penalizes to already getting administration investigates criminal duty, the administration that gets before for the person all right detains punishment to ought to be folded reach prison term, amerce ought to be touched buckle fine.
11, employ, incite other to use " weak force " the method forces to trade, blackmail, form force to trade of blame, blackmail blame, to employ person, the person that incite, general ought to with the prime culprit punish in collective crime.
The debt that does not get legal protection for strong demand or because of other and illegal purpose, employ, incite other to use " weak force " freedom of person of illegal privative other forms the method to imprison a blame illegally, invade affray of other residence, provoke illegally perhaps, form what invade residential blame, provoke affray blame illegally, to employ person, the person that incite, general ought to with the prime culprit punish in collective crime; Because legal liability, marriage loves oneself and close relative, the folk such as dispute of family, neighborhood is contradictory and employ, incite, did not cause serious consequence, general nonfeasance crime is handled, but the except that check via concerning a branch to criticize or still continues to carry out.
12, this opinion applies since April 9, 2019.
[file 3]
Procuratorate of top people court, top people, the Ministry of Public Security, judiciary
About dealing with " cover a road to borrow " criminal case the opinion of a certain number of problems
(on April 9, 2019 print and distribute)
Sweep to last to be begun deep black except evil special accuse and denounce at a meeting, accurate discriminate and lawfully severity penalizes " cover a road to borrow " illegal criminal, the basis is court of explanation of procedural law of criminal law, criminal, concerned judicatory and top people, highest people procuratorate, the Ministry of Public Security, judiciary " about handling case of crime of black vicious power the directive opinion of a certain number of problems " the regulation that waits for normative sex file, be opposite now deal with " cover a road to borrow " a certain number of problems offer criminal case as follows opinion:
One, accurate hold " cover a road to borrow " as leasehold as folk distinction
1. "Cover a road to borrow " , it is right it is a purpose with detinue, folk of make use of's leasehold name, prevail on or force the injured party to sign " leasehold " or covert " leasehold " " guaranty " " assure " wait for relevant agreement, add the means such as evidence of the leasehold amount, baleful production break a contact, wanton cognizance break a contact, reimbursement that destroy conceal to form debt of false creditor's rights through empty, and the generality appellation of the activity of relevant illegal crime that lawsuit of have the aid of, arbitral, notarization perhaps uses property of the injured party of violent, menace and other measure detinue.
2. "Cover a road to borrow " the essence of existence of civil and leasehold relation that meaning autonomy is based on between main body and forms with equality is distinguished, folk's leasehold lender is to expire to call in according to the content that the agreement agrees capital gets interest, do not have the objective of detinue other property, also won't be in sign, empty is carried out to increase leasehold amount in performing leasehold agreement procedure, make give phonily pay the trace, baleful production break a contact, wanton cognizance break a contact, reimbursement that destroy conceal the behavior such as evidence.
In judicatory practice, ought to notice to demand repayment illegally caused case and " cover a road to borrow " the distinction of the case, person of guilty suspect, the accused does not have detinue objective, also did not use " cover a region " form debt of false creditor's rights with borrower, should not regard as " cover a road to borrow " . Because use violent, menace and other measure to demand payment of a debt forcibly,make crime, ought to conviction according to particular case fact punishment.
3. In practice, "Cover a road to borrow " common crime gimmick and measure include but not be confined to is the following case:
(1) production folk leasehold false appearance. Person of guilty suspect, the accused often with " small finance company " " investment firm " " advisory company " " assure company " " the network is leasehold platform " wait for name to be publicized external, with low interest, without guaranty, without assure, draw borrow or lend money of the injured party fast loan for bait, then with " bail " " guild regulations " wait for the injured party of false reason prevail on to be based on wrong understanding to sign amount empty tall " leasehold " agreement or relevant agreement. Person of some guilty suspects, the accused still is met with the injured party the reason such as previous and leasehold break a contact, force the other side to sign amount empty tall " leasehold " agreement or relevant agreement.
