Publication number: Fa Fa [2065438+00] No.7.
Higher people's courts, people's procuratorates, public security departments (bureaus) and judicial departments (bureaus) of all provinces, autonomous regions and municipalities directly under the Central Government, military courts and military procuratorates of the People's Liberation Army, Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region, People's Procuratorate, Public Security Bureau and Judicial Bureau of Xinjiang Production and Construction Corps:
In order to strengthen the judicial protection of the legitimate rights and interests of women and children and punish the crime of abducting and selling women and children according to law, the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Punishing the Crime of Abducting and Selling Women and Children according to Law are hereby printed and distributed to you, please implement them conscientiously.
The Supreme People's Court the Supreme People's Procuratorate Ministry of Public Security Ministry of Justice
20 10 March 15
In order to strengthen the judicial protection of the legitimate rights and interests of women and children and implement the China Action Plan against Trafficking in Women and Children (2008-20 12), the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice put forward the following opinions on punishing the crime of trafficking in women and children according to law:
I. General requirements
1. Intensify the crackdown according to law to ensure social harmony and stability. Since 199 1, a nationwide special campaign has been launched to crack down on the crime of abducting and selling women and children, and a large number of cases of abducting and selling women and children have been detected and handled according to law, and criminals have been severely punished according to law. In 2008, the national courts concluded 1353 cases of abducting and selling women and children, an increase of 9.95438+0% over 2007; 2 16 1 person, up 1 1.05% year-on-year. Among them, 13 19 criminals sentenced to fixed-term imprisonment of more than five years, life imprisonment to death, increased by 10.438+0. In 2009, the national courts concluded 1636 criminal cases of abducting and selling women and children, an increase of 20.9% over 2008; 24 13 criminals were given legally effective sentences, up 1 1.7% year-on-year, among which 1475 criminals were sentenced to fixed-term imprisonment of more than five years, up/1.83% year-on-year.
However, we must be soberly aware that due to various reasons, the rising trend of the crime of abducting and selling women and children in some areas has not been effectively curbed. This kind of crime seriously violates the personal rights of abducted women and children, leading to the separation of many families and even the breakdown of families, which seriously endangers social harmony and stability. The people's courts, people's procuratorates, public security organs and judicial administrative organs should proceed from the overall situation of safeguarding the vital interests of the people and ensuring social harmony and stability, further intensify the crackdown according to law, and resolutely and effectively curb the rising trend of the crime of abducting and selling women and children.
2. Pay attention to cooperation and form effective synergy. The people's courts, people's procuratorates and public security organs shall perform their respective duties, support each other and cooperate with each other, improve the quality and efficiency of handling cases, and ensure the unity of legal and social effects in handling cases; The judicial administrative organ shall earnestly do a good job in legal aid for relevant cases and safeguard the legitimate rights and interests of the parties. Local judicial organs should unify their thinking and understanding, further strengthen regional coordination and cooperation with the departments involved, and strive to form an overall joint force to severely punish the crime of abducting and selling women and children according to law.
3. Correctly implement policies to ensure the effectiveness of handling cases. The crime of abducting and selling women and children often involves many people and links. According to the general principles of criminal law, if the criminal policy of combining leniency with severity is suitable for the crime and punishment, the position, function and personal danger of the criminal in the same crime should be comprehensively considered, and the sentence should be accurately measured according to law. The ringleaders, organizers, repeat participants, kidnappers or recidivists of criminal groups should be severely cracked down and resolutely punished according to law. If the circumstances of the crime are serious and should be sentenced to severe punishment or even death according to law, it should be resolutely sentenced according to law. Attention should be paid to eradicating the "buyer's market" and curbing the crime of abducting and selling women and children from the source. Whoever buys abducted women and children and should be investigated for criminal responsibility according to law shall be resolutely investigated according to law. At the same time, for those who have lenient punishment circumstances, we should be lenient according to law on the basis of comprehensive consideration of the facts, nature, circumstances and degree of harm of the crime, divide and disintegrate the crime, and urge the criminals to repent and turn over a new leaf.
Two. jurisdiction
4. Criminal cases of abducting and selling women and children shall be under the jurisdiction of judicial organs in the place where the crime is committed. The crime sites of abducting and selling women and children include abduction sites, transit sites, abduction sites and places where trafficking activities pass. If it is more appropriate to be under the jurisdiction of the judicial organ where the criminal suspect or defendant resides, it may be under the jurisdiction of the judicial organ where the criminal suspect or defendant resides.
