Litigant process
Late on May 2, 2010 22 when, drive after Zou some wine, be in Beijing on the west a near temple of true fierce of the city zone one-way on go in a direction not allowed by traffic regulations, the nimble that drives with Cai Mou amounts to car encountering to confront each other, zou Mou gets off hold screwdriver menace Cai Mou, drive subsequently hit the car that touch Cai, cause Cai Che to be bumped to be out of shape, cai Mou also is contused (after this, cai Mou costs in succession the 9000 Yu Yuan) such as cost of long fare, medical treatment. Cai Mou calls the police at once, traffic people's police hurries to the spot, hold Zou Mou in full charge according to traffic accident. After the event, cai Mou looks for Zhang Mou of its attorney friend to help processing this matter. Two people think this matter not simple is case of cause trouble of a traffic, meaning of Zou some hereat hits a car, already was suspected of destroying state-private property blame, intended harm blame intentionally (abortive) wait for accusation, should assume criminal responsibility lawfully, then consultative to Zou Mou claim for compensation 100 thousand yuan, report to public security mechanism otherwise, investigate criminal duty of Zou Mou.
The wife Gui Mou of Zou Mou of cause trouble person contacts Cai Mou actively, promise compounding compensation, the requirement does not investigate criminal duty of Zou Mou again. Cai Mou puts forward to must compensate for 100 thousand yuan, investigate criminal duty of Zou Mou otherwise. Classics both sides talks things over for many times, came to an agreement finally on May 25, 2010, zou Mou compensates for Cai Mou 80 thousand yuan, prepaid 50 thousand yuan. That evening 21 when make, cai Mou, Zhang Mou, Gui Mou makes an appointment to be in Beijing announce military division (now already instead on the west the city zone) street of jujube Lin Qian inside one coffee hall, gui Mou pays Cai Mou cash 50 thousand yuan, write down a piece of 30 thousand yuan IOU. Both sides still signed an agreement, cai Mou is affirmatory " with respect to this second traffic accident, investigate duty of Zou Mou criminal no longer " . Meantime, gui Mou is suspected of with Cai, Zhang Er's person call the police for blackmail, city public security divides Beijing on the west bureau policeman arrests Cai, Zhang Er's person on the spot, 50 thousand yuan of cash also by distrain. The following day, cai, Zhang Er's person by await trial of be bailed out.
On September 21, 2011, beijing on the west procuratorate of people of the city zone commits blackmail crime with Cai, Zhang Er's person, to sue of court of people of Xiang Xicheng division. Of the same age on October 11, open a court session of court of people of the city zone hears this case on the west, mao Lixin of office of Beijing Shang Quan's attorney's lawyer serves as Zhang Mou's paraclete to appear in court, make innocent plead for its, accuse, debate of argue both sides is intense. On December 20, 2011, on the west procuratorate of people of the city zone with " fact, evidence has change " for, application recalls sue, ruling of court of people of the city zone allows on the west. After nolling prosequi, procuratorate of people of the city zone is opposite on the west Cai, Zhang Er's person is made do not sue processing.
Dominate square point of view
Does the indictment accuse: ? Huan Ai revive?2010 of Tang of of the einsteinium that pat Chen year on May 25 21 when make in Beijing on the west inside hall of blue coffee of heavenly body of market of Lin Qian of jujube of the city zone, the criminal responsibility appearance of the marital Zou Mou that finds out the injured party with will reporting to public security mechanism is minatory, RMB of Gui Ping of extortionate the injured party 50 thousand yuan, be hunted down after, illicit money already rose obtain. Maintain the evidence of afore-mentioned facts, have the injured party data of card of testimony of allegation, witness, book, seeing and hearing and the accused person wait for narrating. Public prosecution mechanism thinks, zhang Mou of the accused person, Cai Mou ignores national law, blackmail others money, amount is huge, violated property right of the citizen, its behavior offended " criminal law of People's Republic of China " the 25th the first paragraph pass an imperial examination 274 regulation, guilty fact is clear, evidence is really sufficient, answer to investigate its criminal duty with blackmail blame.