(2) production capital walks along Zhang running water to wait to give phonily pay a fact. Person of guilty suspect, the accused according to empty tall " leasehold " consultative amount turns capital into account of the injured party, make already the trace of bank running water of the injured party of consign of will total borrow or lend money, take all sorts of steps subsequently will among them all or partial capital calls in, the injured party was not obtained actually or obtain completely " leasehold " the debt that shows on running water of agreement, bank.
(3) make break a promise intentionally wanton perhaps cognizance break a contact. Person of guilty suspect, the accused often is met wait for means in order to set barrier of trap of break a contact, production reimbursement, create beak a contract of the injured party intentionally, perhaps carry wanton cognizance break a promise, ask the injured party repays forcibly false debt.
(4) amount of baleful base fast loan. When the injured party is insolvent, the related company that person of some guilty suspects, the accused can arrange its place to belong to a company to perhaps be appointed, associated personnel repays for the injured party " loan " , the empty with then and larger specified number of subscription of autograph of the injured party is tall " leasehold " agreement or relevant agreement, plant through this " turn Chan Ping Zhang " " still borrow in order to borrow " means is ceaseless base is tall " debt " .
(5) use both hard and soft tactics " demand payment of a debt " . Did not repay in the injured party empty is tall " loan " below the circumstance, lawsuit of have the aid of of person of guilty suspect, the accused, arbitral, notarization perhaps uses violent, menace and other method to the injured party or the specific relation person of the injured party is asked for " debt " .
2, punish severely lawfully " cover a road to borrow " crime
4. Carry out " cover a road to borrow " in the process, did not use apparent violent minatory perhaps method, its behavior characteristic is from the expression on whole it is a purpose with detinue, pass dummy fact, conceal property of truth diddle the injured party, conviction with crime of fraud commonly punishment; Carry out to be in " cover a road to borrow " a variety of methods in the process are used, form imprison bilk, blackmail, illegally, affray of false suit, provoke, force to trade, rob, of a variety of crime such as staking, ought to according to particular case fact, divisional and different situation, the blame punishs according to criminal law and the compasses destiny that explain about judicatory or choose is in again.
5. Much person is carried out jointly " cover a road to borrow " crime, main effect has in the crime that person of guilty suspect, the accused participates in in place, ought to maintain for prime culprit, be participated in to its or all crime assumes organization, commanding criminal responsibility; Have secondary or auxiliary effect, ought to maintain for accessary criminal.
Know perfectly well other to carry out " cover a road to borrow " crime, those who have one of the following state, with the accomplice punish of relevant crime, but the criminal law and judicatory explanation except that has a regulation additionally:
(1) the organization is sent " loan " information, advertisement, attract, introductory the injured party " loan " ;
(2) of the help such as date of card of bankroll, place, bank, Zhang, vehicle;
(3) sell, offer, the help gets citizen individual information;
(4) assistance makes Zhang record wait to give those who pay a fact phonily;
(5) assistance deals with notarization;
(6) assistance perhaps arbitrates with false fact to lodge a complaint;
(7) assistance is covered now, take now, conduction movables or praedial change the name of owner in a register, divert guilty earning and the profit that its generate;
(8) other the case that accords with collective crime regulation.
In afore-mentioned regulations " know perfectly well other to carry out ' cover a road to borrow ' crime " , the cognitive faculty that ought to join behavior person, mix toward frequency of experience, behavior already method, concern with what be the same as case person, the injured party, gain profit circumstance, whether Ceng Yin " cover a road to borrow " had sufferred whether punishment, intended avoid to investigate etc advocate objective element integration analysis.
6. In maintain " cover a road to borrow " when guilty amount, ought to distinguish with civilian leasehold photograph, give from whole negatory evaluation, "Empty high debt " and with " accrual " " bail " " intermediary is expended " " the service is expended " " penalty due to breach of contract " wait for items to be committed a crime person of suspect, the accused the property of detinue, all answer plan into guilty amount.
Person of guilty suspect, the accused gives the principal that pays the victim actually number, not plan join guilty number.
