Articles by "Criminal Law"

 

First Instance Judgment in the Rape Case of Li XX and others in China

The highly-regarded rape case of Li Moumou and others was sentenced in the Haidian District Court of Beijing this morning of September 26. The court sentenced the defendant Li Moumou to 10 years in prison for rape.

Adult 12 years imprisonment, deprivation of political rights for 2 years

 Wei XX (brother) fixed-term imprisonment of 4 years

 Zhang XX fixed-term imprisonment of 3 years, suspended for 5 years; Wei XX (brother) fixed-term imprisonment of 3 years, suspended for 3 year.


The following is the full text of the judgment of Haidian Court:

 

   1. Facts ascertained by the trial

At about 0:00 on February 17, 2013, the defendants Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou, Wei Moumou (brother) and Li Mo went to Chengfu Road, Haidian District. This city Drinking and consumption in the "Scorpio" private room of the night bar in Beijing. The bar waiter surnamed Zhang arranged for the victim Yang Moumou and Xu Moumou to drink, sing, and play games together in the private room.

At about 3:30 in the morning, Yang Moumou was supported by a waiter surnamed Zhang to walk out of the private room with Li Moumou and others.

 

   At this time, Yang XX was unable to walk normally and was in a drunk state. Yang Moumou, accompanied by a waiter surnamed Zhang, boarded a black Audi 07 off-road vehicle driven by Wei Moumou (brother), and arrived at the Jindingxuan restaurant in Jinyuan Times Shopping Center in Haidian District. 

Soon after they were seated, Li and others had disputes with other customers over trivial matters, and were persuaded to leave the restaurant after being persuaded to open.

Yang followed to leave the restaurant and boarded the Audi off-road vehicle driven by Wei XX (brother) with the waiter named Zhang. Li Moumou, Wei Moumou (brother), and Li Mou drove to the underground garage of Renji Villa in Haidian District to meet.

Later, Li and the waiter surnamed Zhang left first for some reason, and the others took the Audi off-road vehicle driven by Wei (brother) to leave into the Jishan Villa.

 

   In the car, Wei XX (brother) is in the passenger seat, and from left to right in the back row are Zhang XX, Li XX, Yang XX, and Wang XX. 

On the way, Yang found that the waiter surnamed Zhang was not there, so he asked to get off and leave, shouting, kicking and struggling after being rejected. Li Moumou, Wang Moumou, Zhang Moumou and others then forcibly suppressed and controlled Yang Moumou. Li XX repeatedly slapped Yang on the face, and Wang also beat Yang XX.

 

   around 5:50 in the morning. The five defendants took Yang XX to the Hubei Building in Haidian District. Wei Moumou (brother) and Zhang Moumou got off the car first to the hotel front desk.

Wei Moumou (brother) checked in using other people's ID cards and entered the hotel room with Zhang Moumou first. Then Li, Wang and Wei (brother) led Yang to enter the elevator through the hotel lobby. 

During this period, Li held Yang's right arm tightly with his left hand, pinching Yang forward, and Wang assisted in control on Yang's left side.


 In the elevator, Li You slapped Yang's head in facial movements. After exiting the elevator, Yang was dragged into the hotel room by Li. Li Moumou and others asked Yang to take off his clothes, but Yang refused, so Li, Wang and others slapped and kicked Yang and forcibly took off Yang’s clothes. 

Subsequently, Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou (brother) and Wei Moumou (brother) forcibly had sex with Yang Moumou in turn.


During the period, some defendants committed obscene acts. Later Li Moumou and Wei Moumou (brother) gave 2,000 yuan to Yang Moumou. 

At about 7:30, the five defendants took Yang Moumou away from the Hubei Building and put Yang down on the way.

 

   On February 17 and 18, Yang went to Beijing Jinghua Friendship Hospital and Peking University Third Hospital successively, and was diagnosed with head and face trauma, concussion, etc.

On February 19, Yang XX, accompanied by others, went to the public security organ to report the case. 

Appraised by the judicial appraisal department according to law, Yang Moumou saw flaky subcutaneous hemorrhage on the upper left eyelid

 

(Absorption period), flaky subcutaneous hemorrhage in the back of the nose (absorption period, size of 2 cm x 2 cm), flaky subcutaneous hemorrhage in the left temporal and left zygomatic area (absorption period, size of 6 cm x 3 cm), physical injury The degree is a minor injury.

 

   On February 21st, 1 attached Xu, Li XX, Wang XX, Wei XX (brother), and Wei XX (brother) were arrested by the public security organs. At 2 o'clock that day, with the assistance of Wei XX (brother), the public security organs captured Zhang XX.

 

   2. Facts of the allegations and convictions

  The objective manifestation of the crime of rape is the use of violence, coercion or other means to force sexual intercourse with a woman, and what it violates is the right of women to determine sexual behavior according to their own will. 

Therefore, the willingness of the victim is a key element in judging the conviction of rape. 

Throughout this case, the contact between the defendant and the victim began at the bar at midnight on February 17 at midnight, and ended at about 7:30 on the same day when he left the Hubei Building. 

He experienced three stages of drinking at the bar, looking for a hotel, and committing rape. In the first stage, the victim and the defendant drank, sang, and played games. 

By the time they left the bar at about 3:30, the victim was in a state of drunkenness and needed assistance to walk. There is no evidence that anyone asked the victim if he agreed to "launch." 

Therefore, it cannot be determined that the victim followed the crowd to leave the bar to eat out is to agree to "promulgation".

 From the defendant's dispute with others at Jindingxuan to the bar waiter named Zhang left into the Jishanzhuang, the victim was able to walk on his own, but in the process, there was no evidence.

It is confirmed that one of the defendants indicated to the victim the intention of having sex. In the second stage, the five defendants took the victim to search for the hotel. 

On the way, the victim found that the waiter surnamed Zhang was absent and asked to get off the bus. After being refused, he shouted and struggled, but was accused and beaten by Li XX and Wang XX. In a state of "cannot resist". In the third stage, the victim was held hostage to the Hubei Building. Before getting off the vehicle, he was threatened by Li and others. 

After getting off the vehicle, he was pulled forward by Li and Wang, passing through the lobby and entering the elevator until he reached the hotel room.

 

   Surveillance video showed that the victim was dragged and slapped. There was no “voluntary” behavior in his posture. In the hotel room, the victim was beaten again because he refused to undress. He was in a state of “dare not to resist” and was later gang-raped. 

The facts of this case show that the defendants Li Moumou, Wang Moumou, Wei Moumou (brother), Zhang Moumou, and Wei Moumou (brother) violated women's will and jointly used violent means to rape women, and their actions constituted the crime of rape.

 The facts that the People’s Procuratorate of Haidian District of Beijing charged the defendants Li, Wang, Wei (brother), Zhang, and Wei (brother) of rape are clear, the evidence is indeed sufficient, and the charges are convicted. 