5. Where the judicial organs in several regions have jurisdiction, it shall generally be under the jurisdiction of the first judicial organ to accept it. If the number of criminal suspects, defendants or abducted women and children is large and involves multiple crime sites, they may be transferred to the judicial organs of the main crime site or the residence of the main criminal suspect or defendant for jurisdiction.
6. A relatively fixed number of criminal suspects and defendants commit certain criminal acts in abduction, transit and abduction. If the geographical span of the crime is so large that it is difficult to centralize the jurisdiction of the whole case, the judicial organs of the abduction, transit and kidnapping places may exercise jurisdiction over the abduction, transit and kidnapping crimes committed by different criminals respectively.
7. Where there is a dispute over jurisdiction, both parties to the dispute shall settle it through consultation as soon as possible within the statutory time limit in line with the principles of facilitating the rapid identification of criminal facts, the timely rescue of abducted women and children and the prosecution and trial; If negotiation fails, it shall be submitted to the higher authorities of * * * for jurisdiction.
If there is a dispute over the jurisdiction of a case under investigation, the organ accepting the case shall not stop the investigation before the superior organ makes a decision on jurisdiction.
Third, file a case.
8. In any of the following circumstances, the public security organ shall immediately file a case and carry out investigation work quickly if it meets the jurisdiction conditions after examination:
(1) Receiving reports, complaints or reports of abducting and selling women and children;
(2) Receiving a report that a child is missing or a woman who has reached the age of 14 and under 18 is missing;
(3) Having received a report that a woman who has reached the age of 18 is missing or may be trafficked;
(four) found that vagrants and beggars may be trafficked;
(five) found to have bought abducted women and children, should be investigated for criminal responsibility according to law;
(six) other circumstances that indicate that the crime of abducting and selling women and children may occur.
9. When a public security organ finds a criminal suspect or a abducted woman or child in the course of its work, it shall take emergency measures first, regardless of whether the case is under its jurisdiction. After examination, if it belongs to its own jurisdiction, it shall be put on file for investigation according to law; If it does not belong to its own jurisdiction, it shall be promptly transferred to the public security organ with jurisdiction.
10. the people's procuratorate should strengthen the supervision over the filing of criminal cases of abducting and selling women and children, and ensure that the case must be established and investigated.
Fourth, evidence.
1 1. The public security organ shall, in accordance with legal procedures, comprehensively collect all kinds of evidence that can prove the criminal suspect's guilt or innocence and the seriousness of the crime.
Special attention should be paid to the collection and fixation of objective evidence such as currency deposit and withdrawal vouchers, telephone lists of criminal suspects, tickets to and from relevant places by means of transportation, DNA identification conclusions of abducted children, relevant surveillance videos and electronic information.
Forensic work should be timely to prevent the passage of time, which is difficult to make up.
12. Public security organs should attach great importance to and further strengthen the construction and improvement of DNA database. Parents of missing children, or children suspected of being trafficked, should collect blood samples for inspection in time, and provide scientific basis for finding crimes and helping trafficked children return to their families in time through the national DNA database.
13. The case-handling units in the areas involved in the crime of abducting and selling women and children should strengthen cooperation and cooperation. Need to investigate and collect evidence in different places, the relevant judicial organs should cooperate closely; Need further supplementary verification, should actively support.
Qualitative analysis of verb (abbreviation of verb)
14. Criminal suspects and defendants are involved in many aspects of the crime of abducting and selling women and children. Only when the criminal facts of some links are clearly verified and the evidence is true and sufficient can the criminal facts of this link be determined according to law.
15. Whoever robs a child for the purpose of selling, or picks up a child and sells it, which conforms to the provisions of the second paragraph of Article 240th of the Criminal Law, shall be punished as crime of trafficking in children.
Whoever abducts and sells infants or children for the purpose of raising them shall be punished as crime of trafficking in children.
16. Whoever sells his own children for the purpose of making illegal profits shall be punished as the crime of abducting and selling women and children.