Had begun to carry out " cover a road to borrow " , but because of what the reason did not prevail beyond the volition, the criminal law that can involve according to relevant accusation place, judicatory explains a provision, according to already began the property amount of detinue maintains attempted crime. Have accomplished offense already, have abortive again, part of guilty accomplished offense and abortive part part correspondence is different and legal of punishment extent, ought to decide to whether reduce punishment to abortive part first, define the legal punishment scope of abortive part correspondence, undertake comparative with the legal punishment extent of correspondence of accomplished offense part again, the choice punishs heavier legal punishment extent, and take into consideration the circumstances from heavy punishment; Both is in of extent of same measurement of penalty, with take into consideration the circumstances of guilty accomplished offense from heavy punishment.
7. Person of guilty suspect, the accused is carried out " cover a road to borrow " all property of illegal earning, ought to give pursue and wipe out perhaps instructs pay compensation for what one has unlawfully taken; To the lawful belongings of the injured party, ought to return in time still. Evidence proves is guilty suspect, the accused is carried out artificially " cover a road to borrow " and the capital that delivers to the injured party, after recouping loss of the injured party if have the rest, should give lawfully confiscate.
Person of guilty suspect, the accused already used the property of illegal earning at pay off debt, make over or install other right burden, those who have one of following state, ought to lawfully pursue and wipe out:
(1) the 3rd person is known perfectly well is illegal earning property and accept;
(2) free of the 3rd person is obtained or violate earning property with be being obtained under the price of the market apparently;
(3) the 3rd person perhaps violates guilty activity to acquire illegal earning property through illegal debt pay off;
(4) other ought to lawfully the case of pursue and wipe out.
8. With old people, minor, carry out in the school student, factitious boy or girl friend that loses labor ability " cover a road to borrow " , or because carry out " cover a road to borrow " create the victim or its are suicide of specific relation person, death, touched, to repay " debt " and of executive crime activity, outside explaining what have a regulation additionally except criminal law, judicatory, ought to take into consideration the circumstances from heavy punishment.
Holding to lawfully from punish severely place while, admit to admitting one's guilt punish, positive disgorge ill-gotten gains, genuine contrition perhaps has the other and legal, the accused person that drinks to punish a clue lightly surely, can lawfully from wide punishment.
9. To " cover a road to borrow " criminal, the specific accusation that ought to offend according to its, increase belongings punishment lawfully applicable strength. Accord with criminal law thirtieth of one of 7 regulations, can prohibit pursueing relevant profession lawfully.
10. 3 people above is carry out " cover a road to borrow " and relatively fixed crime organization of composition, ought to maintain for guilty group. Answer to make all crime punishment according to group place to first member.
Accord with black vicious power to maintain a level, ought to according to gangdom property organization, vicious power or group of vicious power crime is investigated, sue, adjudgement.
3, decide lawfully " cover a road to borrow " criminal case administer
11. "Cover a road to borrow " guilty case is investigated by mechanism of guilty ground public security commonly, if reside put on record of mechanism of dwelling place public security by guilty suspect,investigate more appropriate, can reside put on record of mechanism of dwelling place public security to investigate by guilty suspect. Guilty ground includes criminality happening ground and guilty result to produce the ground.
"Criminality happening ground " include to be carry out " cover a road to borrow " the company seat that establishs, " leasehold " agreement or relevant agreement are signed demand repayment the ground, illegally behavior executive ground, to carry out " cover a road to borrow " and to institute proceedings, arbitration, notarial get case court of justice, and " cover a road to borrow " the preliminary ground of behavior, begin ground of the ground, by way of, end ground to wait.
"Guilty result produces the ground " include illegal earning property pay to obtain the ground, conceal ground, move ground, use ground, sale ground the ground, actually to wait.
Outside occupying a dwelling place except suspect of guilty ground, crime, mechanism of other place public security is twisted to the citizen send, report a case to the security authorities, charge, inform against or guilty suspect confesses his crime " cover a road to borrow " guilty case, ought to accept instantly, via examining those who think to have guilty fact, move send have processing of jurisdictional public security mechanism.
Black vicious power carries out " cover a road to borrow " guilty case, run gangdom property organization, vicious power by detect or the public security mechanism of case of group of vicious power crime undertakes investigation.
12. Have one of following state, mechanism of concerned public security can be inside its duty limits and case investigate:
(1) one person commits several crimes;
(2) of collective crime;
(3) the guilty suspect of collective crime still carries out other crime;
(4) the guilty existence that many crime suspect carries out is direct and associated, and case processing is helpful for finding out case fact.