The actions of the five defendants were gang rapes, which caused physical and psychological harm to the victims. They were of a bad nature and caused great social harm and should be punished according to law.

 

   3. Combining evidence to evaluate the defense opinions

The defense and defense opinions of the defendant, legal representative, and defender on the facts of the case, the crime and innocence, and the severity of the crime can be summarized into the following four points:

 1. Whether there is illegal evidence 

2. Whether the five defendants and the victim Sexual relations have occurred

 3. Whether the defendant has committed violence to the victim

 4. Whether the defendant has had a sexual relationship with the victim, and whether it is against the wishes of the victim.

 

In response to the defense’s request for the exclusion of illegal evidence, our court found that the five defendant's

Criminal Law, China: Chinese Rape Cases
Criminal Law

confessions during the investigation stage had synchronized video recording certificates, and the legal representatives or adult relatives were present and signed for confirmation when the minor defendants confessed.


 The investigative agency’s procedures for obtaining evidence are legal, and there is no illegal evidence collection such as torture.

As for investigators’ quoting of legal provisions, explaining policies, generalizing statements, clarifying facts, and other sentences during the interrogation process, they are not extortion or inducement. 

There is no reason for the exclusion of illegal evidence in this case, so the defense's application for exclusion of illegal evidence is not supported. 

Regarding the defense's application to view the synchronized video data of the defendant's confession that was not presented in court, our court believes that the content of the application does not fall within the scope of examination for the exclusion of illegal evidence, and there is no need to extract it for examination.

 

   The evidence in this case is sufficient to prove that all the five defendants had sex with the victim. 

(1) The victim Yang Moumou made multiple statements clearly alleging that the five defendants had sexual relations with him.

 (2) The physical evidence appraisal report confirmed that the mixed semen spots of Wei (brother) and Wang were detected in multiple places on the victim's underwear. 

(3) Li's testimony confirmed that Li described the fact that the five defendants gang-raped the victim on the phone after the incident. This plot was also confirmed by Wei's (brother) confession in court. 

(4) The five defendants all confessed to seeing other co-defendants having sex with the victim during the investigation stage, and some of the defendants acted indecently. 

The guilty confessions of the five defendants presented by the public prosecution agency were clear and specific in content, not only corroborating each other, but also consistent with other evidence, and were sufficient for determination. 

Regarding the opinion of the defendant Li Moumou and his defender in court that Li Moumou did not have sexual relations with the victim, our court believes that although the investigative agency did not detect Li Moumou's semen speckles from the victim’s underwear.

But combined with other defendants’ confession and evidence in court, the victim’s statement, and the description of the facts that the witness Li heard from Li’s mouth, it clearly and stably proved the fact that Li was the first to have sex with the victim. And the guilty confession in the investigative stage is mutually corroborated, which is sufficient to confirm. 

Li Moumou's defense that he "fell asleep shortly after entering the room and did not have sex with the victim" did not match the evidence in the case and our court rejected it.

 

   The evidence in this case is sufficient to prove that multiple defendants jointly committed violence to the victim Yang XX. (1) The victim stated that he was pressed and assaulted by Li Moumou, Wang Moumou and others in the car, was pulled by Li Moumou while going to the hotel room, and was beaten by multiple defendants in the room. Among them, Li whipped his head and face several times, Wang kicked his head, and was forcibly stripped naked by several defendants. 

(2) The surveillance video of Hubei Building showed that when passing through the lobby, the victim was not holding Li Moumou, but while Li Moumou held his right arm and pulled it forward, while Wang Moou held his left side on the other side. Arm, in line with the characteristics of the forced state: In the elevator, when Li Moumou slapped the victim's head and face, he raised his hand and paused before shooting. 

This is a violent act: Li Moumou was in the process of walking to the room. When the victim leaned backward and did not want to move forward, he made obvious pulling actions. 

(3) Witnesses such as Song and Yue confirmed that they saw injuries on the victim's face afterwards: The testimony and diagnosis certificate of the doctor from Peking University Third Hospital confirmed that the victim had bruises on his face when he went to see a doctor, and the consequences confirmed the victim's statement The fact of being beaten and raped.

 (4) Combining the victim's injury photos, public security forensic examination and identification report analysis, it can be ruled out that it was caused by another person's or self-attack afterwards, and it can be determined that the victim's injury was caused by the defendant in this case.

 (5) The witness Li certifies that after the incident, Li told him that he had beaten the victim.

 (6) On the way to find the hotel, Li and Wang sat on both sides of the victim. At that time, the victim struggled fiercely, and there was a strong reaction from kicking the driver. The two defendants exercised strong control over the victim. 

Most of the defendants had confessed that Li and Wang had performed violent acts such as slaps, kicks and kicks on the victims. Zhang Moumou and Wei Moumou (brother) once confessed to seeing the victim had redness and swelling on his face after being beaten. 

The above confession not only confirms each other, but also basically coincides with the victim's statement. There is objective evidence to support it, which is sufficient to confirm.

 

   The evidence in this case is sufficient to prove that the defendant’s sexual relations with the victim violated the victim’s true wishes.

(1) The victim clearly stated on many occasions that he was unwilling to open a room with the five defendants. 

On the way to the hotel, during the process of getting off the car and entering the room, and in the hotel room, he asked the other party to let him leave. 

(2) The surveillance video showed that the victim was dragged into the hotel lobby, elevator and walked to the room. 

He leaned backwards in the corridor and did not want to go forward, which confirmed the victim's statement.

 (3) The confessions of the five defendants, the testimony of the waiter surnamed Zhang, Mr. Li and the bar surveillance video showed that the victim was drunk when he walked out of the bar room. He found that the waiter surnamed Zhang had a huge contrast in his behavior after leaving, which confirmed his unwillingness to be alone with him. The mentality of the five defendants traveling.

 (4) The defendants have all confessed to the fact that in the hotel room, the victim was unwilling to undress and was forcibly undressed after hiding in a corner.

 (5) The action of the victim hitting the TV cabinet or wall with his head is in line with the response characteristics after being forced to have sex.

 (6) Li’s testimony proved that when he asked the victim afterwards whether he was willing to have sexual relations, Li said, “If you don’t let it go,” he also said that Wang and others beat the victim. 

Combining the above facts, it is sufficient to prove that the victim has a subjective state of will for sexual relations against his will.

 

   Regarding the defense's claim that the victim was autonomous and willing to follow several defendants, and the subjective mentality of seduce minor defendants, proactively "promulgated", and voluntarily have sex with the defendant, our court believes that there is a lack of evidence support. 

There is no evidence that the victim had a clear intention to agree to have sex with the five defendants. As for whether the victim and the bar staff contacted Li's family, it was a post-event behavior and did not affect the subjective will of the victim at the time of the incident. Identified. 

