Source: China Youth Daily
html On September 12, Linyi City, Shandong Province, Jing Anpeng’s son held the toy gun left by his father. The photos in this edition are all taken by Geng Xueqing, reporter of China Youth Daily and China Youth Daily/html, on September 12, Yongxing International Toy City, Linyi City, Shandong Province. Jing Anpeng did business here before the incident. html On September 12, Linyi City, Shandong Province, Jing Anpeng’s father stood in front of the toys left by his son. After Jing Anpeng was arrested, the inventory of toys was transported back to his hometown and stored in the wedding room until now. In 2018, the Supreme People's Court and the Supreme People's Procuratorate issued the "Reply on the Conviction and Sentencing of Criminal Cases Involving Compressed Gas-Powered Firearms and Airgun Lead Bullets." The approval pointed out that when deciding whether to pursue criminal liability and how to determine the penalty, not only the number of guns involved in the case should be considered, but also the perpetrator's subjective cognition, motivation and purpose, consistent performance, illegal gains, whether to evade investigation, etc. should be fully considered. Assess social harm.
In the beginning, it was a small business related to toys. Li Xiulan, the owner of Guowei Toy Store in Qingzhou City, Shandong Province, purchased a batch of toy guns from Jing Anpeng, a wholesaler in Linyi City, at a price of 290 yuan each, and then sold them at a price of more than 400 yuan each.
The bullets of this toy gun are plastic "BB bullets". According to customer Dong Bingbing's later recollection in court, he used it to "shoot bottles and birds in the nearby mountains. It broke after less than two weeks of playing." ”.
Then, during a 2013 law enforcement operation, police seized 20 of these toy guns, 15 of which were identified as firearms. Therefore, Jing Anpeng, Li Xiulan and two other customers went to the dock. In a case involving four people heard in July 2014, the Qingzhou Municipal People's Court sentenced them to varying degrees of punishment for illegal buying and selling of firearms and illegal possession of firearms.
Among them, Jing Anpeng and Li Xiulan’s sentences are 10 years and will expire in 2023. But they have not stopped complaining since the day of the verdict.
Now, Li Xiulan's complaint has been responded to - on September 16 this year, the Qingdao Intermediate People's Court confirmed to a reporter from China Youth Daily and China Youth Daily that the court will retrial Li Xiulan's illegal trading following the order of the Shandong Provincial Higher People's Court Firearms case.
This is another gun crime case caused by a toy gun that has been given the opportunity to be retried in recent years.
is willing to "experiment with the body"
It is reported that the retrial will be held on September 24 in the women's prison where Li Xiulan is serving her sentence. Li Xiulan’s family and attorney declined interviews. Her husband Guo Qiang simply said that Li Xiulan had toy guns on the shelves back then. After she was imprisoned, her family was greatly affected and "the family couldn't hold their head high." Jing Anpeng, another party involved in the same case of
, is also waiting for this retrial.
Over the past few years, his brother Jing Anpang has been trying to prove that Jing Anpeng sells toys and not "guns."
On July 8, 2014, when hearing in the court that the toy gun was identified as a firearm, the Jing brothers became emotional. They come from rural areas and have low levels of education and cannot understand professional terms such as muzzle specific kinetic energy and joules. In the court, they shouted for "experiments with the body" and "hit us with those guns to see if they are real guns."
In an interview with a reporter from China Youth Daily and China Youth Daily on September 14 this year, Jing said Anbang admitted that he was a little excited at the time and "could not accept that my brother would be sentenced to 10 years in prison for selling toy guns."
He emphasized to reporters that it was a toy gun in a "testing" manner. "Bang, bang, bang -" In the yard of his hometown in Yushan Village, Yushan Town, Linyi City, Linshu County, he picked up the "gun" and hit his arm several times. After the "BB bullet" bounced, he was killed. Several red spots appeared on the skin where it was hit, and then dissipated.
"I don't feel much, let alone being injured." He said that this was one of the toy guns that Jing Anpeng left behind when he was doing business. The police did not take it away because it was damaged. For seven years, Jing Anbang has been blaming himself, thinking that he sent his brother to prison.
"It's just a few toy guns. At most, they will be confiscated. At the most, they will be detained for a few days. It will be fine." On August 19, 2013, Jing Anbang persuaded his younger brother to surrender, and then drove him to the Qingzhou City Public Security Bureau in Shandong Province.