13. This opinion applies since April 9, 2019.
[file 4]
Top people court is supreme judiciary of people procuratorate the Ministry of Public Security
Deal with about handling the property in case of criminal of black vicious power the opinion of a certain number of problems
(on April 9, 2019 print and distribute)
To be carried out seriously in the center of sweep about beginning black the great and decision-making deploy that divides evil special accuse and denounce at a meeting, eradicate the economic base that black vicious power commits a crime thoroughly, reach procuratorate of top people court, top people, the Ministry of Public Security, judiciary according to procedural law of criminal law, criminal " commit a crime about dealing with black vicious power case the directive opinion of a certain number of problems " (the law sends 〔 2018 〕 1) wait for a regulation, the belongings in showing case of criminal of black to dealing with vicious power deals with a certain number of problems offer following opinions:
One, overall work requirement
1. When court of procuratorate of public security mechanism, people, people is handling case of crime of black vicious power, in find out black vicious power to the organization violates guilty fact and conviction lawfully to member of black vicious power measurement of penalty while, want to investigate the belongings condition of organization of black vicious power and its member in the round, adopt inquiry to experience case belongings lawfully, close down, sequestered, freeze wait for measure, and the case that the basis proves, make processing lawfully.
Fund place says processing includes to be opposite already before illegal earning of the criminal in experience case belongings, contraband, him property that uses for guilty place and other equivalence belongings lawfully pursue and wipe out, confiscate, also include to wait to be returned lawfully to the lawful belongings of the injured party still.
2. Take step to experience case belongings, ought to statutory requirement and program undertake strict according to. Forbidden close down before put on record, sequestered, freeze property. Every closes down, property of sequestered, frozen, ought to undertake in time checkup, because the program breaks the law,prevent, the influence case cognizance such as working flaw and experience case belongings deal with.
3. Take step to experience case belongings, the relative that ought to be person of guilty suspect, the accused and its place bring up withholds essential maintenance and article.
According to the case particular case, in assure litigant activity on the rails while, can allow to continue about personnel reasonable use property of concerned experience case, adopt keep a cost necessarily custodial measure, in order to reduce the effect that the case deals with pair of normal office and lawful production to manage.
4. Want to destroy the economic base that gangdom property organizes thoroughly, prevent its resurgence. Ought to be in commonly to organizer, leader confiscate an individual total worth. Perhaps organize the move, active participant that hides asset for this to belonging to backbone member truly, can be in confiscate an individual total worth. Knit a member to other group, amount of the number that ought to implement illegal crime activity according to participating in, property, position, action, illegal income and create the scenario such as losing amount, what decide belongings punishment lawfully is applicable.
5. Should dig canvass greatly and hit what organization of black vicious power undertakes to wash lawfully money and conceal, the associated crime that conceals gains of guilty earning, crime earnings to wait for property of property of change experience case.
2, adopt measure to gather evidence in the round lawfully
6. During public security mechanism is investigated, want a foundation " case of conduction criminal of public security mechanism is applicable close down, freeze measure relevant provision " (2013 〕 of the fair 〔 that understand a word 30) wait for concerned regulation, investigate the belongings condition of black vicious power and its member in the round jointly with concerned branch, can need according to lawsuit, go ahead of the rest adopts inquiry to following belongings lawfully, close down, sequestered, freeze wait for measure:
(1) the belongings that black vicious power organizes;
(2) guilty suspect individual all belongings;
(3) guilty suspect is actual pilot belongings;
(4) guilty suspect is contributive bought property;
(5) guilty suspect transfers the property to other under one's name;
(6) guilty suspect is suspected of washing money and conceal, the belongings that conceals the crime such as gains of guilty earning, crime earnings to involve;
(7) other the belongings that reachs its to violate guilty activity to concern with organization of black vicious power.
7. Close down, sequestered, freeze the property of praedial, specific movable etc that already registered, ought to inform about the mechanism that register, closing down, sequestered, during freezing, prohibit be being closed down, belongings of sequestered, frozen is on the move, must not deal with be closed down, sequestered, freeze money property right to belong to the formalities such as change, guaranty. Can extract card of concerned property right to illuminate when necessary.