"Accompanying wine" and prostitution belong to two different types of behavior, and there is no necessary connection between the behavior of accompanying wine and prostitution. Women have equal sexual rights. 

When they are reluctant, any use of force to force sexual relations is a rape against their will. Identity or personal living habits are not sufficient to infer the subjective mentality of the behavior. 

Therefore, the defense uses the victim's identity and life experience to presume his subjective mentality, which lacks objectivity.

 

   4. Sentencing opinions

In this case, the five defendants actively and directly committed adultery against the victim. Wei XX (brother), Zhang XX, and Wei XX (brother) did not only play a secondary or auxiliary role in the joint crime.

 The defense opinions of the three defendants being accomplices were not accepted by our court. However, the role of each defendant in a joint crime is indeed different. The court comprehensively considers the circumstances of the whole case and the specific circumstances of each defendant's crime. 

According to the criminal policy of both leniency and strictness, it is differentiated when sentencing.

 

   Defendant Li Moumou was the offender and the main violent perpetrator in the joint crime, and his status and role were obviously greater than that of other defendants, and he had no repentance.

 In view of the fact that at the time of the crime he had reached the age of 16 but not the age of 18, he was a minor school student, and based on the principle of education and correction in favor of minor criminals, he was given a lighter punishment according to law.

 

   Defendant Wang is the only adult among the five defendants. He is second only to Li in joint crimes. He is the main perpetrator of violent acts, and the violent acts hurt the victims more and are subjectively malignant.

 In view of the fact that he respected the defender's guilty defense opinions before the end of the court trial, he had certain regrets, and he could consider it when sentencing.

 

The defendant Wei XX (brother) drove a car and opened a house in the joint crime, and was an active perpetrator, but his role was smaller than that of the defendants Li XX and Wang XX. 

In view of the fact that he was 16 years old but not 18 years old at the time of the crime, he is a minor school student.

 After arriving in the case, he actively assisted the public security organs in arresting the accomplices. 

He has made meritorious deeds: He has a good attitude of pleading guilty and can apologize to the victim in court and sincerely repent. 

Actively compensate the victims for their damages, and the victims also recommend that they be given a lighter punishment. 

Therefore, in accordance with the principle of education and correction in favor of juvenile offenders, the punishment shall be reduced in accordance with the law.

   Defendant Zhang Moumou mainly followed other defendants in the joint crime, and had shown mercy to the victim, and his effect was relatively smaller than the first three defendants. 

In view of the fact that he was 16 years old but not 18 years old at the time of the crime, he is a minor school student: he can truthfully confess his and his co-convict's main crimes after arriving in the case and in the court trial, and he has a good guilty plea attitude. Take the lead in paying compensation and before the court. Proactively write an apology letter to the victim, apologize to the victim in court, and actively compensate the victim for his losses. 

The repentance is obvious. The victim also recommends a lighter punishment: and his usual performance is good, subjectively malignant and personal danger is small, so it is beneficial to the principle of education and correction for juvenile offenders shall be mitigated in accordance with the law and suspended sentences shall be applied.

The defendant Wei Moumou (brother) mainly followed other defendants in the joint crime, did not directly commit violence to the victim, and had shown mercy to the victim, which was less effective than the other defendants. 

Given that he had committed fourteen at the time of the crime he is the youngest underage student who is under the age of 16, and is the youngest school student in this case.

 He can basically confess his crimes truthfully after arriving in the case and during the court trial, with a good confession attitude: Able to apologize to the victim in court and actively compensate the victim for his losses. 

The victim is also recommended to be punished lightly if he has a performance of repentance: and his previous performance is good, subjectively malignant and personal danger is small, so in line with the principle of education and correction in favor of juvenile offenders, he shall be given a lighter punishment according to law, and shall apply probation.

  Combine the above opinions. In accordance with the relevant provisions of the Criminal Law, the court sentenced defendant Li Moumou to 10 years imprisonment for rape. 

The court sentenced defendant Wang Moumou to 12 years imprisonment, deprived of political rights for two years: sentenced defendant Wei Moumou (brother) to fixed-term imprisonment of four years.

The defendant Zhang XX was sentenced to three years imprisonment with a five-year probation; the defendant Wei XX (brother) was sentenced to three years imprisonment with a three-year probation.

   When the sentence was pronounced, our court informed the right of appeal according to law. After the verdict was pronounced, the collegiate panel gave the defendant a post-sentence interpretation and court education based on the verdict and the circumstances of the trial, and arranged a family meeting between the minor defendant and his relatives.


Refer:

  1. China Rape cases studies
  2. Rape of Minor Girl China






 

Judicial Interpretation of the Supreme Court Rape Case, China

From a broad perspective of society, any act in which one party uses violence or threats to force the other party to have sex with him is considered rape (that is, if a woman forces a man to have sex with him, it is also rape in the eyes of most people). When the victim is unable to refuse to have sex because of alcohol, drugs, or religious influence, having sex with him is also considered rape. Women who abet and help men rape women can also become accomplices in the crime of rape.

 

Q. What are the judicial interpretations of rape?

Ans. The Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security "Answers to Several Questions Concerning the Specific Application of Law in the Current Handling of Rape Cases" (1984.4.26 [1984] Fa Yan Zi No. 7)

 

1. How to determine the crime of rape?

The crime of rape refers to the act of forcibly having sexual intercourse against a woman by violence, coercion or other means.

 

Knowing that a woman is a mentally ill person or a person with dementia (to a serious degree) and has sex with her, no matter what methods the criminals take, they should be punished as rape. 

Sexual behavior with a patient with intermittent mental illness during the period before the onset of the disease does not constitute the crime of rape if the woman agrees.

 

When determining whether it is against the will of a woman, it cannot be divided by the style of the victimized woman.

 

Forcing a woman who has sex with a woman with a bad style should also be convicted of rape.

 

The determination of rape cannot be based on whether the victimized woman has shown resistance as a necessary condition. 

For women who have not made any expressions of resistance, or the expressions of resistance are not obvious, specific analysis and careful distinction should be made.

 

2. How to identify the violence, coercion and other means in the crime of rape?

"Violent means" refers to the methods that criminals directly use against the victim by beating, binding, choking, or pressing down, etc. that endanger personal safety or personal freedom and make women irresistible.

 

"Coercive means" refers to the means used by criminals to threaten and intimidate the victimized woman to achieve mental coercion. Such as: threatening to retaliate, expose privacy, and harm relatives.

 

Use superstitions to intimidate and deceive, and use parenting, affiliation, power, and isolation and helpless environmental conditions to coerce, persecute, etc., to force women to endure humiliation and surrender, and dare not resist.

 

Cultivation, affiliation, and use of power to have sex with women cannot all be regarded as rape. 