17. It is necessary to strictly distinguish between selling one's own children in the name of adoption and folk adoption. The key to the distinction lies in whether the actor has the purpose of illegal profit. We should comprehensively judge whether the actor has the purpose of making illegal profits by examining the background and reasons for "sending" his children to him, whether to collect and how much money, whether the other party has the purpose of raising and whether he has the ability to raise them.
Under any of the following circumstances, it can be considered as selling one's own children, and it should be punished as the crime of abducting and selling women and children:
(1) Selling a child after giving birth as a means of illegal profit;
(2) "giving" children to others for money, knowing that the other party has no purpose of raising, or whether the other party has a purpose of raising;
(3) "giving" a child to another person for the purpose of collecting a huge sum of money that obviously does not belong to "nutrition fee" or "thank you fee";
(4) Other "adoption" behaviors that can reflect the actor's illegal profit-making purpose.
It is not for the purpose of illegal profit, but because of the influence of life difficulties or son preference, privately giving children who can't live independently to others for raising, including collecting a small amount of "nutrition fee" and "thank you fee", which belongs to folk adoption and cannot be punished as crime of trafficking in women and children. If children's physical and mental health is seriously damaged due to unauthorized adoption, or if there are other bad circumstances that meet the characteristics of abandonment, they can be punished for abandonment; If the circumstances are obviously minor and the harm is not great, the public security organ may give administrative punishment according to law.
18. Whoever abducts and sells women to relevant places and forces the abducted women to engage in prostitution or other pornographic services shall be punished as the crime of abducting and selling women.
If the managers of the relevant places collude with criminals who abduct and sell women in advance, they shall be punished as * * * of the crime of abducting and selling women; If it constitutes the crime of abducting and selling women and organizing prostitution at the same time, it shall be punished as a felony.
19. Employees of medical institutions, social welfare institutions and other units who sell their children treated, cared for and raised to others for the purpose of illegal profit shall be punished as crime of trafficking in children.
20. Whoever knowingly buys abducted women and children in any of the following circumstances shall be punished as the crime of buying abducted women and children; If it constitutes other crimes at the same time, it shall be punished in accordance with the provisions on combined punishment for several crimes:
(1) After buying a trafficked woman, it prevents her from returning to her original place of residence against her will;
(2) Obstructing the rescue of women and children who have been bought;
(3) Illegally depriving or restricting the personal freedom of the bought women and children, if the circumstances are serious, or raping, injuring, insulting or maltreating the bought women and children;
(four) the women and children who were bought were bought after being rescued, or a number of abducted women and children were bought;
(5) Organizing, tricking or forcing bribed women and children to engage in begging, servitude, theft, pyramid selling, prostitution and other illegal and criminal activities;
(6) Causing serious consequences such as serious injury or death of the woman, child or their relatives who have been bought;
(7) Other serious circumstances.
Before being prosecuted, take the initiative to report to the public security organ or report to the relevant units that they are willing to let the bought women return to their original residence, or send the bought children back to their families, or hand over the bought women and children to public security, civil affairs, women's federations and other organs and organizations. If there are no other serious circumstances, criminal responsibility may not be investigated.
Six, * * * with the crime
2 1. Whoever knowingly provides a health certificate, birth certificate or other assistance to a abducted woman or child shall be punished as a * * offender of the crime of abducting and trafficking a woman or child.
Whoever knowingly buys abducted women and children and still provides them with the household registration certificate, birth certificate or other assistance of abducted women and children shall be punished as the * * * offender of the crime of buying abducted women and children, unless the buyer has not been investigated for criminal responsibility.
Whether it is "knowing" should be comprehensively judged according to the testimony of witnesses, the confessions and excuses of criminal suspects, defendants and their co-defendants, combined with the number of people who provide help, whether it obviously violates relevant rules and regulations and work processes.
22. Whoever knowingly introduces another person as a "trafficker" of abducting and selling children through an intermediary by taking advantage of the convenience of engaging in medical care, welfare assistance, etc., shall be punished as a * * * offender in crime of trafficking in children.
23. For criminals who commit the crime of abducting and selling women and children, the principal and accessory should be accurately distinguished according to the division of labor, status and role of the defendants in the same crime, the number and times of people involved in abducting and selling, and the amount of stolen goods.
