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No. 1 Branch of Tianjin Municipal People's Procuratorate v. Liu Dali, Cao Zhenqing, Zhao Dianyong, Et al. (A case about robbing ancient cultural sites, trafficking in cultural relics, and transferring illegally obtained property)
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天津市人民检察院第一分院诉刘大力、曹振庆、赵殿永等盗掘古文化遗址、倒卖文物、转移赃物案
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No. 1 Branch of Tianjin Municipal People’s Procuratorate v. Liu Dali, Cao Zhenqing, Zhao Dianyong, Et al. (A case about robbing ancient cultural sites, trafficking in cultural relics, and transferring illegally obtained property)
(A case about robbing ancient cultural sites, trafficking in cultural relics, and transferring illegally obtained property)
天津市人民检察院第一分院诉刘大力、曹振庆、赵殿永等盗掘古文化遗址、倒卖文物、转移赃物案
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No. 1 Branch of Tianjin Municipal People's Procuratorate v. Liu Dali, Cao Zhenqing, Zhao Dianyong, Et al.
(A case about robbing ancient cultural sites, trafficking in cultural relics, and transferring illegally obtained property) | | 天津市人民检察院第一分院诉刘大力、曹振庆、赵殿永等盗掘古文化遗址、倒卖文物、转移赃物案 |
Judgment Abstract | |
【裁判摘要】 |
Where a person has knowledge that cultural relics were excavated and stolen by other persons and, for the purpose of obtaining illegal profits, helps other persons to contact buyers and facilitates transactions regarding the illegal cultural relics, the crime of concealing or disposing of plunder has not been committed, and the person shall be convicted and punished in accordance with the crime of reselling relics. BASIC FACTS | |
行为人明知文物系他人盗掘所得，为从中牟取非法利益而帮助他人积极联系买主，居中促成非法文物交易的，其行为不构成销赃罪，应以倒卖文物罪定罪处罚。 |
Public Prosecution Organ: No. 1 Branch of Tianjin Municipal People's Procuratorate. | |
公诉机关：天津市人民检察院第一分院。 |
Defendant: Liu Dali, male, 30, farmer, domiciled at Residential Quarters of Jixian Cement Quarry, Chengguan Town, Jixian County, Tianjin City, arrested on January 25, 2006 for the present case. | |
被告人：刘大力。 |
Defendant: Cao Zhenqing, male, 53, teacher of Shandong University, domiciled on Old Campus of Shandong University, Jinan City, Shandong Province, arrested on January 25, 2006 for the present case. | |
被告人：曹振庆。 |
Defendant: Zhao Dianyong, male, 45, teacher of Yanggezhuang Central Primary School, Chengguan Town, Jixian County, Tianjin City, domiciled at Dadaojianying Village, Chengguan Town, Jixian County, Tianjin City, arrested on January 25, 2006 for the present case. | |
被告人：赵殿永，男、45岁，天津市蓟县城关镇杨各庄中心小学教师。 |
Defendant: Zhao Xuehai, male, 53, deputy director of the Office of Local Chronicles Compilation, Jixian County, Tianjin City, domiciled at Residential Quarters of Communist Party School of Jixian County, Guangmingli, Chengguan Town, Jixian County, Tianjin City, arrested on January 25, 2006 for the present case. | |
被告人：赵学海。 |
Defendant: Qi Xiaojun, male, 40, jobless, domiciled at Chenggushi Residential Area, Economic Development Zone, Laiwu City, Shandong Province, arrested on January 25, 2006 for the present case. | |
被告人：亓孝军。 |
Defendant: Han Lianya, male, 38, farmer, domiciled at Dadaojianying Village, Chengguan Town, Jixian County, Tianjin City, arrested on January 25, 2006 for the present case. | |
被告人：韩连亚。 |
Defendant: Cao Wei, male, 25, jobless, domiciled on Old Campus of Shandong University, Jinan City, Shandong Province, arrested on January 25, 2006 for the present case. | |
被告人：曹伟。 |
Defendant: Wang Anmin, male, 36, farmer, domiciled at Houying Village, Houguan Township, Wenxi County, Yuncheng City, Shanxi Province, arrested on January 25, 2006 for the present case. | |
被告人：王安民。 |
