1. Fee

(1) Crimes can be divided into two categories: one is the description of the basic characteristics (constitutive requirements) of specific crimes (basic crimes), and the other is the description of the applicable conditions for aggravating or mitigating statutory punishment (aggravating or mitigating crimes). The criminal law stipulates the basic charges of any crime, but not all crimes have aggravated or mitigated charges.

(2) The description of basic charges in the specific provisions can be divided into four situations, namely, simple charges, statement charges, quoted charges and blank charges (see charges).

Simple crime: only write the name of the crime, without describing the characteristics of the crime in detail. Features are: simple generalization, avoiding triviality. For example, article 232 of the criminal law? Intentional murder? , article 233? Negligence causes death? Wait, it's all simple crimes.

State the crime: explain the specific characteristics of the crime in detail. Features are: clear elements, avoiding ambiguity. For example, Article 305 of the Criminal Law stipulates that: in criminal proceedings, witnesses, expert witnesses, recorders and translators who intentionally make false proofs, expert appraisals, records and translations of important cases with the intention of framing others or concealing criminal evidence shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

Cite charges: cite other terms. The characteristics are: the provisions are concise and avoid repetition. For example, Article 124, paragraph 1 of the Criminal Law stipulates the charges and statutory penalties for the crime of destroying radio and television facilities and public telecommunication facilities, and the second paragraph stipulates that whoever negligently commits the crime mentioned in the preceding paragraph shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. This clause refers to article 1 of the indictment to explain and determine the indictment for the crime of negligent destruction of radio and television facilities and public telecommunications facilities.

Blank indictment: it does not specify the specific characteristics of the crime, but points out that reference must be made to other laws and decrees. It is characterized by referring to other laws and regulations and avoiding complicated expressions. There is no typical blank crime in the specific provisions of our criminal law.

(3) Some provisions of the specific provisions of the Criminal Law stipulate more than two kinds of acts, and some provisions have several basic charges for a crime, such as Article 347. Smuggling, trafficking, transporting and manufacturing drugs, regardless of the quantity, should be investigated for criminal responsibility and punished.

There are also basic crimes of combined punishment for several crimes. For example, Article 247 If a judicial officer extorts a confession from a criminal suspect or defendant by torture or forces a witness to testify, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

(4) Aggravation and mitigation are divided into aggravation and mitigation.

Criminal law has three provisions on aggravated crime:

(1) First, establish special clauses to aggravate crimes and statutory penalties, such as Article 1 19:

Article 1 17 Crime of destroying traffic facilities. Whoever sabotages tracks, bridges, tunnels, highways, airports, navigation channels, lighthouses, signs or engages in other sabotage activities, which is enough to cause the danger of overturning or destroying trains, cars, trams, ships and aircraft, but has not caused serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

Article 1 19: Crime of destroying vehicles, traffic facilities, power equipment and inflammable and explosive equipment. Whoever destroys means of transport, traffic facilities, power equipment, gas equipment and inflammable and explosive equipment, thus causing serious consequences, shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.

(2) the second is to set up a special fund to aggravate crimes and statutory penalties, such as the second paragraph of Article 257:

Crime of violent interference with freedom of marriage Whoever violently interferes with the freedom of marriage of others shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. Whoever commits the crime mentioned in the preceding paragraph and causes death shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years. The first crime will only be dealt with if it is told.

(3) Third, after the basic crime and the statutory punishment, the aggravated crime and the statutory punishment are stipulated in the same paragraph, such as Article 254.

Crime of Retaliation and Frame-up Any functionary of a state organ who abuses his power and engages in malpractices for personal gain and retaliates against a complainant, complainant, critic or informer shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years.

The provisions on mitigating crime in the specific provisions of criminal law are generally set in the same provision that stipulates basic crime and statutory punishment, and there is no special article or special fund for mitigating crime. What is the content of mitigating crime? The plot is lighter? .

2. expenses

(1) charges and specific charges. Class charges are the general name of a certain kind of crime. * * * has ten kinds of crimes; Specific charges are the names of various specific charges. Every specific crime has its definition, composition and legal punishment.

(2) Individual charges and selective charges, and summary charges.

A single charge refers to a single crime, which can only reflect a criminal act and cannot be decomposed and used. For example, intentional homicide, illegal logging and so on.

Selective crime means that the specific content of the constitutive elements is complex, reflecting a variety of criminal acts, which can be universal or disassembled. Like crime of trafficking in women and children. The characteristic of crime selection is that it can contain multiple specific crimes and avoid the complexity of specific crimes.

