(Faced with the 2023 legal examination, self-study, think, summarize, organize, improve a little bit every day)
1. During the period of death penalty, if the crime is deliberately committed and the circumstances are serious, please report to . The Supreme People's Court to and then execute the death penalty after approval; for those who commit intentional crimes but fail to execute the death penalty, the period of death penalty is suspended does not need to be recalculated × (recalculated √) , and report to the Supreme People's Court for filing.
2. The perpetrator only uses the gambling funds he lost or the gambling funds he won as the target, and generally does not convict and punish for robbery. According to the purpose of × (of course, explanation √ ). The perpetrator uses the legal debts owed as the target, and generally does not convict and punish for robbery.
Principle: Criminal Law 's explanation of course does not clearly stipulate, but it is actually included in the meaning of the law. Criminal Law Of course interpretation refers to a method of natural interpretation of the law based on sufficient reasons.
The so-called sufficient reason refers to making reasoning and judgment based on social common sense and the spirit of law. can naturally draw some conclusions.
Criminal law of course includes two situations:
A, the explanation of genus relationship, and the explanation of genus concepts within the scope of genus concepts is clarified and concretized. "Securities" in the crime of forging securities is a concept, which contains many genera concepts within the scope of this concept, such as stocks, checks, bonds, bills of exchange , bank passbooks and certificates of deposit, printing, etc. Therefore, the criminal object (securities) in the crime of forging securities can be explained naturally.
B, the explanation of the relationship, the factual matters being explained are the natural development of matters in the law explained. In Tang Dynasty, ", the most typical explanation is to lift the weight to show the light, and the conviction is to show the weight to show the weight to " = the most typical explanation.
purpose interpretation is a method of interpreting legal , which refers to legal interpretation personnel use legal purposes to clarify the specific meaning of legal text.
Interpretation of the Criminal Law is a method of Interpretation of the Criminal Law . It is a legal interpretation method of interpretation of the Criminal Law based on the purpose of the Criminal Law .
The fundamental goal of criminal law is to protect legal interests. Relevant personnel should not only do a good job in literal interpretation in judicial practice, but also pay attention to purpose interpretation, and explore whether the goal of protecting legal interests can be truly achieved. All criminal activities have the ultimate goal of protecting legal interests.
3, specifically conforms to the theory × (legal conforms to the theory √) refers to the facts recognized by the perpetrator and the facts that actually occurred. As long as the crime of is consistent within the scope of , a deliberate completed crime is established.
4, legally compliant with the statement × (specifically compliant with the statement √) believes that the facts recognized by the perpetrator are in concrete agreement with the facts that actually occur, which are specifically consistent with the actual facts that occur, then a deliberate completion crime is established.
Principle: Legal conformity theory (within the same crime composition, abstract) . The facts recognized by the perpetrator are related to the facts that actually occur. As long as is consistent within the same crime composition, is a deliberate completed crime.
Specific conformity (subjective facts are consistent with objective facts, image) . Only when the facts recognized by the perpetrator are specifically consistent with the facts that actually occur, intentional crime is established. In addition to the different definitions,
has two differences between the statutory and the specific statutory:
A, different judgment conclusions -
For similar objects to crack down on error , the statutory and the specific statutory (an intentional crime completed) and the statutory and the statutory ( imagination competition for intentional crime and negligence crime) are inconsistent.
For similar objects , the verified error , the statutory and the judgment conclusions of the specific verification theory are consistent, and they are considered to be a intentional crime.
B, whether the object can be equivalent is different -
specifically fits the specific object, and believes that each object has its own unique value and cannot be regarded as equivalent.
legal conformity theory focuses on abstract objects, and believes that the inner essence between different objects has similarities and can be equivalent in the same essence.
5. Gathering a group to fight, causing death, and intentional homicide (√) .
6. The crime of producing and selling food that does not meet safety standards is . The specific danger is (√) .
7. The crime of producing and selling medical equipment that does not meet the standards is . The specific danger is (√) .
Principle: Specific dangers require that the danger is very specific, and only when it reaches a certain level is considered a crime (such as a crime of arson).
Abstract danger is more abstract. As long as there is a corresponding danger, it must be considered a crime (such as the production and sale of fake drugs).
A. Specific dangerous crimes are dangerous states as the result, and specific analysis is required based on the specific situation of the behavior at that time.
The crime of arson requires the analysis of factors such as the size, location, wind direction, etc. of the arson, and it cannot be considered that arson is the crime of arson.
The crime of explosion should be analyzed in detail about the size, power and harm of the explosives, and it should not be considered that a firecracker is the crime of explosion.
The crime of destroying the vehicle must be determined to determine which part of the vehicle was destroyed at that time and the impact on safety. It cannot be considered that the damage to the seats in the bus is the crime of destroying the vehicle.
analyzes the situation of the behavior specifically at that time, and then analyzes the degree of harm. Only when it reaches a certain level can it be considered a crime, so that the scope of criminal punishment will not be expanded.
B. Abstract dangerous crimes are dangerous attributes as behaviors, and dangers are relatively abstract.
The crime of producing and selling toxic and harmful foods is to be in a concrete danger, such criminal acts cannot be controlled from the source. Therefore, no matter how toxic and harmful foods produced are toxic and harmful, even if they are only a little bit, as long as this behavior occurs, criminal punishment should be imposed, so that crimes can be cracked down as much as possible.