Defendant: Shen Xiaohu, male, 39, jobless, domiciled at Podi Village, Xincheng Town, Yuanqu County, Shanxi Province, arrested on January 25, 2006 for the present case. | |
被告人：申小虎。 |
Defendant: Zhou Chang'an, male, 45, farmer, domiciled at Cangdi Village, Dong Town, Wenxi County, Shanxi Province, once sentenced to imprisonment of three years with four-year probation in August, 2003 for the crime of robbing ancient tombs, arrested on January 25, 2006 for the present case. | |
被告人：周长安。 |
Defendant: Zhang Haifeng, female, 30, farmer, domiciled at Residential Quarters of Jixian Cement Quarry, Chengguan Town, Jixian County, Tianjin City, bailed on January 18, 2006 for the present case. | |
被告人：张海峰。 |
Defendant: Shao Wenqiang, male, 22, farmer, domiciled at Huangtupo Village, Chengguan Town, Jixian County, Tianjin City, arrested on January 25, 2006 for the present case. | |
被告人：邵文强。 |
No. 1 Branch of Tianjin Municipal People's Procuratorate lodged a public prosecution before No. 1 Intermediate People's Court of Tianjin City against Liu Dali, Cao Zhenqing, Zhao Dianyong, Zhao Xuehai, Qi Xiaojun, Han Lianya, Cao Wei and Wang Anmin for the crime of robbing ancient cultural sites, against Shen Xiaohu and Zhou Chang'an for the crime of selling illegally obtained property, and against Zhang Haifeng and Shao Wenqiang for the crime of transferring illegally obtained property. | |
天津市人民检察院第一分院以被告人刘大力、曹振庆、赵殿永、赵学海、亓孝军、韩连亚、曹伟、王安民犯盗掘古文化遗址罪，被告人申小虎、周长安犯销售赃物罪，被告人张海峰、邵文强犯转移赃物罪向天津市第一中级人民法院提起公诉。 |
As alleged in the indictment: In June and July 2005, Liu Dali, Cao Zhenqing, Zhao Dianyong, Zhao Xuehai and Han Lianya, to seek huge profits, conspired to steal cultural relics in the underground palace of the White Pagoda Temple in Jixian County, Tianjin City (built in Liao Dynasty under key municipal cultural relic protection). According to their conspiracy, Liu Dali and Zhao Dianyong paid for instruments, Cao Zhenqing provided technical instructions and organized personnel, and Zhao Xuehai provided vehicles and relevant data on the White Pagoda Temple. They planed to steal cultural relics under the White Pagoda Temple by digging a tunnel through a rented house near the White Pagoda Temple. Afterwards, Cao Zhenqing hired Qi Xiaojun, Wang Anmin and other persons for this purpose, Han Lianya and Liu Dali purchased such instruments as water pump, blower, spades and spotlight. During the robbery, Liu Dali and Cao Zhenqing gave instructions, Zhao Dianyong and Han Lianya provided meals and kept watch, and Qi Xiaojun and Wang Anmin performed excavation with other employees. They first used spades and other tools to dig a shaft in the yard of a bungalow rented by Liu Dali (located at Xi'nanyu Village, Chengguan Town, Jixian County, Tianjin City), and then a horizontal tunnel to the underground palace of the White Pagoda Temple. During the process, Cao Wei checked several times whether the excavation noises could be heard around the White Pagoda Temple. After the tunnel was through, they ruined the foundation of the White Pagoda Temple, entered the underground palace, stole a large number of cultural relics such as Nirvana stone sculpture, metal sarira-stupa, Buddha statue, silver lotus blossom, jade pendant and vajra, and hid them in the house of a relative of Liu Dali. For easy disposal, Cao Wei took photos of these cultural relics with a digital camera. In August and September 2005, Liu Dali and others contacted Shen Xiaohu and Zhou Chang'an for disposal of these cultural relics. Knowing that the cultural relics were stolen, Shen Xiaohu and Zhou Chang'an contacted buyers. Through them, Liu Dali sold the above cultural relics to Chen (at large) for 2.2 million yuan, which was shared by Liu Dali, Cao