Jing Anpeng, 25 years old at the time, ran Xinpeng Toy Store in Yongxing International Toy City, Linyi City, which is one of the largest distribution centers for China's toy wholesale industry. Around 2004, after Jing Anpeng graduated from technical secondary school, he continued to work here until he owned a front house of more than 10 square meters.
Qingzhou City Police found this place by following the clues.
The first person involved in the incident was Qingzhou farmer Li Xiaohai. He sold toy guns through social networks, which attracted the attention of the police. His source of goods comes from Li Xiulan, and then from Jing Anpeng.
html On September 12, a Yongxing International Toy City merchant who requested anonymity told reporters that before 2013, there were many merchants selling such toy guns in the market. "The goods moved quickly and they were all willing to sell them." He said, "Online shooting games were very popular at that time, and most young boys bought them because they liked them." This merchant has also been investigated and punished by the public security organs for selling toy guns.Changes in Appraisal Standards
Jing Anbang remembers that when his younger brother was first imprisoned, he went to visit him in prison. The younger brother in the glass wall took the phone and cried to him, "Brother, you are sentenced to 10 years for selling more than a dozen toy guns. It is too unfair." "
Jing Anbang clenched his fists and promised his brother that he would "redress justice." He graduated from junior high school and worked in the county for a long time. He couldn't understand how a toy gun became a gun.
Zhou Yuzhong, a lawyer who has represented many imitation gun cases, represented Jing Anpeng in the case after seeing Jing Anbang’s help information on the Internet. He believes that the core of the case is why the toy gun can be identified as a real gun.
The key evidence for the court's decision is the "Firearm Identification Certificate" issued by the Criminal Science and Technology Research Institute of the Weifang Municipal Public Security Bureau, and the identification standards are determined by the Ministry of Public Security. In 2010, the Ministry of Public Security issued the "Regulations on the Performance Appraisal of Firearms and Ammunitions Involved by Public Security Agencies", which stipulates that non-standard firearms that cannot fire standard ammunition will be recognized as firearms when the muzzle specific kinetic energy of the projectiles fired is greater than or equal to 1.8 Joules/cm2.
"Muzzle specific kinetic energy" is a key indicator of the inflicting power of a gun.
According to the appraisal certificate, the muzzle specific kinetic energy of the 15 toy guns ranged from 4.13 joules/cm2 to 11.95 joules/cm2.
The focus of Zhou Yuzhong's defense mainly revolves around whether this standard can determine that the gun-shaped object involved in the case has the attributes of a gun in the criminal law sense.
Firearms as mentioned in the Firearms Management Law refer to various firearms that are powered by gunpowder or compressed gas and use tubular instruments to launch metal projectiles or other substances, which are sufficient to cause casualties or loss of consciousness.
In 2018, the Criminal Division of the Research Office of the Supreme People's Court stated in a written statement that since the Gun Management Law only clarifies the performance characteristics of guns, in practice cases have been handled in compliance with the gun identification standards set by the public security department. According to the "Regulations on the Performance Appraisal of Firearms and Ammunition of Public Security Organs Involved in Cases" issued by the Ministry of Public Security in 2001, the gun appraisal standard is that the specific kinetic energy of the muzzle is about 16 joules/cm2. Later, based on the need to strictly control firearms and the flaws in the standard itself, the Ministry of Public Security issued new regulations in 2010, lowering the identification standard to a muzzle specific kinetic energy of 1.8 joules/cm2.
The Criminal Division of the Research Office of the Supreme People's Court stated that relevant cases were handled according to the standard that the specific kinetic energy of the muzzle is about 16 joules/cm2, and no problems or disputes were caused. "After the above-mentioned adjustments to the gun identification standards, gun-related cases have shown diversity and complexity in recent years. In particular, some cases involving guns powered by compressed gas and with low muzzle specific kinetic energy, the guns involved The injurious power is low. When deciding whether to pursue criminal liability and determine the penalty, relying solely on the number of guns may go against the general public's understanding and violate the requirements of the principle of proportionality of crime and punishment in judicial practice in the handling of individual cases. It has aroused widespread concern from all walks of life and has poor legal and social effects."
Professor at the Law School of the People’s Public Security University of China Chen Zhijun noticed the impact of lowering this standard in 2013.