When sessional cognizance, public prosecutor expresses public prosecution opinion, insist to think person of two the accused makes blackmail crime. : of its prime cause? Small amine of smile of free time of Piao of crisp Bei of of pool of Huang Qin pigheaded ⒉ owes ㄕ to add Suan of coffin chamber of barium of Sha of Pu of the twinkling that promote ?0 of coxa of 6 Song 10 thousand yuan, exceeded its apparently practical matter loss, do not have at the law according to, because this is had " detinue other property " subjective and intended; 2 be piece, Cai Er's person goes up objectively carried out requirement of blackmail blame place " browbeat or coerce " behavior. Voice of two the accused says " should investigate duty of Zou Mou criminal " , force the other side to be compensated for more with this, belong to " browbeat and coerce " .
Argue square viewpoint
Paraclete makes innocent plead, think the behavior of the accused person is belonged to at most " dimension power is excessive " , do not make blackmail crime.
(One) whether to have about the accused person " detinue other property " subjective purpose
Serve as a kind when violate belongings crime, blackmail blame asks must " it is a purpose with detinue " . In case of claim for compensation of authority of this kind of dimension, whether should judge the accused person to have " detinue of his property subjective and intended? Paraclete thinks, above all, cannot maintain by the accused him person for narrate or coming apologetically only, no matter have,do not have for narrating, answer to basically be maintained according to the external state of affairs of the case. Next, does cognizance basis basically have 2: ? Emperor is strong Kun of this coxa hut climbs Dang of protruding of the zinc that owe Ti to lead skip ? 2 it is to should see view of claim for compensation whether have legal basis. Alleged " factual basis " , be show claim for compensation advocates put forward, must suffer actual enroach on to be premise with the right such as the person of person of claim for compensation, belongings, fact of fiction of and rather than undertakes extortionate; alleged " legal basis " , it is the project of claim for compensation that shows place of person of claim for compensation puts forward and amount, have relevant law basis. Have these two, criterion no matter amount of claim for compensation is much tall, should not maintain to have " of detinue other property subjective and intended.
Specific to this case, cai Mou of the accused person, Zhang Mou to claim for compensation of Zou Mou, Gui Mou, it is a kind of exercise the legal action that civil compensation requests to counterpoise, do not have " detinue other property " intended.
Cai Mou of person of 1. the accused, Zhang Mou to claim for compensation of Zou Mou, Gui Mou, it is to be based on Zou Mou " hit a car intentionally " behavior of tort of this one go ahead of the rest, have clear fact and legal ground, it is exercise its combine right advantage, be not extortionate.
Of this case " before because of " , it is the Zou Mou that happens late on May 2, 2010 " hit a car intentionally " incident, after this till on May 25 case hair, both sides ever had had many to second phone is communicated and meet talk things over. Before late on May 25, 2010 both sides meets, already " compensate for 80 thousand yuan " reached unanimous opinion, just agree next meet that evening sign an agreement.
Accordingly, this case is one has " before because of " special case, the happening of the case, development also experienced longer process, examine entire case fact thoroughly only, ability judges this record quality correctly. In this case, the accused person demands compensation to Zou Mou, Gui Mou, because Zou Mou had late on May 2, 2010,be " hit a car intentionally " behavior of go ahead of the rest. Drive after Zou some wine, strike the car that Cai Mou drives intentionally, cause person, belongings and spirit to damage to Cai Mou, this is person of two the accused the factual basis to claim for compensation of the injured party. This be related is solid, be actual existence, do not have any dummy composition. Be based on this fact, between both sides, form: of two legislation impact? Chang of gallopping Yan of emperor close play chess has drip road crock? its " hit a car intentionally " behavior may be suspected of " destroy state-private property intentionally " or " intended harm (abortive) " wait for accusation, the Cai Mou that serves as the injured party has authority to have charge, include to report to public security mechanism or mention to people court; of criminal private prosecution is the tort behavior that is based on Zou Mou another, form an obvious civil law concern, cai Mou has authority to ask Zou Mou compensates for the because of its behavior person that causes to him, belongings and mental damages. Accordingly, no matter be Cai,some should report Zou Mou crime, still demand compensation to Zou Mou, Gui Mou, it is its exercise of legal right reflect, do not talk to go up " illegal " , also not be to want " own other property " .