Zhenqing, Zhao Dianyong, Zhao Xuehai, Qi Xiaojun, Han Lianya, Cao Wei, Wang Anmin, et al. On January 4, 2006, after Liu Dali was captured, Zhang Haifeng, wife of Liu Dali, knowing that the property hidden in her house was illegally obtained by Liu Dali, transferred such property together with Shao Wenqiang. In sum, the acts of Liu Dali, Cao Zhenqing, Zhao Dianyong, Zhao Xuehai, Qi Xiaojun, Han Lianya, Cao Wei and Wang Anmin violated the provisions of Article 328 of the Criminal Law of the People's Republic of China (hereinafter referred to as the “Criminal Law”), and they should be prosecuted for the crime of robbing ancient cultural sites. The acts of Shen Xiaohu and Zhou Chang'an violated the provisions of Article 312 of the Criminal Law, and they should be prosecuted for the crime of selling illegally obtained property. The acts of Zhang Haifeng and Shao Wenqiang constituted the crime of transferring illegally obtained property, and they should be prosecuted according to law. Zhou Chang'an committed a new crime during his probation period, so the provisions of Article 77 of the Criminal Law should also apply. The accused should be punished according to law. | |
起诉书指控：2005年6、7月间，被告人刘大力、曹振庆、赵殿永、赵学海、韩连亚为牟取暴利，密谋盗窃天津市蓟县白塔寺 (建于辽代，市级重点文物保护单位)地宫内的文物。经商定由刘大力、赵殿永出资购置作案工具，曹振庆负责提供技术指导并组织人员，赵学海提供汽车及白塔寺的相关资料，采取在白塔寺附近租房挖洞的方式盗窃白塔下的文物。此后，曹振庆找来被告人亓孝军、王安民等盗掘人员，韩连亚和刘大力购置了水泵、鼓风机、铁锹、照明灯等作案工具。盗掘实施过程中，由刘大力、曹振庆负责指挥，赵殿永、韩连亚负责提供饮食并望风，亓孝军、王安民伙同其他被雇用的盗掘人员具体实施挖掘，先用铁锹等工具在刘大力事先承租的、位于天津市蓟县城关镇西南隅村的一套平房院中开挖竖井，再挖掘由此通向白塔地宫的水平地道。盗掘期间，被告人曹伟数次到白塔周围探听能否听到地下挖洞的声音。地道挖通后，上述被告人将白塔地基破坏后进人地宫，窃取石雕涅槃像、金属制舍利塔、佛坐像、银莲花座、玉坠、金刚杵等大量文物，并将所盗文物放在刘大力亲属家中藏匿。窃得上述文物后，曹伟用数码相机逐件拍照以利变卖。2005年8、9月间，刘大力等人欲将上述文物变卖，找到被告人申小虎、周长安，申小虎、周长安明知刘大力手中文物系盗窃所得，仍为其联系买主。经申小虎、周长安介绍，刘大力将上述文物卖给陈某(现在逃)，得赃款220万元，由刘大力、曹振庆、赵殿永、赵学海、亓孝军、韩连亚、曹伟、王安民等人瓜分。2006年1月4日，公安机关将刘大力抓获后，刘大力之妻、被告人张海峰明知家中藏匿的物品系刘大力犯罪所得，仍伙同被告人邵文强将赃物转移。综上，刘大力、曹振庆、赵殿永、赵学海、亓孝军、韩连亚、曹伟、王安民的行为均已触犯《中华人民共和国刑法》(以下简称刑法)第三百二十八条之规定，应当以盗掘古文化遗址罪追究其刑事责任；申小虎、周长安的行为均已触犯刑法第三百一十二条 |
Liu Dali, Zhao Dianyong, Zhao Xuehai, Qi Xiaojun, Han Lianya, Cao Wei, Wang Anmin, Shen Xiaohu, Zhou Chang'an, Zhang Haifeng and Shao Wenqiang admitted to the crimes alleged by the public prosecution organ. | |
被告人刘大力、赵殿永、赵学海、亓孝军、韩连亚、曹伟、王安民、申小虎、周长安、张海峰、邵文强均承认公诉机关指控的犯罪事实。 |
Cao Zhenqing pleaded that he came to Jixian County at the invitation of Zhao Xuehai for visiting old classmates rather than stealing cultural relics in the White Pagoda Temple. His defender argued that Cao Zhenqing was an accessory eligible for a lighter punishment according to law. | |
被告人曹振庆辩称：本人来蓟县是应赵学海的邀请看望老同学，不是为盗窃白塔寺的文物。其辩护人认为曹振庆系从犯，请求依法从轻处罚。 |
Liu Dali and his defender pleaded that Liu Dali did not organize personnel, gather technical data and funds, and give instructions in the process of the robbery, and requested the court to impose a lighter punishment on Liu Dali. | |
被告人刘大力及其辩护人辩称：盗掘人员的纠集和组织、技术资料和经费的筹集、盗掘过程的指挥均不是刘大力所为，请求从轻处罚。 |
Zhao Dianyong and his defender pleaded that: since Zhao Dianyong was not involved in the premeditation, provided funds only out of greed, was not a principal in the present case and made true confession, he was eligible for a lighter punishment. | |
被告人赵殿永及其辩护人辩称：赵殿永事前没有参与预谋，仅是为贪利而出资，不是主犯，且认罪态度较好，请求从轻处罚。 |
Zhao Xuehai and his defender pleaded that: since Zhao Xuehai was not involved in the premeditation and did not participate in the specific criminal activities such as casing the crime scene, renting a house, excavating the site and sharing the illegally obtained property, he was an accessory eligible for a lighter punishment. | |
被告人赵学海及其辩护人辩称：赵学海没有参与预谋，亦未参与选择作案现场、租房、实施盗掘和分赃等具体犯罪行为，系从犯，请求从轻处罚。 |