The perpetrator used the specific relationship between him and the victim to force submission, such as the elder father used to torture or deduct the living expenses to force the elder to tolerate the adultery, or the perpetrator used his power to take advantage of the danger to adulterate the woman. Both constitute rape.

 The perpetrator used his power to lure the woman, and if the woman used each other to have sex with him, it would not be a crime of rape.

 For those who have used their power to rape many women and the circumstances are bad, they can be sentenced to hooliganism.

 

"Other means" refers to criminal elements using means other than violence and coercion to make the victim women irresistible. 

For example: using the opportunity of a woman to be seriously ill and sleeping to commit adultery. Using drunkenness, drug anesthesia, and using or counterfeiting to treat diseases.

 

3. What crime and non-crime, and the boundary between this crime and technical crime should be strictly distinguished when handling rape cases?

1. Make a distinction between rape and unmarried sexual misconduct that unmarried men and women commit voluntarily in the course of love.

 

2. How to distinguish between rape and adultery?

 To be careful of:

(1) Some women commit adultery with others, and once they turn their faces, their relationship deteriorates, or after the matter is exposed, they fear losing face, or shirk responsibility or put blame on others, etc., who describe adultery as rape and cannot be criminalized as rape.

 

In handling the case, with regard to the so-called half-push and half-implementation issues, it is necessary to know the usual relationship between the two parties, the circumstances and circumstances under which the sexual behavior occurred, what was the attitude of the woman after the incident, and under what circumstances the facts and circumstances were reported.

Judicial Interpretation Chinese Rape Criminal Law, infographics


 A careful review and a thorough analysis are not against women's will, and it is generally not appropriate to be punished as rape. If it is against a woman’s will, he shall be punished with rape.

 

(2) The first sexual act violated the will of the woman, but it was not reported afterwards. Later, if the woman voluntarily had sex with the man many times, it is generally not appropriate to be punished as rape.

 

(3) After a criminal has raped a woman, he threatens the victim mentally, forcing him to continue to endure humiliation and submission, he shall be punished as rape.

 

(4) Both the man and the woman commit adultery at first, and then the woman is unwilling to commit adultery, and the man entangles and coerces him with violence or corrupt reputation. 

Forcibly having sex with the woman, he shall be punished as rape.

 

3. How to Distinguish between gang rape and messing about sex between men and women?

When some gangsters commit crimes, they both engage in messes between male and female gangsters and kidnap young women for rape. The latter should be convicted of rape.

 

4. How to penalize women who instigate or help men rape?

A woman who instigates or assists a man in committing a rape crime is a joint crime, and should be determined as an abettor or an accomplice according to her role in the rape crime, and be punished in accordance with the relevant provisions of the Criminal Law.


5. What is the judicial interpretation of rape by the Chinese Supreme Court?

"In order to punish the crime of rape in accordance with the law, according to the relevant provisions of the Criminal Law, the judicial interpretation of the crime of rape by the Supreme Court is as follows:

Article 17 and Article 236, paragraph 2 of the Criminal Law

For a person who has reached the age of 14 but not the age of 16, who has sex with an underage girl constitutes a crime, he shall be convicted and punished for rape in accordance with the provisions of Article 17 and Article 236, paragraph 2 of the Criminal Law.

 Sexual relationships are not considered a crime if the circumstances are minor and have not caused serious consequences.

If the perpetrator has committed both the rape of women and the rape of an underage girl, he shall be punished severely for rape in accordance with the provisions of Article 236 of the Criminal Law.


What is the judicial interpretation of the Supreme Court's surrender and meritorious service?

"In order to correctly identify surrender and meritorious service, criminals who have surrendered or meritorious service shall be subject to penalties in accordance with the law, and the specific application of the law is explained as follows:

Article 1 According to the first paragraph of Article 67 of the Criminal Law:

After committing a crime, he voluntarily surrenders to the crime and truthfully confess his crime is to surrender.

(1) Automatic surrender means that the facts of the crime or the suspect has not been discovered by the judicial organ, or although the suspect has been discovered, but the suspect has not been interrogated or has not taken compulsory measures, take the initiative and directly report to the public security organ, the people’s procuratorate or The people's court surrendered.

Criminal suspects surrender to their unit, urban and rural grass-roots organizations, or other relevant persons in charge.

 The criminal suspect entrusts others to surrender to the case due to illness, injury, or in order to reduce the consequences of the crime, or surrender to the case by letter or power, the crime has not yet been judicially established.

The agency found that, only because of suspicious behavior, after being cross-examined and educated by the relevant organization or judicial agency, they voluntarily confessed their crimes. They fled after committing a crime, and voluntarily surrendered in the process of being wanted or pursued; after investigation, they are indeed ready to commit crimes. 

Or if they are caught by the public security organ while they are surrendering, they shall be deemed to have surrendered automatically.

It is not because the criminal suspect takes the initiative, but is persuaded and accompanied by relatives and friends to surrender; if the public security organ informs the suspect’s relatives or friends, or sends the criminal suspect to surrender after reporting the crime, it shall also be regarded as automatic surrender.

If a criminal suspect voluntarily surrendered and then fled, he shall not be deemed to have surrendered.

(2) A truthful confession of one's own crimes means that after the criminal suspect voluntarily surrendered to the crime, he truthfully confessed his main crime facts.

If a criminal suspect who has committed multiple crimes only truthfully confessed part of the crimes committed, only the act of truthfully confessing part of the crime is deemed to be surrendered.

In a joint crime case, the criminal suspect should not only truthfully confess his crimes, but also the known co-criminals, and the principal should confess the co-criminal facts known to other co-criminals before they can be deemed to have surrendered.

A criminal suspect who voluntarily surrenders and truthfully confessed his crime and then retracts his confession shall not be deemed to have surrendered; but if he can truthfully confess before the first instance judgment, he shall be deemed to have surrendered.

Article 2 According to the second paragraph of Article 67 of the Criminal Law, criminal suspects, defendants and sentenced criminals who have been subjected to compulsory measures shall truthfully confess crimes that the judicial organs have not yet grasped, and that they are not consistent with those already grasped or sentenced by the judicial organs. If the confirmed crimes belong to different kinds of crimes, surrender is considered.

Article 3 According to the first paragraph of Article 67 of the Criminal Law, criminals who surrender can be given a lighter or mitigated punishment; those who commit a lesser crime can be exempted from punishment. 

The specific determination of lighter, reduced or exempted punishment should be based on the severity of the crime and the specific circumstances of the surrender.

Article 4 Criminal suspects, defendants, and sentenced criminals who are subjected to compulsory measures may truthfully confess crimes that the judicial organ has not yet grasped, and which are of the same kind of crimes as those already grasped by the judicial organ or confirmed by the verdict, may be lightened as appropriate. 