the civil liability to pay compensation that arises with respect to tort behavior only, zou Mou is late on May 2, 2010 " hit a car intentionally " behavior, caused the loss on person, belongings and spirit to Cai Mou really. Our country " civil code general rule " the 119th regulation, body of enroach on citizen causes harm, ought to compensate for medical treatment cost, because extra allowance for living expanses of income of reductive of delay one's work, invalid is expended,wait for charge. The 117th the 2nd, of country of 3 regulations attaint, collective belongings or of other belongings, ought to restorable or compensation of convert into money. The victim suffers other and great losing accordingly, enroach on person ought to recoup a loss. Additional, " top people court about trying statute of comfortable use of person damages case the explanation of a certain number of problems " : of the first regulation? ⒔ of of the that make razor clam smooth with a rake] ? of foot of a surname of dainty of Wei of idle ⑸ Xia compensates for obligee to sue a request to compensate for obligor to compensate for belongings loss and spirit to damage, people court should grant to accept. " accordingly, be based on tort behavior of Zou Mou, between bilateral party, produced a: of clear civil law impact? Large of laborious of moraine of ㄏ of Tang gallopping avarice slaughters play chess car to take Qia repeatedly accountability compensation of Zou Mou of? of Jian of Xie デ Na because the person that oneself behavior causes to the other side, belongings and spirit are damaged.
Anyhow, the accused person to claim for compensation of Zou Mou, Gui Mou, have clear fact and legal ground, it is exercise its combine right advantage reflect, be not dummy fact to undertake " extortionate " , also not be an intent " detinue other property " .
Person of 2. the accused to claim for compensation of Zou Mou, Gui Mou 100 thousand yuan, also have fact and legal ground likewise, be not ask a price of all over the sky
In the process that has negotiation in bilateral civil compensation, cai Mou to claim for compensation of Zou Mou, Gui Mou 100 thousand yuan, come to an agreement finally with 80 thousand yuan. These 100 thousand yuan, amount of 80 thousand yuan claim for compensation, the practical matter loss that exceeded Cai Mou place to suffer admittedly (the 9000 Yu Yuan) such as long fare, medical expenses. But should realise: ? Loss of material of bright?000 Yu Yuan is not Cai Mou place to suffer each losing all, additionally still cost of delay one's work, transportation expenses waits not plan into; in addition, as person property right of authority, money suffers the one party of enroach on, cai Mou still has authority to advocate " car value derogation is expended " " mental damages " etc.
Although " car value derogation is expended " " mental damages " two, in legislation and judicatory level, may not can get supportive certainly. But can not deny Cai Mou has the right that offers the other side of this view, demand to undertake compensatory because of this. And, from judicatory practice looks, also the court supports compensation " car value derogation is expended " case. As to mental damages, although basis " top people court about determining blame of damages of civil tort spirit the explanation of a certain number of problems " the 8th regulation, "Because tort sends person mind to damage, but did not cause serious consequence, the victim requests those who damage to compensate for spirit, do not grant to support commonly... " , but according to its the first " the natural person suffers illegal enroach on because of following character right, sue a request to compensate for spirit to damage to people court, people court ought to give lawfully accept: (One) authority of life power health, body counterpoises... ... " , reach " top people court about trying statute of comfortable use of person damages case the explanation of a certain number of problems " the first regulation, "Because life, healthy, body suffers enroach on, compensatory obligee sues a request to compensate for obligor to compensate for belongings loss and spirit to damage, people court should grant to accept " , the victim still enjoys the to lodge a complaint, right that offers view of claim for compensation, people court also ought to be accepted. That is to say, cannot go up to whether can support actually with legislation and judicatory, although; of the lawful sex that will judge claim for compensation of the injured party to advocate, proper sex does not grant to support on legislation and judicatory, the victim still enjoys the position advantageous position of claim for compensation.