"The critical value of identification has been greatly reduced to about one-tenth of the original standard. There have been a large number of defendants who insisted that the object of their behavior was a 'toy gun' but were convicted because they were identified as meeting the new identification standard. It is difficult for judicial decisions to gain public approval in cases involving criminal liability for gun crimes."That year, Chen Zhijun stated in the paper "Criminal Law Analysis of Dramatic Changes in Firearm Identification Standards" that many domestic and foreign studies determined that the critical point for identifying a firearm as having the power to cause injury was 16 Joules/cm2.
He believed that "1.8 Joule ratio Projectiles with kinetic energy are far from being able to penetrate human skin, and a specific kinetic energy that cannot penetrate human skin is inappropriate as a standard for injuring the human body. "
In the case of Jing Anpeng and others, according to Zhou Yuzhong's recollection, "In fact, the court of first instance also confused the concepts of imitation guns and firearms, which was contradictory. "
One of the facts found in the first-instance judgment is that Jing Anpeng sold imitation guns to Li Xiulan. Zhou Yuzhong believed that the court determined that what was sold was imitation guns, and therefore should be acquitted, "because selling imitation guns does not constitute a crime."
In accordance with the relevant provisions of the Firearms Management Law, those who sell imitation guns may be given a warning or subject to administrative detention of not more than 15 days.
“If the court of first instance convicts Jing Anpeng of illegally selling firearms, it should determine that the gun-shaped object involved in the case is a gun. Not a simulated gun. Zhou Yuzhong believed based on this, "Six months after the first-instance court heard this case, it didn't even know the concept and difference between a simulated gun and a gun, let alone Jing Anpeng, a commoner." "
The Weifang Intermediate People's Court conducted a second instance of the case, and the final criminal ruling changed the term "imitation gun" in the first instance judgment to "gun-shaped object." However, the second instance upheld the original verdict.
Sentencing varies
In recent years, the handling of cases involving toy vendors involving guns has varied greatly in different regions.
When Zhou Yuzhong originally defended Jing Anpeng, he pointed out one point - the Shantou District Court of Guangdong, where the toy guns involved were produced, had a large number of involved manufacturers. , was sentenced to a very light sentence for the crime of illegal business. "The producer who made the biggest profit did not commit the crime of illegal manufacturing of guns, but the crime of illegal trading of guns"
In 2012, the Daxing District Procuratorate of Beijing investigated two cases of toy vendors. "Gun-related cases" were treated as "if doubtful, no prosecution". One of the couples was selling toys at a farmer's market, and 18 toy guns had a muzzle specific kinetic energy of more than 1.8 joules/cm2, which were identified as guns. This case is related to The cases of Jing Anpeng and Li Xiulan were similar.
At that time, the prosecutor handling the case from the Daxing District Procuratorate said in an interview that identifying toy guns as guns in the sense of criminal law is only one of the objective elements of a crime. Whether the perpetrator must bear criminal responsibility. , but also to analyze their subjective guilt. As the saying goes, "no criminal intent means no crime." Judging from the place where the couple purchased and sold the gun-like objects, the price, and the appearance of the gun-like objects, it is difficult to conclude that the two knew this. Gun-shaped objects are firearms in the sense of criminal law.
On the evening of October 12, 2016, 51-year-old Zhao Chunhua from Tianjin was captured by the police while setting up a balloon shooting booth. A total of 9 gun-shaped objects were seized at the scene, and 6 were later identified as illegal. Guns. On December 27, 2016, she was sentenced to three years and six months in prison by the Hebei District People's Court of Tianjin City for setting up a balloon shooting stall, which caused social controversy. Later, Zhao Chunhua was sentenced to three years and suspended for three years.
Liang Gaoxin approved
Nearly four years after Jing Anpeng and Li Xiulan were sentenced, on March 28, 2018, the Supreme People's Court and the Supreme People's Procuratorate issued the "About Reply on the Conviction and Sentencing of Criminal Cases Involving Compressed Gas-Powered Firearms and Airgun Lead Bullets"
One background of this move is that in recent years, some higher people's courts and provincial people's procuratorates have issued regulations on how to deal with illegal manufacturing, trading, and transportation. Request instructions on the conviction and sentencing of guns powered by compressed gas, airgun lead bullets, mailing, storage, possession, private possession, and smuggling.