Punishment: If the same kind of crimes truthfully confessed are more serious, they should generally be given a lighter punishment.

Article 5 According to the provisions of the first paragraph of Article 68 of the Criminal Law, criminals have reported and exposed other criminal acts after they arrived in the case, including criminals in joint crime cases who reported other crimes other than the co-criminal crimes, which were verified to be true. 

Provide important clues to the investigation of other cases, which are verified to be true.

 prevent others' criminal activities; assist judicial organs in arresting other criminal suspects (including co-convicts).

Those with other outstanding performances that are beneficial to the country and society should be deemed to have performed meritorious service.

Article 6 After the criminals in a joint crime case come to the case and expose the facts of the joint crime, they may be given a lighter punishment as appropriate.

Article 7 According to the provisions of the first paragraph of Article 68 of the Criminal Law, criminals have reported or exposed other people's major crimes, which are verified to be true, provide important clues for the detection of other major cases, which are verified to be true.

Prevent others from major criminal activities.

Assist judicial organs in arresting other major criminal suspects (including co-convicts).

Those who have made other major contributions to the country and society shall be deemed to have performed major meritorious service.

The standards for "major crimes", "major cases", and "major criminal suspects" mentioned in the preceding paragraph generally refer to criminal suspects or defendants who may be sentenced to life imprisonment or more or the case is in the province, autonomous region, municipality, or nationwide. There are situations such as greater influence.

The above is the judicial interpretation of the Supreme Court’s surrender and meritorious service. Hope you will be satisfied.


Whether the defendant who has surrendered or made meritorious service is to be punished with lenient punishment and the extent of the lenient punishment shall be considered by the facts of the crime, the nature of the crime, the circumstances of the crime, the harmful consequences, social influence, the defendant's subjective malignancy and personal danger, etc.

 Those who surrender should also consider the initiative to surrender, the timeliness and stability of the confession. Those who have done meritorious service should also consider the severity of the reported crime, the possible or sentenced penalties of the reported and exposed person, and the extent to which the clues provided can play a role in detecting the case or assisting in the arrest of other criminal suspects.

 

  Those who have surrendered or made meritorious services shall generally be given a lighter and mitigated punishment in accordance with the law. 

If the crime is less serious, the punishment may be exempted. In similar circumstances, the margin of leniency for defendants who have surrendered should be appropriately wider than defendants who have meritorious services.

 

Although there is a circumstance of surrender or meritorious service, but the circumstances of the crime are particularly bad, the consequences of the crime are particularly serious, the defendant is subjectively malignant, and the personal danger is high, or the person is prepared to surrender and meritorious service in order to evade the law or evade punishment before committing the crime. Leniency punishment.

 

According to the Supreme People’s Court’s judicial interpretation on surrender and meritorious service, if the defendant has a circumstance of surrender and meritorious service, as well as recidivism, drug recidivism and other statutory severe punishment circumstances, it is necessary to consider the specific circumstances of surrendering and meritorious service and the defendant’s circumstances. 

Subjective malignancy, personal danger and other factors shall be analyzed and judged comprehensively, and a leniency or severe punishment shall be determined. 

If the former crime of the repeat offender is a non-violent crime, he can generally be punished with leniency. If the former crime is a violent crime or the former and subsequent crimes are similar crimes, he may not be punished with leniency.



Refer:

Under-age Girl Rape China




 

Laws, Order of Court on House black intermediary Liu Kang and other extortion

The basic facts of the case reported by China Court Online:

 Between November 2016 and September 2017, 21 defendants including Liu Kang used small advertisements, WeChat, QQ and other methods to falsely promote, with low cost, fast move-in, and complete facilities. As a publicity point, after defrauding unspecified victims to sign contracts to collect rent, deposits and other fees from tenants, they are forced to pay additional fees through threats, harassment, etc. Or they fabricate various excuses to force tenants to withdraw by means of high liquidated damages, power and water cuts Rent does not refund tenant rent, deposit and other expenses. Or creates contract “traps” to force tenants to actively breach the contract, thereby illegally obtaining deposits, deposits and other money paid by tenants in advance, and extorting 25 victims within ten months.


Liu Kang were sentenced to imprisonment ranging from seven years to one year and five months, and fined

 The amount involved is more than 300,000 yuan. In December 2018, 21 people including Liu Kang were sentenced to imprisonment ranging from seven years to one year and five months, and fined for committing the crime of extortion. 

After the verdict was pronounced in the first instance, Liu Kang and others filed an appeal, and the court of the second instance ruled to reject the appeal and uphold the original verdict.

 


Typical significance: At present, some illegal intermediaries and personnel use violence or "soft violence" to force tenants to withdraw from their rents or deliberately create traps for "violation of contracts" in the course of their operations, illegally gaining profits, seriously infringing on tenants' personal and property rights, and disrupting 

The housing leasing market order has been improved. In order to purify the housing leasing market environment and promote the healthy and orderly development of the housing leasing market. 

The Chaoyang Court organized housing intermediaries to attend the hearing of the case during the trial process, and fully relied on the online platform to publicize the "traps" of rental housing to the public to improve risk identification and the ability to resist. 

In response to the leaks in the housing rental market management that were exposed by the case, it also sent judicial suggestions to the relevant management departments and received positive feedback, which achieved a good effect of "one case trial and one education".


A series of forced trading cases of "soft violence" in the electronic market by Wang Weigang and others

 

The Haidian Court concentratedly tried a series of forced transaction cases involving more than 60 defendants including Wang Weigang.

This series of evil forces has long been entrenched in electronic market areas such as Zhongguancun Dinghao and E World. 

After attracting victims to the store at low prices, they used "soft violence" methods to force victims to buy electronic products such as mobile phones. 

Wang Weigang and others were sentenced to imprisonment ranging from five years to one year and four months and fined for committing the crime of forced trading. 

After the verdict was pronounced in the first instance, Wang Weigang and others filed an appeal, and the court of the second instance ruled to reject the appeal and uphold the original verdict.

 

Typical significance: Wang Weigang and others rented shops in the electronic market, relying on the mobile phone sales business, used deception, threats and other methods in the Zhongguancun electronic market to implement forced transactions many times. 

On the one hand, they forced multiple victims to buy mobile phones against their true wishes and directly Infringes upon the legitimate rights and interests of unspecified customers shopping in the Zhongguancun electronic market.

 On the other hand, it ignores the basic transaction rules of honesty and trustworthiness, seriously disrupts the normal transaction order of the Zhongguancun electronic trading market, and causes a relatively bad social impact on the overall image of the market.


 The Haidian Court's legal punishment of the series of cases is conducive to safeguarding consumers' personal and property rights, regulating the normal order of the Zhongguancun electronic trading market, and gradually restoring the public's trust in the Zhongguancun electronic trading market.