8. Public security mechanism the experience case belongings to taking step, ought to collect a proof in the round its origin, property, utility, authority belongs to those who reach value to concern evidence, examine judgement whether ought to lawfully pursue and wipe out, confiscate.
Origin of belongings of proof experience case, property, utility, authority belongs to those who reach value to include commonly about evidence:
(1) person of guilty suspect, the accused is belonged to about belongings origin, property, utility, authority, of value for narrating;
(2) the injured party, witness is belonged to about belongings origin, property, utility, authority, the allegation of value, attestation;
(3) belongings buys credential of come-and-go of proof, bank, capital infuse credential, authority to belong to the book card such as the proof;
(4) property value appraisal, evaluate an opinion;
(5) can prove belongings origin, property, utility, authority is belonged to, the other evidence of value.
9. Correspondence of public security mechanism is become lawfully the amount of the belongings of organization of black vicious power and its member amass wealth by heavy taxation in pursue and wipe out, confiscated property and its propagate breath, accrual, can entrust special orgnaization to evaluate; Really cannot accurate calculative, the fact that can find out according to be being reached about legal provision, evidence is reasonable estimation.
Court of people procuratorate, people is entrusted to public security mechanism evaluate, estimated amount has different opinion, can entrust afresh evaluate, estimation.
10. The need of court of people procuratorate, people according to case lawsuit, can take afore-mentioned relevant step lawfully.
3, accurate deal with experience case belongings
11. Procuratorate of public security mechanism, people ought to strengthen pair of on record belongings to examine discriminate. In move send examine sue, when to sue, ought to put forward to handle an opinion to suggest to taking the experience case possession of measure commonly, the experience case possession that will take step and its detailed list are followed case move send.
Procuratorate classics examines people, except to following case move sent experience case worth puts forward to handle meaning regard sb as an outsider, still need to be opposite continue of pursue and wipe out had be notted close down by full specified amount, sequestered other illegal income puts forward to handle an opinion to suggest.
Experience case belongings is unfavorable along with case move send, ought to press the provision that explains according to relevant law, judicatory, offer corresponding detailed list, photograph, kinescope, seal up for keeping formalities, deposit a place specification, appraisal, evaluate opinion, appraise at the current rate to handle the material such as the proof.
12. Close down to shoulding not be, belongings of sequestered, frozen management sex, court of procuratorate of public security mechanism, people, people can apply for local government to appoint concerned branch to perhaps entrust concerned orgnaization to govern on somebody's behalf mandatory perhaps.
Right fragile destroy, destroy break, metamorphism unfavorable and long-term saved article, easy the article such as a light boat of devalueing car, boat, or the belongings such as the bond with old wave motion of market price case, stock, fund, period of efficacy be about to the bill of exchange of at the expiration of one's term of office, cashier's cheque, check, classics obligee agrees to perhaps apply for, and procuratorate of mechanism of public security of above of classics county class, people or main controller approves people court, can sell lawfully, change show or go ahead of the rest is sold off, auction, earning money paid for something purchased or received for something sold by distrain, freeze mechanism to keep, tell party in time or its are close relative.
13. People procuratorate ought to is opposite when the court is tried circumstance of belongings of case of experience of crime of proof black vicious power has quote qualitative card, specific to can proving already evidence is in a blame related the case of experience case belongings that can prove economic feature again specific after be being shown in the blame, OK in economic feature brief specification, repeat no longer show.
14. The court decision that people court makes, except ought to be opposite along with case move sent experience case worth makes processing outside, still ought to mention expressly in judgment need continues pursue and wipe out had be notted close down by full specified amount, sequestered other illegal income; To following case move when sending belongings to undertake handling, the specific name that ought to state relevant belongings, amount, amount, deal with the circumstance. Experience case belongings perhaps concerns party number more, should not be detailed in judgment text state, OK and wraparound narrate and add detailed account additionally.