The summary of charges means that the specific content of its constituent elements is complex, reflecting a variety of criminal acts, but it can only be used in general, and can not be decomposed into separate charges. For example, the crime of credit card fraud includes four acts: using forged credit cards or using credit cards fraudulently obtained with false identification, using invalid credit cards, fraudulently using other people's credit cards, and maliciously overdrawing. Summary crime is a kind of crime between single crime and selective crime. From the point of view that the charge itself has no choice, it has the characteristics of a single charge; But it contains many kinds of behaviors, only one of which constitutes a crime, so it has the characteristics of choosing one crime.

3. Statutory punishment

Statutory punishment and types of punishment are not equivalent concepts. Statutory punishment can include only one kind of punishment or several kinds of punishment. For example, there are two statutory penalties for intentional homicide. What is the first statutory penalty? Death penalty, life imprisonment or 10 years imprisonment? , which contains three kinds of punishment, but it should be considered as only a statutory punishment. Therefore, when this statutory penalty is applied to mitigate punishment, only the penalty of less than 10 can be imposed.

(1) Absolute statutory punishment: For example, Article 12 1 of the Criminal Law stipulates: Whoever hijacks an aircraft by violence, coercion or other means shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment; Anyone who causes serious injury or death to people or serious damage to aircraft shall be sentenced to death. ? Lawmakers believe that the crime of hijacking aircraft and the above results should and can only be sentenced to death.

(2) Relatively definite statutory punishment: The specific provisions of China's criminal law usually stipulate relatively definite statutory punishment, which is conducive to the practice of the principle of suiting crime to punishment. (1) the provisions of the maximum legal punishment. For example, Article 433 of the Criminal Law 1: Whoever spreads rumors to confuse people and shake the morale of the army in wartime shall be sentenced to fixed-term imprisonment of not more than three years. (2) Statutory minimum punishment. For example, Article 3 17 of the Criminal Law stipulates that the ringleaders who organize prison break and those who actively participate in it shall be sentenced to fixed-term imprisonment of more than five years. (3) the provisions of the maximum and minimum statutory penalties. For example, Article 1 18 of the Criminal Law stipulates that whoever destroys electricity, gas or other inflammable and explosive equipment and endangers public safety, but has not caused serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. The above three relatively certain statutory penalties are mainly for fixed-term imprisonment. Because there are no penalties for death penalty and life imprisonment, the time limit for criminal detention, control and deprivation of political rights is relatively short, so it is not necessary to specify them in detail in the specific provisions, and it can be judged directly according to the time limit stipulated in the general provisions of the Criminal Law. (4) providing for more than two principal punishments or statutory punishments providing for more than two principal punishments and supplementary punishments. For example, the first paragraph of Article 275 of the Criminal Law stipulates that whoever intentionally destroys public or private property in a large amount or has other serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine. This article stipulates two main punishments and one supplementary punishment, and the court can choose one of these three punishments when sentencing.

(3) Floating statutory punishment: Article 227 of the Criminal Law stipulates that those who commit the crime of reselling ship tickets and ship tickets shall be fined from/kloc-0 to 5 times the amount of the ship tickets. Floating statutory punishment has the following characteristics: ① It is limited to fine punishment, which is obviously because the amount of fine punishment can be determined according to some factual standard stipulated in criminal law. ② It is only applicable to economic crimes and property crimes, and it is difficult or even impossible to stipulate floating statutory punishment for other crimes. ③ The specific range (quantity) of penalty (fine) should be determined according to some facts of the case.

The difference between floating statutory punishment and relatively certain statutory punishment: when the criminal law stipulates relatively certain statutory punishment, people can know the specific punishment range in advance regardless of whether the case occurs or not; When the criminal law stipulates floating statutory punishment, only by finding out the specific facts stipulated in the criminal law can we know the specific punishment range.

The difference between statutory punishment and declared punishment: statutory punishment is determined by the legislature when formulating criminal law, and declared punishment is determined by the judicial organs when trying specific cases; Statutory punishment has optional kinds and degrees of punishment, while declared punishment can only be specific kinds and degrees of punishment. However, the announced punishment must be based on the statutory punishment, even if the punishment is lighter, heavier or mitigated. It can be seen that statutory punishment is a legislative provision, focusing on the * * * nature of crime. Declared punishment is a judicial application, focusing on specific criminal cases and the particularity of crimes.