Cases of extortion and provocation at the train station

The basic facts of the case reported by China Court Online: Huashizhong gathered others to control and control the tourist passenger transport market at Huangtudian Railway Station, S2 Line, Huilongguan Town, Changping District, Beijing. 

It used violent beatings, threats and other methods to forcibly demand property from others, at will Assaulting others, demanding other people’s belongings, forming a gang of evil forces, disrupting the order of social life. 

The defendant carried out 7 illegal and criminal acts within half a year, involving more than 60,000 yuan, which caused a relatively bad social impact. 

The Changping Court found that Huashi Zhong was guilty of extortion and provocation and sentenced him to seven years in prison and a fine of RMB 50,000. 

After the verdict of the first instance was pronounced, Huashizhong appealed, and the court of second instance ruled to reject the appeal and uphold the original verdict.

 

Typical significance: Huashi and the middle class formed an evil force to control the surrounding environment of Huangtudian Railway Station in Changping District, Beijing and control the local "black car" market. 

Through illegal and criminal acts, such as collecting "protection fees" and controlling the "black car" market, it was serious Disrupt the normal market order such as local tourist passenger transportation, and cause relatively bad social impact. 

During the trial of the case, the Changping Court found that there were omissions in the management of the railway station involved in the case, which gave the Chinese evil forces an opportunity to take advantage of it, and then proposed to the Beijing Railway Bureau to "strengthen order maintenance and standardize the management of outsourcing service contracts" to block the railway station "Manage loopholes, improve service management level" and other judicial suggestions. 

The Beijing Railway Administration attaches great importance to it and actively adopts special treatment measures to maintain station order and strengthen integrated management. The order environment of the station has been significantly improved.


Case of Cheng Haiming and others extorting enterprises and nuisance enterprises' production and operation

The basic facts of the case reported by the China Court Online: From 2015 to 2016, Cheng Haiming gathered Zhang Shengnan, Wang Jinwei, Wang Lei and others in Lisui District, Shunyi District, Beijing, specifically targeting enterprises or projects under construction, and using methods such as obstructing construction. 

Project construction units and construction parties extorted property, or used vehicles to block company gates, warehouses, and obstruct customers. 

They made unreasonable demands for "liveness" to companies. Some corporate warehouses were blocked and could not be shipped on time, causing serious economic losses.

 The gates of some companies have been blocked for a month, making them unable to operate normally. 

The illegal and criminal activities of Cheng Haiming and others severely damaged the business environment in Li Sui area, had a bad influence on the normal operation of the enterprise, and had a bad influence on the social atmosphere. 

The Shunyi District People's Court found that Cheng Haiming and others constituted evil forces and sentenced Cheng Haiming and others to imprisonment ranging from 13 years and six months to one year and six months, and fined them for the crime of extortion and provocation.

 After the verdict of the first instance was pronounced, Cheng Haiming and others filed an appeal, and the court of the second instance ruled to reject the appeal and uphold the original verdict.

 

Facing blackmail during business

  Typical meaning: In the course of business, when facing blackmail and nuisance from criminals, companies sometimes adopt the practice of "paying for safety" and tolerate their troubles, which to a certain extent contributes to the arrogance of criminals. 

The evil gangs of Cheng Haiming took advantage of the above-mentioned psychology of business operators to blackmail money or make various illegal demands to the enterprises, which seriously disrupted the production and operation activities of local enterprises, and the circumstances were extremely bad. 

The Shunyi court severely punished Cheng Haiming's evil forces in accordance with the law, fully demonstrating the Beijing court's determination to clean up the regional market environment and create a good business environment in the special struggle against evil.


Chen Haitao and others organized, led, and participated in the case of underworld organizations

The basic facts of the case reported by China Court Online: Chen Haitao was the party branch secretary and village committee director of Wujianfang Village, Fangshan District, Beijing. From 2004 to 2017, Chen Haitao gathered unemployed Cui Jihui, Qu Jianmin, and Li Hongli.

 More than 10 people including his wife Xu Hongxin and his son Chen Lang have repeatedly committed more than 20 illegal crimes, including gathering crowds of gambling, organizing Chinese citizens to go abroad for gambling, gathering crowds to fight, provoking quarrels, colluding bids, false invoices, illegal occupation of agricultural land, and forced trading.

 Activities, illegal contracting of rural beneficial agricultural projects, occupancy of illegal buildings for profit, amassing huge wealth, gradually formed with Chen Haitao as the organizer and leader, Xu Hongxin, Cui Jihui, Qu Jianmin, Li Hongli, Chen Lang and others as active participants Gangland organization. And bribe national staff, provide convenience for the organization to seek illegitimate interests, etc.

 

The Beijing Second Intermediate People's Court held that in order to establish a strong position and establish an illegal authority, Chen Haitao and others carried out a series of illegal and criminal activities through violence and threats, doing evil for wrong, oppressing and ruining the people, and capturing huge amounts of illegal economic benefits. 

 To dominate one side, deliberately make troubles against the masses who hinder their interests and violate their wishes, beat them at will, and push and insult state officials who perform official duties in accordance with the law, so that some people dare not report or accuse them, causing bad influence on the local area. Chen Haitao also concealed criminal record and bad deeds and defrauded party members. 

He successively used methods such as wooing and lure voters to obtain posts such as the head of the grassroots organization in Wujianfang Village, Liulihe Town, Fangshan District, Beijing.

He held the grassroots government for a long time and developed Chen Lang in violation of regulations. Joining the party damages the basic political power and severely disrupts the local economy and social order. 

The Beijing Second Intermediate Court sentenced Chen Haitao to 25 years’ imprisonment on 14 counts of organizing and leading a triad organization, three years of deprivation of political rights, and confiscation of all personal property, sentenced for the crime of participating in a triad organization, the crime of provoking trouble, etc. 

Cui Jihui, Chen Lang, Xu Hongxin and other 13 persons were sentenced to imprisonment ranging from ten years to one year and four months, and all personal property was confiscated or fined.

 

  Typical meaning: This case is the first case involving a gangster heard by a Beijing court since the special struggle against gangsters was launched. The underworld is invading the grass-roots political power and grabbing illegal economic benefits. At the same time, it is accompanied by a "protective umbrella." This is a prominent feature of organized crime in the nature of the underworld.

 The case of Chen Haitao was led by a rural grassroots organization at the time of the case. The time span of the crime was long, the crime was numerous, and the amount of property involved in the case was huge, which caused serious damage to the local grassroots political power and democracy. 

The Beijing Second Intermediate Court imposed a heavier sentence on the defendant Chen Haitao in accordance with the law, and at the same time stepped up its efforts to "break money and blood", and sentenced the organization and leader Chen Haitao and active participants Xu Hongxin and Chen Lang to confiscation of all personal property.