Look from this case case, cai Mou puts forward taller claim for compensation to ask, include mental damages, also be there is good reason for it, have rational factual basis and psychological factor. When bumping into car happening late on May 2, 2010, cai Mou is normal late at night drive to sail from the garage piece, encounter the Zou Mou that drunk wine drives, for no reason is held by its " screwdriver " browbeat and open roof intentionally to bump, as a result later " the heart is uncomfortable, remember the thing that day fears " , very great anguish was sufferred on spirit. And, cai Mou's mother is sufferring from cancer hospitalization personally at that time (died in June 2010 subsequently) , cai Mou should hospital nurse everyday, just be in right now, cai Mou's car because by Zou Mou crack up, cai Mou does not have a car to be able to be used, not only a lot of more floriferous taxi cost, and delayed a lot of issues, cause its to remorse and regret to maternal ashamed. Accordingly, cai Mou is besides practical matter loss, put forward a few indemnity more, in order to make up for its spirit damages, have proper sex, rationality completely.
Such, consideration " mental damages " wait for a project, criterion Cai Mou to Zou Mou claim for compensation 100 thousand yuan, come to an agreement finally compensate for 80 thousand yuan, have fact and legal ground apparently, be not ask a price of all over the sky, not be baleful and extortionate more.
No matter 3. is active whether do legislation and judicatory support request of 100 thousand yuan claim for compensation, cai Mou enjoys the right that offers this view lawfully, cannot the size with amount of claim for compensation, will judge the accused person to whether have the objective of detinue.
Counterpoise as person, belongings by the one party of enroach on, all sorts of harm that what what him basis of the accused person suffers circumstance, raise corresponding compensatory number, this is party exercise its request what authority, view counterpoises to reflect is to safeguard oneself legitimate rights and interests, ask for him due compensation. As to legislation or judicatory level, whether meeting, how old the meeting on degree supports request of this one claim for compensation, this is the another problem of different level. The place before be like is narrated, no matter active legislation reachs judicatory to support whether actually, get the one party of enroach on as the right, have the right that offers view of claim for compensation. To specific indemnity, both sides can talk things over completely by oneself, also can solve through the way such as lawsuit, arbitration. According to the meaning autonomy principle of civilly, no matter the right suffers enroach on one party to put forward to more or less compensate for amount, want the other side to be accepted of one's own accord only, do not violate any legal regulations.
In this case, bilateral party chose to talk things over by oneself jointly, " compounding " settle way. Since be to talk things over, can have a process that makes experience, bargain repeatedly. In the process that negotiates bargaining in both sides, one party raises a requirement, the other side can be accepted, also need not accept, perhaps pass the reassume after amount of argy-bargy, depress, this also is the legal right that the the opposing party enjoys. Cannot not support demand of 100 thousand yuan claim for compensation because of active legislation and judicatory, the Cai Mou that thinks the right suffers enroach on puts forward 100 thousand yuan of claim for compensation to request, do not have lawful sex, proper sex. Manage together, cannot say amount of claim for compensation exceeded the range that legislation and judicatory support actually, belong to " detinue other property " . The prep above of amount of many claim for compensation that if know rule so,appears in practice is legal standard thought fors the time being case, can be buckled to go up " blackmail " cap, OK consequently by criminal responsibility, this not absurd?