The Supreme People's Court and the Supreme People's Procuratorate issued a reply stating that for illegal manufacturing, buying and selling, transporting, mailing, storing, possessing, concealing, and smuggling firearms powered by compressed gas and with low muzzle specific kinetic energy, the decision on whether to When investigating criminal liability and determining penalties, not only the number of guns involved should be considered, but also the appearance, material, projectile, purchase place and channel, price, purpose, injurious power, and whether it is easy to improve through modification should be fully considered. The injurious force, as well as the perpetrator's subjective cognition, motivation and purpose, consistent performance, illegal income, whether to avoid investigation and other circumstances, comprehensively assess the social harm, adhere to the unity of subjectivity and objectivity, and ensure that the crime and punishment are appropriate.
In 2014, imitation gun dealer Huang Qiming was sentenced to 15 years in prison in Jinan for illegally selling firearms. After the approval of the Supreme People's Court and the Supreme People's Procuratorate came into effect in 2018, Huang Qiming was commuted and exempted from criminal punishment.
"This approval is not a new legislative provision, but a reminder of the principles for judicial organs to handle relevant cases." A legal person familiar with the toy gun case told reporters.
This legal professional who requested anonymity told reporters that even after the approval of the Supreme People's Court and the Supreme People's Procuratorate was released in 2018, it is still common to be convicted of similar acts, but the sentences are lighter than before, but this kind of Legal evaluation is still unfair. "Criminal law should adhere to the principle of unity of subjectivity and objectivity. Conviction cannot mechanically only examine the numerical value of gun-shaped objects. Otherwise, it will easily lead to miscarriage of justice, 'killing without teaching', and failing to achieve good social effects." "
This person said that in the long run, we should study whether the 1.8 joules/cm2 standard is feasible and suitable for criminal trial trials. At the same time, we should avoid frequent criminal prosecutions and serious crimes. In some cases, security penalties are actually imposed. That’s it.
At that time, Zhou Yuzhong emphasized when defending Jing Anpeng that "Jing Anpeng had no subjective intention to buy or sell guns." He believed that Jing Anpeng was engaged in legitimate business activities by opening a toy store in the toy market. Judging from their sales forms, they are all carried out openly through normal logistics. "The real illegal gun and arms buying and selling activities are much more secretive and will never be sent through logistics. The profits obtained from the sales of the gun-shaped objects involved are very small, which is not the same as The benefits gained from buying and selling toys are the same."
He also believed that this case was clearer than ordinary criminal cases because "there was no victim and no direct social harm."
Zhou Yuzhong has been paying attention to toy gun cases and simulated gun cases for many years. He believes that these defendants who buy, sell, possess, and use imitation guns are mostly used for running small businesses or entertainment games. They have been repeatedly prosecuted and even sentenced to more than 10 years or even life imprisonment, which is "extremely devastating" to the families of the parties involved. disaster".
Before Jing Anpeng was arrested, he was scheduled to get married that year, and his son Jing Xiaohe (pseudonym) was just two months old. After waiting for two years, his fiancée returned to his hometown and left the child in the care of Jing Anbang.
In 2018, Jing Anbang’s wife couldn’t stand Jing Anbang’s “obsessed” obsession with appealing for his younger brother, and ran away from home, leaving behind a pair of 4-year-old children.
Same cases should be tried in different cases?
html In the past 2007 years, Jing Anbang took care of his three children while studying law by himself, appealing to the courts and procuratorates step by step, and seeking social help. After the Tianjin Zhao Chunhua case was revised, he also sought advice from Zhao Chunhua’s family members.Li Xiulan’s appeal was successfully retried, and he felt that he “finally saw the light of day.”
The Shandong Provincial Higher People’s Court issued the retrial decision on January 16, 2019.
However, a staff member of the Qingdao Intermediate People's Court who participated in the case said that "only Li Xiulan will be tried, and Jing Anpeng does not need to participate in the trial. The trial can be arraigned outside the court."
To this end, Jing Anpeng’s current attorney, Yin Liangjun, a lawyer from Beijing Weiheng Law Firm, submitted the “Legal Opinion on whether Jing Anpeng and Li Xiulan should jointly hold a retrial or jointly postpone the trial” to the Qingdao Intermediate People’s Court, arguing that alone Regarding Li Xiulan's improper plan for retrial, it is recommended that all the defendants in the original trial of this case, especially Jing Anpeng, should be retried jointly with Li Xiulan.