15. Experience case belongings accords with one of following scenario, ought to lawfully pursue and wipe out, confiscate:
(1) organization of black vicious power and its member carry illegal crime activity the belongings of amass wealth by heavy taxation of other perhaps shocking measure and its propagate breath, accrual;
(2) the belongings that black vicious power organizes a member to carry out amass wealth by heavy taxation of illegal crime activity through the individual and its propagate breath, accrual;
(3) the property that other unit, organization, individual is aided financially to support activity of organization of this black vicious power or offers actively;
(4) individual of the member that the worth that organization of black vicious power and its member get through lawful production, management activity perhaps is organized, family is lawful in belongings, use actually at supporting this part that organizes an activity;
(5) the contraband that black vicious power organizes an illegal hold and him property that use for guilty place;
(6) the property that other unit, organization, individual uses organization of black vicious power and its member to violate guilty activity to get and its propagate breath, accrual;
(7) other ought to pursue and wipe out, confiscatory property.
16. Ought to pursue and wipe out, confiscate belongings already was used at pay off debt to perhaps be made over, perhaps install other right burden, have one of following state, ought to lawfully pursue and wipe out:
(1) the 3rd person is known perfectly well is illegal crime earning and accept;
(2) free of the 3rd person or with acquiring experience case property under the price of the market apparently;
(3) the 3rd person perhaps violates guilty activity to acquire experience case property through illegal debt pay off;
(4) the 3rd person acquires experience case property through other way ill will.
17. Experience case belongings accords with one of following scenario, ought to return lawfully still:
(1) evidential testimony belongs to the injured party clearly lawful belongings;
(2) evidential testimony reachs his clearly to violate guilty activity to have nothing to do with black vicious power.
18. About illegal crime fact check belongs to fact hind, clear to evidence proves authority is belonged to and the injured party that does not have controversy, well-meaning the 3rd person is other perhaps staff is legal belongings and its propagate cease, every returns the profit that still does not injure other interests person, do not affect a case to be dealt with normally, ought to registering, take a picture or after kinescope, return in time lawfully still.
4, lawfully pursue and wipe out, confiscate other equivalence property
19. Evidence proves lawfully ought to pursue and wipe out, confiscatory experience case property cannot be found, be obtained by other kindness, value destroys break or mix with other and lawful belongings and cannot intersected, can pursue and wipe out, confiscate other equivalence property.
To the money before the proof the evidence of all sorts of case, public security mechanism or people procuratorate ought to be moved in time take.
20. The 19th place weighs this opinion " belongings cannot be found " , it is to point to evidence proves to exist lawfully ought to pursue and wipe out, confiscated property, but cannot check of belongings whereaboutldirection, whereabouts. The accused person has different opinion, ought to show relevant evidence.
21. The amount of pursue and wipe out, confiscatory other equivalence property, ought to with cannot the number of direct pursue and wipe out, confiscatory specific property is relative should.
5, other
22. This opinion place says propagate ceases, include natural propagate breath and legal propagate interest.
This opinion place weighs accrual, include but not be confined to is the following case:
(1) the profit that amass wealth by heavy taxation, gotten worth generates directly, if use amass wealth by heavy taxation, gotten worth to buy gains of earnings of lottery win a prize in a lottery to wait;
(2) the profit that amass wealth by heavy taxation, gotten worth uses at violating guilty activity to arise, if use amass wealth by heavy taxation, gotten worth to be put gains of gamble gain earnings, illegally,borrow earnings gains, buy and traffic drugs earnings gains to wait;
(3) the belongings that course of study of amass wealth by heavy taxation, gotten belongings investment, buy forms and its accrual;
(4) in the belongings that amass wealth by heavy taxation, gotten worth and other and lawful belongings invest jointly or buy course of study forms, with the portion of amass wealth by heavy taxation, gotten belongings correspondence and its accrual;
(5) ought to hold the other state that is accrual.
23. The worth of case of criminal of black vicious power that this opinion did not provide deals with the job is other matters concerned, wait for a regulation to deal with according to explanation of relevant law laws and regulations, judicatory.
24. This opinion applies since April 9, 2019.
Supervise the manufacture of: Yao Zhenggang
Examine and verify: Li Ning
Editor: Summer, Zhao Linyan