8. In particular, surrender is limited to criminal suspects, defendants and criminals serving sentences (√) .
Principle: Special surrender (quasi-submission, special surrender, and other surrender) refers to the criminal suspect, defendant and criminal who have been taken compulsory measures to truthfully confess their other crimes that the judicial authorities have not yet grasped.
The difference between special surrender and general surrender: A. The system is different. Generally, surrender and quasi-sacrifice are only stipulated in the general principles of the Criminal Code, while the special surrender system is established and stipulated by the sub-laws of the Criminal Code.
B, different applicable objects. Generally, surrender is applicable to all perpetrators whose personal freedom has not been deprived of and who have surrender conditions; especially surrender is only applicable to criminal suspects, defendants and criminals who have been taken compulsory measures, including specific perpetrators who have committed bribery, bribery or introduction of bribery.
C, different conditions for establishment. Generally, the establishment of surrender must have both the conditions of voluntary surrender and truthfully confessing one's own crime. The establishment of a surrender must be based on the above-mentioned applicable criminals who actively confess their other crimes that have not been mastered by the judicial authorities. Among them, the above-mentioned three types of specific criminals actively confess their crimes of bribery, bribery or introduction of bribery before being prosecuted.
D, the punishment principles are different. For criminals who commit general surrender, the Criminal Law stipulates that the punishment can be reduced or reduced. Among them, if the crime is less, the punishment can be exempted; for criminals who commit special surrender, the Criminal Law stipulates that the punishment can be reduced or exempted. That is, the degree of special surrender leniency stipulated in is generally greater than that stipulated in General Provisions.
E, the legislative orientation is different. The general surrender established by the General Principles of the Criminal Law is aimed at all crimes and applies to all criminals; the special surrender system stipulated in the Subprime Principles of the Criminal Law is established to encourage criminals who commit crimes to surrender themselves, so as to crack down on related main crimes of more serious nature and harm.
9. For the main culprits other than the primary elements of the criminal group, they should be punished according to the part × (all √) crimes that they participate in or organize and command.
10. If a criminal has made significant contributions, he or she can or reduce × (reduce or exempt √) punishment.
Principle: surrenders can be given a lighter or reduced punishment. Major contributions can be reduced by or exempt from punishment . Yes, not necessarily. After all, there are few people who have made great contributions.
11, continue to commit × (continuous crime √) refers to the situation where several acts of the same nature are committed continuously based on a crime intention (same or general intention) and commit the same crime.
principle: The difference between the two is reflected in that there is actually only one behavior to continue committing, and multiple behaviors will be committed in succession.
Although the behaviors that continue to commit last for a certain period of time, they are uninterrupted. The several behaviors that are committed last for a certain period of time, but there is an intermittent behavior between several behaviors.
Continued crime (continued crime) refers to a crime in which the criminal act and the illegal state caused by the act are in a state of continuation for a certain period of time. The characteristics include that the criminal act and the illegal state must continue at the same time. Criminal behavior is uninterrupted for a certain period of time. Criminal acts violate the same specific social relationship. For a sin.
Continuous crime refers to the crime form of , which is based on the same or generalized crime, and commits the same crime based on the same or generalized crime. The characteristics include the crime intention based on the same or generalized crime. Objectively, several behaviors of the same nature were implemented. Several behaviors are timely continuous. Several acts committed the same crime.
11, Crime purpose × (Crime motivation √) refers to the inner cause or ideological activity that stimulates and prompts the criminal to commit a criminal act.
12, Crime motivation × (Purpose of Crime √) refers to the result that the criminal subjectively hopes to achieve through criminal behavior, that is, the result that the criminal behavior that exists in the criminal brain in the form of concepts is expected to achieve.
13. The causal relationship in criminal law is the causal relationship between behavior × (harmful behavior √) and harmful results.
Principle: behavior = harmless behavior + harmful behavior.
Criminal law behaviors include acts of practice, preparatory acts, abetting acts, and help acts.
Among them, the implementation of behavior is the central concept of criminal law.
Acts of implementation are acts stipulated in the Criminal Law and have the urgent possibility of infringement of legal interests. They are acts mainly prohibited by the Criminal Law.
implementation behavior formally meets the objective components and has the urgency of infringement of legal interests. Evaluation from social equivalent is a prohibited act with the possibility of infringement of legal interests in social life.
Social equivalent is the general principle of Civil law criminal law theory regarding the illegality of behavior in , which refers to the behavior formed by history in social life and allowed by social ethical order, which can eliminate the illegality of behavior. For example, boxing, wrestling, competitive behaviors in , doctors' surgery, scientific experiments, etc., although there are certain dangers or injuries, they are recognized by the society and do not violate social public order and kind customs and are regarded as legitimate behavior.
The principle of social equivalent believes that determining the illegality of an act should not be based simply on whether the legal interests have been damaged, but should be analyzed in a specific and comprehensive manner and make a judgment on whether it is a social equivalent behavior. Only acts that deviate from the social equivalent are illegal acts.
The principle of social equivalent has a positive effect, which is reflected in: it can explain phenomena that cannot be solved by traditional criminal law theories in reality, and has a realistic effect; it focuses on people's sentiments and opinions, has a mass base, and will inevitably exert its social effect; this principle complies with people's sentiments and opinions, and once it is recognized by law, it will have legal effect.