Those who play a major role in organizing, leading and directing one or more criminal links of abducting and selling women and children, or actively participate in committing such criminal acts as abducting, kidnapping, buying, selling, transporting and transferring women and children, shall be identified as the principal offenders.
Those who only provide information or relevant supporting documents of abducted women and children, or make intermediary introductions, which play an auxiliary or secondary role and have no or little profit can generally be identified as accomplices.
If there is no obvious difference in the position and role of each defendant in the same crime, there is no need to distinguish between the principal and the accessory.
Seven, one crime and several crimes
24. Whoever abducts and sells women and children, rapes the abducted women and children, or induces or forces the abducted women and children to engage in prostitution shall be punished as the crime of abducting and selling women and children.
25. Whoever abducts and sells women and children and intentionally kills, injures, molests or insults the abducted women and children, which constitutes other crimes, shall be punished in accordance with the provisions on combined punishment for several crimes.
26. Whoever abducts or buys abducted women and children, or organizes or instigates abducted women and children to commit crimes, shall be punished with the crime of abducting and selling women and children or the crime of buying abducted women and children in combination with the crime of organizing and instigating.
27. Whoever abducts and buys abducted women and children, or organizes or instigates abducted and bought underage women and children to commit theft, fraud, robbery, extortion and other activities in violation of public security management shall be punished for the crime of abducting and selling women and children or buying abducted women and children, and organizing minors to commit activities in violation of public security management.
Eight. Application of penalty
28. If the ringleader of a criminal group that abducts and sells women and children, the principal offender or recidivist with serious circumstances, the circumstances of stealing infants and forcibly robbing children are serious, and the circumstances of abducting and selling women and children abroad are serious, and women and children are abducted and sold many times, resulting in casualties or other serious circumstances, they shall be severely punished according to law; If the circumstances are especially serious, he shall be sentenced to death according to law.
Abduction of women and children, and intentional killing, injury, indecency, insult and other acts of abducted women and children, and the decision of combined punishment for several crimes should be strictly reflected in accordance with the law.
29. For criminals who abduct and sell women and children, attention should be paid to the application of property punishment according to law, and enforcement should be strengthened to strengthen the special and general preventive effects of punishment.
30. Whoever commits the crime of buying abducted women and children, engages in illegal and criminal activities against the bought women and children or uses them as profit-making tools, shall be severely punished according to law.
Those who buy abducted women and children, have not abused or harmed the bought women and children, or have formed a stable marriage and family relationship with them, but should still be investigated for criminal responsibility according to law, should generally be given a lighter punishment; Those who meet the conditions of probation may apply probation according to law.
Buying abducted women and children, if the crime is minor, can be exempted from criminal punishment according to law.
3 1. If several family members or relatives and friends * * * are involved in selling their children, or "the buyer is a wife" or "the buyer is a son" constitutes the crime of buying abducted women and children, the criminal responsibility of the person with heavier guilt should be investigated according to law on the basis of comprehensive investigation of the intentional initiation of the crime and the role played by various actors in the crime. Other circumstances are obviously minor and harmless, which are not considered as crimes, and criminal responsibility shall not be investigated according to law; When necessary, the public security organ may impose administrative punishment.
32. Those who have legal lenient punishment circumstances such as accomplice, surrender and meritorious service shall be given a lighter, mitigated or exempted punishment according to law.
If the abducted women and children have not committed any illegal or criminal acts such as destruction or abuse, or can help rescue the abducted women and children, or have other discretionary circumstances of lighter punishment, they may be given a lighter punishment as appropriate according to law.
33. If there are circumstances of heavier or lenient punishment at the same time, the defendant shall be given a heavier or lenient punishment on the basis of comprehensive investigation of the means of abducting and trafficking women and children, the number of abducting and trafficking women and children or buying abducted women and children, the harmful consequences, the subjective malignancy and personal danger of the defendant, and the local crimes and social security situation.
Nine, foreign-related crimes
34. It is necessary to further intensify the crackdown on transnational cross-border trafficking in women and children. Strengthen bilateral or multilateral "anti-trafficking" international exchanges and cooperation, and strengthen the rescue of women and children who have been trafficked across borders and borders. In accordance with the provisions of international treaties concluded or acceded to by China, we will actively exercise our rights, fulfill our obligations, request or provide various judicial assistance in time, and effectively curb transnational and cross-border trafficking in women and children.