 Severe punishment in accordance with the law in this case is of great significance for consolidating grass-roots political power, strengthening the construction of grass-roots organizations, and maintaining overall social stability. 

After the verdict was pronounced in the first instance, all the defendants agreed not to appeal, and the procuratorial organs did not protest, which achieved the unity of legal, political and social effects.


 

Rape of under-age girls is bad stipulates in Article 236, Paragraph 3 (1) of the Chinese Criminal Law

Other criminal administrative appeals, letters and visits, bail pending trial, criminal defense, national compensation administrative litigation

(The names of the characters in the article are all pseudonyms)

 

How to use the quantitative analysis method to determine that the "rape of women, rape of under-age girls is bad" as stipulated in Article 236, Paragraph 3 (1) of the Criminal Law?

 

Key Tips 

In some rape cases, there are differences in the trial practice whether to directly consider rapes more than three times (not reaching three persons) as "bad circumstances".

If using a combination of qualitative analysis and quantitative analysis, the starting point of sentencing is determined based on the fact that the rape of a woman or the rape of an under-age girl is the basic fact of the crime, and then the number, frequency, means, and consequences of the rapes will affect the composition of the crime.

The criminal facts increase the penalty amount to determine the benchmark penalty, and adjust the benchmark penalty based on the sentencing circumstances such as the attempted rape and the role of the joint crime.

Comprehensively evaluate the specific situation of the whole case, comprehensively evaluate the social harm of the defendant in all rape crimes, and calculate it Quantify the sentencing results, and draw a qualitative analysis result of whether the rape case is a “bad circumstances” rape.

 

CRIMINAL CASE INDEX

First instance: The People's Court of Yiyuan County, Shandong Province (2010) Yi Xing Chu Zi No. 52 Criminal Judgment (May 24, 2010).

 

Second instance: Zibo City Intermediate People’s Court of Shandong Province (2010) Zi Xing Yi Zhong Zi No. 58 Criminal Judgment (November 3, 2010).

 

RAPE CASE

Public prosecution agency (resistance agency): People's Procuratorate of Yiyuan County, Shandong Province.

 

Defendant (appellant): Fang Hongbiao.

 

The court of first instance found that at noon one day in the summer of 2007, the defendant Fang Hongbiao took his daughter Fang Moumou (born February 21, 1999) to take a bath in the pool at the "Wolf's Nest" in Nanshan of the village. A machine for scrubbing and washing his back commits adultery to Fang.

 From the summer of 2007 to the summer of 2008, the defendant Fang Hongbiao raped Fang three times in his home while his daughter Fang was sleeping. 

On March 5, 2010, the People's Procuratorate of Yiyuan County, Shandong Province filed a public prosecution with the Yiyuan County People's Court for the rape of defendant Fang Hongbiao.

 

Underage Girls Rape Case Trial

The People's Court of Yiyuan County held that the defendant Fang Hongbiao repeatedly raped his daughter under the age of 14, and his behavior constituted a crime of rape, and he should be investigated for criminal responsibility and severely punished according to law. 

In accordance with the provisions of Article 236, Paragraph 1, Article 61, Article 45, and Article 47 of the Criminal Law of the People’s Republic of China, the judgment is as follows:

 

The defendant Fang Hongbiao committed rape and was sentenced to six years in prison

After the verdict of the first instance was pronounced, the public prosecution agency stated that "Fang Hongbiao’s behavior falls within the “criminal law” Article 236, paragraph 3, item (1) of the “rape of women, rape of underage girls, the circumstances are bad, and the punishment shall be ten years.

The above-mentioned fixed-term imprisonment, life imprisonment or death sentence. The first-instance judgment was wrongly applied to the law and the sentence was improper”. The defendant Fang Hongbiao filed an appeal on the grounds of “not committing rape”. The defender of the defendant Fang Hongbiao put forward a defense opinion that "there is insufficient evidence to prove that Fang Hongbiao constituted rape."

 

The Zibo City Intermediate People's Court held that after trial, the appellant Fang Hongbiao repeatedly raped his eight- or nine-year-old daughter. 

The circumstances were bad and his behavior constituted the crime of rape and should be severely punished according to law. 

In this case, Fang Moumou’s knowledge and judgment of appellant Fang Hongbiao’s rape behavior were consistent with his actual age and mentality, and it was consistent with appellant Fang Hongbiao’s confession in the public security organs and the circumstances of his own confession.


Criminal Law regarding Rape in China
The inspection records of Fang Moumou Hospital confirmed each other to confirm. Therefore, the appellant Fang Hongbiao’s grounds for “not guilty” and the defender’s defense of “without sufficient evidence to prove that Fang Hongbiao constituted the crime of rape” could not be established. 

The court rejected it. The appellant Fang Hongbiao violated ethics and morality. He repeatedly raped his own young daughter and caused him to urinate incontinence. 

His behavior complies with the provisions of Article 236, Paragraph 3 (1) of the Criminal Law of the People’s Republic of China.

The situation of adultery of underage girls is bad. The reason for the protest of the protest organ is established and accepted by this court.

 The facts ascertained in the original judgment were clear, the evidence was reliable, sufficient, and the qualitative accuracy was accurate.

 The trial procedures were legal, but the law and sentencing were improper. In accordance with Article 236, Paragraph 2, Article 3, Item (1), Article 61, Article 62, Article 45, and Article 47 of the Criminal Law of the People's Republic of China, "The Criminal Procedure Law of the People's Republic of China" Article 189 (1), (2), the judgment is as follows:

 

1. Uphold the conviction of the appellant Fang Hongbiao in the Yiyuan County People’s Court (2010) Yixingchuzi No. 52 Criminal Judgment, that is, the defendant Fang Hongbiao guilty of rape.

 

2. To revoke the sentencing part of the Yiyuan County People's Court (2010) Yi Xing Chu Zi No. 52 Criminal Judgment on the appellant Fang Hongbiao, that is, he was sentenced to six years in prison.

 

3. Fang Hongbiao, the appellant, committed rape and was sentenced to 11 years in prison.

 

Comment and Analysis of Article 236 of the Chinese Criminal Law

The third paragraph of Article 236 of the Criminal Law stipulates five statutory aggravated penalties for the crime of rape. Among them, the provisions of the second to fifth items, as long as the facts of the case are clear and the evidence is sufficient, there are more controversies in judicial practice regarding the application of law.

However, there are big differences in practice as to how to grasp the first item of "rape women and rape of under-age girls with a bad plot".

 

1. The legislative evolution of the aggravated circumstances of rape

On April 26, 1984, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued "Answers to Several Questions Concerning the Specific Application of Laws in the Current Rape Cases" (hereinafter referred to as "Answers") on what is meant by "particularly serious circumstances" "Explained that the "extraordinarily serious circumstances" in the crime of rape mainly include the following situations:

(1) Rape of women or rape of underage girls is cruel

 (2) Rape of women or rape of underage girls or multiple persons or multiple times.