Yin Liangjun said that the reason why the Shandong Provincial Higher People's Court decided to retry the case was that "the original judgment found that the evidence that the defendant Li Xiulan committed the crime of illegal buying and selling of firearms was not reliable and sufficient." Objectively speaking, the gun-shaped objects purchased and sold by Li Xiulan all came from Jing Anpeng. In other words, the gun-shaped objects purchased and sold by Li Xiulan and the gun-shaped objects sold by Jing Anpeng were from the same batch, with the same quantity and model. It is impossible for Li Xiulan to buy and sell toy guns while Jing Anpeng sells real guns. There is no possibility that Li Xiulan's "evidence is not reliable and sufficient" while Jing Anpeng's "evidence is indeed sufficient".
A staff member of the Qingdao Intermediate Court explained that since the two were held in two prisons respectively, "technically it is not possible to hold court at the same time," but Jing Anpeng would be arraigned via remote video.
"There is no problem with the facts of this case. The main problem is the application of the law. It doesn't matter if the defender is not available. Just submit a written defense opinion." The staff member said that this form does not affect the handling of Jing Anpeng, although Shandong The Provincial Higher People's Court ordered Li Xiulan to be retried, but it will conduct a review of the entire case. "If the case changes in the future, it will be a change in the entire case. All defendants will 'free ride', and it is not Li Xiulan's problem alone."
Yin Liangjun believes , Jing Anpeng was only tried out of court, which actually deprived him of his right to litigate. He was suspected of illegal procedures and would also affect the ascertainment of the relevant facts of Jing Anpeng and Li Xiulan. This type of case attracts great public attention, and it is necessary to conduct a comprehensive and open trial in accordance with the law.
After the Shandong Provincial Higher People's Court ordered a retrial of Li Xiulan's case, due to the impact of the new coronavirus epidemic, on March 12 this year, the Qingdao Intermediate People's Court once ruled to suspend the trial of the case due to force majeure. The ruling stated that the parties involved in the case include Jing Anpeng, Li Xiulan, Li Xiaohai and Dong Bingbing.
"It can be seen that the above four people have been clearly listed as parties to the same case in the effective judgment of Qingdao Intermediate People's Court." Yin Liangjun said that since they were suspended at the same time, they should be resumed at the same time. "There is no trial for just Li Xiulan, but for Li Xiulan." Jing Anpeng, Li Xiaohai, and Dong Bingbing were thrown aside."
In response to this, the Qingdao Intermediate People’s Court replied to a reporter from China Youth Daily and China Youth Daily that the court will reasonably arrange the hearing based on the retrial decision, the actual situation of the case, the epidemic situation and the detention situation of the defendant, and hear the case in accordance with the law. The whole case will be tried, and it will not be affected by the absence of some parties."
Yin Liangjun said that he will defend Jing Anpeng in the same direction as the first and second trials.
According to the original trial ruling, Jing Anpeng will be released on August 18, 2023. But Jing Anbang said that even then, he and his brother will continue to appeal together to restore his brother's "innocence" and give his nephew an explanation. "If it is a real gun, we will accept the sentence of 10 years or even life, but for toys Even if we are sentenced to 10 years, we will not admit it.”
Jing Xiaohe has been living with his uncle since his father’s accident. He once accompanied Jing Anbang to visit Jing Anpeng in prison. Jing Anbang lied to him and said, "Your father is a soldier here."
Last year, 5-year-old Jing Xiaohe suddenly said to Jing Anbang, "You just love to lie to children." He said, "My father is not a soldier. If you are in jail, why do you have to look at me through the glass? Why can't you come and hug me?" After
finished speaking, the little boy lay on the bed and sobbed.
In the paper published in the "Journal of the National Prosecutor's College" in 2013, Professor Chen Zhijun reminded law enforcement officers to think from their perspective - when everyone takes off their police uniforms, prosecutors' uniforms or legal robes and returns home, if their family members also I bought a few plastic toy guns for my children from a small commodity market and was suspected of a gun crime. "This is obviously not the public safety we intend to pursue through criminal legislation and criminal justice. It is not conducive to social harmony and goes against the rule of law to pursue the public." The original intention of well-being”. (Reporter Geng Xueqing)
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