This, OK still from " company of Hua Shuo of Huang Mou blackmail " one case gets test and verify. Because what Huang Mou buys computer by displacement problem of test version CPU, offer 5 million dollar to China large company " castigatory sex " compensate for a requirement, if China large company rejects this one requirement,claim, will publicize this matter to media. In negotiating a process, china large company calls the police, huang Mou is divided by public security of Beijing Haidian area bureau with be suspected of blackmail blame criminal is detained, be approved to arrest by procuratorate of Beijing Haidian area after. Procuratorate of Haidian division people was made to Huang Mou on November 9, 2007 do not sue decision book (punishment of Beijing sea check does not appeal to [2007)154 date) . On September 22, 2008, does procuratorate of Haidian division people make criminal compensate for confirmation: further? Full quite Li of mew fan ∠ teachs dainty of appearance of A Chinese-style unlined garment of joint of bones of of beans of of of ⒔ of Suan of Yi to bring up garden Zuo PU fair at numerous means and Hua Shuo the company negotiates the means of claim for compensation, although contain coercion interest, but with blackmail medium threatening have qualitative distinction. Huang Mou suffers the with exposure means claim for compensation after encroaching in his rights and interests, not be behavior of a kind of tort, it is action of authority of a kind of dimension instead, what want 5 million dollar to belong to dimension power is excessive but not be blackmail. " afore-mentioned cognizance of procuratorate of Haidian division people, to distinguishing " dimension power is excessive " with " blackmail " provided typical example. If say Huang Mou claim for compensation " 5 million dollar " not be blackmail, however " action of authority of a kind of dimension " , so claim for compensation of this person of case the accused " 100 thousand yuan " more do not answer qualitative for " blackmail " .
(2) whether to carry out blackmail blame about person of this case the accused on the meaning " browbeat or coerce " behavior
The impersonal aspect of blame of extortionate all alone, it is the method that uses menace to perhaps coerce, make generation of the injured party is fear of, obtrude the behavior that the other side hands over property. What need points out here is, be not all " browbeat or coerce " behavior makes blackmail crime. Blackmail blame place asks " browbeat or coerce " , ask behavior person is subjective not only on must have " detinue other property " intended, and the requirement must reach quite serious level. Otherwise, cannot distinguish penal " browbeat or coerce " with civilly " threatening " . In civilly, because of " threatening " and concluded contract is belonged to can change, but the contract of cancel, need to assume civil responsibility only
Blackmail blame place asks " browbeat or coerce " , should have: of the following feature? Crab of emperor Qiang smile owes ㄐ ? to lack legal basis; namely 2 it is to have mandatory, force the other side to must accept its condition. If " browbeat or coerce " behavior is not had illegal sex and mandatory, do not form extortionate cheat to blackmail what what the blame asks " browbeat or coerce " , and form civilly only " threatening " .
Specific to this case, although the accused person claims again and again " report to public security mechanism " Zou Mou, but this behavior is not had illegal sex and mandatory, do not belong to blackmail meaning to go up consequently " threatening perhaps coerce " .
The behavior of 1. Zou Mou is suspected of crime really, cai Mou has authority to have charge as the injured party, this is its combine right advantage, do not have illegal sex
The place before be like is narrated, zou Mou is late on May 2, 2010 " hit a car intentionally " behavior, already was suspected of crime, form likely " destroy state-private property intentionally " " intended harm (abortive) " wait for accusation. Regard criminal case as the Cai Mou of the injured party, enjoy right of complaint lawfully, can accuse to public security mechanism already, also can mention to people court directly criminal private prosecution. Accordingly, no matter its with why be being planted means " report " Zou Mou's criminality, it is legal right of Cai Mou, did not violate a gender.
As to Zou Mou specific be suspected of why be being planted accusation, different person can have different understanding completely, person of two the accused is not familiar to criminal law, cannot ask their understanding to law and understanding and legislative spirit or judicatory maintain complete be identical. Accordingly, although person of two the accused has said " Zou Mou is suspected of crime, the agree carries criminal responsibility " the word of and so on, also have fact and legal ground, be not without foundation to fabricate.