 (3) Gang-raping women, especially the chief elements of gang rape of underage girls.

(4) Suicide, mental disorders, and other serious consequences caused by rape of women or under-age girls.

(5) Abduction and rape of women in public places

(6) More The use of obscene materials, black lantern dances and other methods to lure young women into rape has caused very bad social effects and great harm.”

When the Criminal Law was revised in 1997, the contents of this answer were used for reference, and the content of the answer was adopted in the Criminal Law.

The provisions expressly stipulate the particularly serious circumstances of the crime of rape, and treat them as statutory aggravating circumstances.

The third paragraph of Article 236 of the Criminal Law stipulates five statutory aggravating circumstances:

  1.  Rape of a woman or rape of a young girl with a bad circumstance
  2.  Rape of a woman or rape of a young girl with multiple persons
  3.   Rape women in public in public places
  4.  Gang-rape more than two persons.
  5.  Cause the victim to be seriously injured or killed or cause other serious consequences.”

From the perspective of the structure of this paragraph, the first item is a general provision. Because there are so many situations in reality, it is impossible for the law to list particularly serious circumstances.

 Therefore, using "bad circumstances" to regulate particularly serious rape circumstances leaves the judge with a certain degree of discretion.

 

Compared with the Criminal Law of 1997 and the 1984 "Answers", an obvious change is that the cases of rape of women and rape of underage girls multiple times are not separately listed as aggravating circumstances.

In this regard, a reasonable explanation can only be that this situation is different from other situations that should be aggravated in the crime of rape, and cannot be regarded as an aggravated situation in the crime of rape. 

Therefore, judging from the legislative evolution of the crime of rape, the rape of women and the rape of underage girls many times cannot be regarded as "evil circumstances".

In the absence of express provisions in the current criminal law and judicial interpretation, whether the rape of a woman or rape of an under-age girl many times is deemed to be a bad circumstance.

 There is considerable controversy in judicial practice as to what constitutes a "bad circumstance" behavior. Some believe that rape Women or underage women have been raped more than three times.

Some believe that the methods of raping women or underage women are cruel, and some believe that the same woman has been illegally detained for a long time and raped many times, etc.

 In this case, the procuratorial organs filed a protest on the grounds that "rapeing an underage girl was repeatedly a bad act"

 

2. Using quantitative analysis methods to identify the "evil circumstances" of rape

In standardized sentencing, quantitative analysis methods can be used to send sentencing to rape cases involving rape of women and under-age girls more than once, so as to accurately determine the “evil circumstances” of rape.

 

First, determine the starting point for sentencing. The "Guiding Opinions on Sentencing by the People's Courts (Trial)" (hereinafter referred to as the "Guiding Opinions on Sentencing") stipulates that if a woman is raped or an underage girl is raped once. The criminal circumstances and consequences are general, the starting point for sentencing is three to five years in prison." 

The Implementing Rules of the Provincial Higher People’s Court "Guiding Opinions on Sentencing of the People's Court (for Trial Implementation)" (hereinafter referred to as the "Sentencing Rules") stipulates that if one person commits adultery with an underage girl once, the starting point for sentencing is fixed-term imprisonment of four years and six months to five years-this case.

In the case, the defendant Fang Hongbiao raped his daughter under the age of 14, causing Fang to sometimes suffer from urinary incontinence. Therefore, the Zibo City Intermediate People’s Court determined that the sentence should be five years in prison.

 

Second, determine the benchmark penalty. The "Guiding Opinions on Sentencing" stipulates that on the basis of the starting point of sentencing, the penalty can be increased based on the number of rapes, the number of times, the consequences of causing injuries and deaths and other criminal facts that affect the composition of the crime, and the benchmark penalty is determined. No casualties were caused. 

However, the number of times was four, and the penalty was increased. 

According to the "Sentence Implementation Rules", for each additional time of adultery of the same young girl, one year and six months to two years can be added to determine the benchmark sentence. 

The Zibo City Intermediate People's Court decided to increase the sentence by five years (a year and eight months multiplied by three times) based on the facts of the case and the number of rapes, so the benchmark sentence is ten years in prison.

 

Third, the scale of punishment is adjusted based on the penalty, and the sentence to be pronounced is determined. In this case, the defendant Fang Hongbiao refused to plead guilty. 

He did not have the 14 sentencing circumstances stipulated in the "Guiding Opinions on Sentencing", nor did he have the 25 sentencing circumstances stipulated in the "Sentencing Implementation Rules", so the benchmark sentence is the intended sentence.

 

Fourth, confirm the sentence. The "Guiding Opinions on Sentencing" stipulates: "According to the specific circumstances of the case, a single judge or a collegiate panel may adjust the proposed sentence within a 10% range." "Sentencing Implementation Rules/Regulations:

 "According to the circumstances of the whole case, sole The judge or the collegiate panel may adjust the proposed sentence within a range of 10% and generally not less than one month.” 

The collegial panel held that the defendant Fang Hongbiao, as the guardian of the victim, knew that his daughter was under 14 years old and imposed it four times. 

Adultery, and refused to plead guilty after returning to the case, the subjective malignancy is deep, and should be punished severely as appropriate. 

The collegiate panel's discretion is 10%, that is, 12 months, so the collegiate panel determined that the sentence was eleven years in prison.

 

One of the biggest characteristics of the reform of the standardization of sentencing is that it has changed the previous empirical sentencing law that mainly relied on judges’ personal training and practical experience to “evaluate” sentencing. 

The method of quantitative analysis was introduced into sentencing, the sentencing steps were unified, the sentencing procedures were standardized, and the sentencing procedures were ensured. 

Achieve balanced and fair sentencing. In the sentencing of this case, the Zibo City Intermediate People’s Court did not simply rely on trial experience and directly identified the rape of women and rape of under-age girls as "abominable circumstances" and sent sentences within the range of more than ten years of fixed-term imprisonment, life imprisonment or death penalty. 

Instead, it makes full use of quantitative analysis methods to determine the starting point of sentencing by taking adultery of an underage girl once as the basic fact of the crime, and determining the benchmark sentence based on the increase in the number of rapes, etc., and then considering what sentencing circumstances the defendant has, and combining the specific circumstances of the case, according to law.

The fixed term of imprisonment shall be eleven years in prison. That is to say, after taking into account the number of rapes of the defendant in this case, the object of adultery, the consequences of the crime, the special status relationship between the defendant and the victim, etc., it is determined that the defendant belongs to the “evil circumstances” of the rape crime. The qualitative analysis is based on quantitative analysis.

 


 

Refer: Rape Case Li XX




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