Person of 2. the accused to acceptance of Zou Mou, Gui Mou " investigate duty of Zou Mou criminal no longer " , reflected the relevant provision that slight criminal case can reconcile by oneself, have lawful sex, proper sex
To case of a few slight criminal, allow party proper motion to reconcile, it is the consistent demand of file of relevant and legislative provision, judicatory and criminal policy. Top people procuratorate in January 2011 of print and distribute " a certain number of opinions of the slight criminal case that top people court reconciles about dealing with party to reach " , stipulate party of slight criminal case can reconcile clearly, its set the 3rd times " party both sides can be compensated for loss, restorable, make an apology, spirit is placatory wait for civil liability matter to undertake reconciliatory, and can reach its with respect to the injured party agree with public security, judiciary to be lenientlied treat lawfully to person of guilty suspect, the accused reach consistent " . Top people court in Feburary 2010 of print and distribute " top people court about carrying out a certain number of opinions of policy of criminal of aid of broad severe look " also set the 40th times, to but public prosecution also but the criminal case of private prosecution, of to sue of procuratorial work mechanism, people court ought to undertake cognizance lawfully, depend on legal fault to punish. Wait for slight criminal case to the light harm that civilian dispute causes, appeal to what reconcile to proper motion of the party after the court, ought to give allow and on record. People court also can be below the premise of not lawbreaking regulation, to this kind of case the attempt is done a few promote reconciliatory work. Visible, to slight criminal case, relevant judicatory file does not object party proper motion reconciling not only, and advocate energetically reconcile, ask the judiciary is promoted reconcile the job.
To the compromise of private prosecution case, criminal procedural law and relevant judicatory explanation also have specific provision. Our country applies since 1997 " criminal procedural law " : of the 172nd regulation? Before regret of ㄔ of heir dome slaughters? of carry glucoside obituary to be able to undertake the person adjudicates in declare intercessory; private prosecution, can reconcile with proper motion of the accused person or recall private prosecution... " occupy additionally 1998 " top people court about implementing procedural law of criminal of People's Republic of China the explanation of a certain number of problems " (already invalidation. Relevant provision is referred to please " the explanation of top people court about procedural law of criminal of applicable People's Republic of China) . ) : of the 197th regulation? Regret of ㄔ of heir dome wishs ⑿ of Na Yu of Jian of っ of Qia of ぞ of elder brother of Sou of θ of delay of disclose of Che of of Li Bu glutinous drips capture obituary? can be in the fundamental travel mediation that finds out fact, distinguish wrong and right. Private prosecution person is OK before declare adjudicates reconcile with proper motion of the accused person or recall although this is right,sue the regulation that the proper motion of private prosecution case that has mentioned reconciles, but the manner: that can you see legislation reconciles to private prosecution case from which? falls? of Yao of Ci of Zha of full of Ka of Ci of flatter of pen chloric cough all can reconcile by oneself.
In this case, what what Zou Mou is suspected of is intended destroy state-private property blame, intended harm (abortive) blame, belong to but public prosecution also but the slight criminal case of private prosecution. Since be belonged to on property " but private prosecution " case, so before put on record of public security judiciary, bilateral party not only can " civil compensation problem " undertake reconciliatory, OK still " whether to investigate duty of criminal of the other side " reach consistent. Accordingly, the accused person to acceptance of Zou Mou, Gui Mou " after compensating for 80 thousand yuan, investigate duty of Zou Mou criminal no longer " , it is to abandon what its criminal tells authority reflecting of one's own accord, have lawful sex and proper sex completely. Make a comprehensive view this case is entire fact, from May 2 " hit a car " happen to called the police on May 25 case hair, does the proper motion that is bilateral party having criminal case continuously actually reconcile working: ? Qia of hare of annulus correct slave-girl repeatedly? of of travel of of Tun of Xie ノ serve is denied namely on the other hand find out responsibility of Zou Mou criminal to reach consistent. This kind of proper motion reconciles the job, undertake below the framework that provides in active legislation and place of relevant judicatory file completely, have lawful sex and proper sex.
3. " report to public security mechanism " the method that is be murdered Fang Weiquan only and skill, do not have mandatory, final compensatory number still is the outcome that both sides negotiates of one's own accord, be not the accused person to force take
Blackmail blame place asks " browbeat or ask " , want to have illegal sex not only, and must mandatory. Alleged mandatory, it is to show one party of the injured party does not have optional choose, accept all requirements that the other side raises only. And in this case, some of Zou Mou, laurel just is not without optional choose, they can not accept the ask a price of Cai Mou one party completely, turn and let the other side settle dispute through the way such as lawsuit. Although they are willing to be solved through negotiating way, need not accept the ask a price of Cai Mou one party completely also, and the indemnity that puts forward one each to already thought to be able to be accepted. In fact, meet in late on May 9 bilateral first time when talking things over, it is Gui Mou puts forward above all " can much compensate a bit money " , compounding of in an attempt to. And, look from final circumstance, below the premise that 80 thousand yuan of compensation also are the indemnity that one party of Zou Mou, Gui Mou is not accepting 100 thousand yuan, must come through argy-bargy, both sides still was signed on the spot " agreement " . This is bilateral and acceptability child apparently, be not the accused person " force take property " .
Additional, the circumstance that calls the police actively from one party of late on May 25 the injured party looks, of the accused person alleged " report to public security mechanism " , also do not have actually mandatory. If one party of the injured party if really " fear Zou Mou is found out criminal responsibility " , they won't choose to call the police actively. Should they think of: ? ? of Di of reef of joyous center of a drum used in the army in ancient China of provide for of besmear of book of of male form of mace of crock of Yong of Cheng Chang of play chess of of bad ┍ ň is met possibly really by investigate criminal responsibility.
On put together, because person of this case the accused is subjective,go up to be not had " of detinue other property intended " , go up objectively without executive blackmail meaning " browbeat or coerce " , consequently, do not make blackmail crime. Accordingly on the west procuratorate of people of the city zone recalls finally sue, make to the accused person do not sue processing.
The court is maintained
On December 20, 2011, paraclete receives Beijing on the west of court of people of the city zone " criminal ruling book " , is main content as follows: ? Ammonia ⒄ of field of Tang of Yuan Huanai twinkling pats cut off from of this stir-fry before stewing of Hu of antrum of heir of of tall of ┦ form Qiao? of beard of Zhang of ├ of the mystery that remove a lid on September 21, 2011 to this academy to sue. After this academy is accepted, in litigant process, beijing on the west procuratorate of people of the city zone with ' fact, evidence has change ' for, application recalls sue. This academy thinks, beijing procuratorate of people of the city zone nolles prosequi on the west reason just when, should grant to allow.
According to " top people court about carrying out < procedural law of criminal of People's Republic of China) the explanation of a certain number of problems " the 177th regulation, is the ruling as follows: ? This clip Piao ┦ to fold of Ci of narrow of lane of shake of stir-fry before stewing of Hu of antrum of heir of of form Qiao tall! ?
After nolling prosequi, procuratorate of people of the city zone is opposite on the west average per capita of Cai, Zhang Er is made do not sue processing.
Legal provision
" criminal law of People's Republic of China "
The 274th blackmail is state-private property, number is larger or for many times of blackmail, handle battle of 3 years of the following set term of imprisonments, arrest or control, be in or amount of; of only punishment gold is huge perhaps have other and serious plot, be in 3 years of above 10 years the following set term of imprisonment, punish golden; amount particularly tremendous perhaps have other and special serious plot, be in set term of imprisonment of 10 years of above, punish gold.
Law is analytic
According to afore-mentioned regulations and criminal law principle, the crime of blackmail blame forms important document to be as follows:
(One) : of main body important document? Is chew mace troubled by Xiao of quiet of word of Xiao Li ?
(2) : of subjective important document? Beautifuling Dong of correct of Shan of Bei of chew engrave Shi treats benzene to need room? must be had all alone by force illegally the purpose of other property.
(3) : of object important document? Eye of teach of chew Kai location swallows Cong Chong of apology waiting till to swallow? to encroach the droit of state-private property not only, the right entering a body that still endangers other is other perhaps rights and interests.
(4) : of objective important document?
Differentiate law analyse manages, li clear blame and blame blame are attrib border
Mao Lixin of office of Beijing Shang Quan's attorney's lawyer
This is afterwards " proposal of company of Hua Shuo of Huang Mou blackmail " later, another origin counterpoises for civil dimension and be chased after to appeal to the typical case of blackmail, also be infrequent civil lawyer the case of responsibility of the criminal that be found out. In yellow some case, people procuratorate makes Beijing Haidian area finally do not sue a decision, maintain: ? Full eats Mi to make an appointment with drought quite Mu of badger of to bring up of cloud of negative large bamboo hat of location of horn of badger of graceful ㄒ Bi wrings? of put down coxa is not behavior of a kind of tort, it is J of travel of authority of a kind of dimension instead for, ask for 5 million dollar to belong to dimension power is excessive but not be extortionate strap element. " should maintain, to how distinguishing " dimension power is excessive " with " blackmail " , initiated good judicatory example, also rose to urge action to be being solved smoothly of this case.
To how distinguishing thought fors the time being excessive the bounds with blackmail, relevant judicatory explains lack makes clear a regulation. In this case, through accusing, the court of argue both sides argues, argue just undertook thorough differentiate and analyse to this one problem, settled relevant law issue.
Accuse, the argumentative central issue of argue both sides, basically center in two problems:
It is Cai, Zhang Er the person is subjective go up to whether be had " detinue other property " intended. Accuse to just think, claim for compensation of Cai, Zhang Er's person 100 thousand yuan, exceeded its apparently practical matter loss, do not have at the law according to, because this is had " detinue other property " subjective and intended. Argue just thinks, cai Mou's person, belongings suffers illegal enroach on of Zou Mou really, enjoy right of claim for compensation lawfully, include corporeal loss and mental damages, claim for compensation of the accused person has fact and legal ground 100 thousand yuan, both sides talks things over and final compensation amount is decided, accordingly, the accused person is lawful claim for compensation, do not have " detinue other property " purpose.
2 it is Cai, Zhang Er's person went up objectively to whether carry out what blackmail blame place asks " browbeat or coerce " . Accuse to just think, voice of two the accused says " should investigate duty of Zou Mou criminal " , forcing the other side to be compensated for more with this is " browbeat and coerce " . Argue just thinks, "Should investigate duty of Zou Mou criminal " it is the right of complaint that the accused person enjoys lawfully, also be the accused person " thought fors the time being " method, do not have illegal sex and mandatory, should not belong to blackmail meaning to go up " browbeat or coerce " . Additional, according to relevant law and policy, to slight criminal case, bilateral party can reconcile by oneself, not only can " civil compensation problem " undertake reconciliatory, OK still " whether to investigate duty of criminal of the other side " reach consistent. Accordingly, acceptance of the accused person " investigate duty of Zou Mou criminal no longer " , also have lawful sex and proper sex.
Recall finally from procuratorial work mechanism the ruling of prosecution decision and people court looks, accused to just abandon its original position finally, think this case does not make blackmail crime.
In judicatory practice, this kind because of " dimension power is excessive " and be found out " blackmail " guilty case, be not infrequent. Through handling this case, the author realises deep-feltly, in view of case of this kind of case complex, involve the many aspects such as policy of criminal law, civil code, procedural law, criminal, when branch of judicatory solid Wu is handling this kind of case, should take the modest curb drive of criminal law, discretion intervenes, do not answer to enter a blame easily.
Have to this kind " before because of " case of dimension authority claim for compensation, the one party that the right suffers enroach on with " browbeat or coerce " the method asks for high specified number to compensate for, whether to make blackmail crime, should form around the crime of blackmail blame from severe control
It is to see the accused person subjective go up to whether be had " detinue other property " intended. The standard of judgement basically sees view of its claim for compensation and amount of claim for compensation whether have objective fact basis and legal basis, if have fact and legal ground, criterion no matter amount of claim for compensation how many, should not maintain to have " detinue other property " intended;
2 it is to see the accused person went up objectively to whether carry out what blackmail blame place asks " browbeat or coerce " behavior. The standard of judgement basically is to see this " browbeat or coerce " whether is behavior had illegal sex, mandatory, if " browbeat or coerce " behavior is exercise of person of claim for compensation its are lawful of the right reflect, final compensation also is both sides talks things over as a result affirmatory, criterion " browbeat or coerce " attribute essential dimension power shift.
Baconian and character, with " browbeat or coerce " the case that the method asks for high specified number to compensate for, it is only in the meantime have afore-mentioned advocate, when objective important document, just make blackmail crime possibly. Lack among them any important document, all do not make blackmail crime.