Han Lianya and his defender pleaded that: Han Lianya participated in the crime under the instructions of Zhao Dianyong, was an accessory in the joint crime and made true confession, eligible for a lighter punishment. | |
被告人韩连亚及其辩护人辩称：韩连亚是在赵殿永的纠集下参与犯罪，在共同犯罪中起辅助作用，系从犯，且认罪态度较好，请求从轻处罚。 |
Cao Wei and his defender pleaded that: Cao Wei did not know the conspiracy of robbing the White Pagoda Temple before his arrival at Jixian County, did not participate in the robbery, and had no prior knowledge of the cultural relics to be photographed. | |
被告人曹伟及其辩护人辩称：曹伟到蓟县之前不知道盗掘白塔寺一事，且到蓟县后没有动手参与盗掘；曹伟在给涉案文物拍照之前，并不知道所拍照的是被盗文物。 |
Zhou Chang'an and his defender pleaded that: Zhou Chang'an was brought in the crime by others, only played an intermediary role for the transaction, and did not know the significant value of the cultural relics at issue. After being taken into custody, he assisted the public security organ in capturing Shen Xiao, a meritorious act making him eligible for a lighter punishment. | |
被告人周长安及其辩护人辩称：周长安系被纠集参与犯罪，在本案中仅起交易介绍作用，且不明知涉案文物的重要价值。此外，周长安归案后协助抓获同案被告人申小虎，有立功表现，请求从轻处罚。 |
In the trial at first instance, the No. 1 Intermediate People's Court of Tianjin City found that: | |
天津市第一中级人民法院一审查明： |
At the end of 2004, Liu Dali, for seeking illegal profits, came up with the idea of stealing cultural relics in the underground palace of the White Pagoda Temple in Jixian County, Tianjin City, and in December of the same year, rented from Zhao Jiang a bungalow with a yard located at Xinanyu Village, Chengguan Town, Jixian County, just outside the west wall of the White Pagoda Temple. In June and July 2005, Liu Dali told his idea of stealing cultural relics in the underground palace of the White Pagoda Temple to Zhao Xuehai and Zhao Dianyong, who agreed to the idea, and they also contacted Cao Zhenqing to jointly make a criminal plan. According to their plan, Liu Dali and Zhao Dianyong paid for instruments, Cao Zhenqing provided technical instructions and organized personnel, and Zhao Xuehai provided vehicles and data on the White Pagoda Temple. Later, Cao Zhenqing gathered Qi Xiaojun, Wang Anmin and others for this purpose, and Zhao Dianyong brought Han Lianya in the plan and purchased instruments with Liu Dali such as water pump, blower, spade and spotlight. Then, Qi Xiaojun, Wang Anmin and other persons dug a shaft in the yard of the bungalow rented by Liu Dali and a horizontal tunnel to the underground palace of the White Pagoda Temple. During excavation, Liu Dali directed on the scene, Cao Zhenqing provided technical instructions, Zhao Dianyong and Han Lianya delivered meals and kept watch, and Cao Wei checked alone or with Zhao Dianyong many times whether the excavation noises could be heard near the White Pagoda Temple. In early August of the same year, the aforesaid defendants stole a large number of cultural relics from the underground palace of the White Pagoda Temple, such as Nirvana stone sculptures, metal sarira-stupas, Buddha statues, white glazed porcelain standing lion, bronze Buddhist ritual instruments, porcelains, crystals, jades and beads of Liao Dynasty, and as directed by Liu Dali, such cultural relics were transported to the house of a relative of Liu Dali by vehicles provided by Zhao Xuehai for hiding. For easy disposal, Cao Zhenqing proposed to purchase a digital camera to photograph these cultural relics. Cao Wei took photos of these cultural relics with the digital camera purchased by Zhao Dianyong.
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2004年底，被告人刘大力为牟取非法利益，产生盗掘天津市蓟县白塔寺地宫内文物之念，并于同年12月在白塔寺西墙外承租了蓟县城关镇西南隅村赵江家带小院的平房。2005年6、7月间，刘大力将盗掘白塔寺地宫内文物的想法告知被告人赵学海、赵殿永，赵学海、赵殿永表示同意，而后联系了被告人曹振庆，共同密谋犯罪方案，商定由刘大力、赵殿永出资购置作案工具，曹振庆负责技术指导、组织人员，赵学海提供汽车及白塔寺的相关资料。之后，曹振庆纠集了被告人亓孝军、王安民等数名盗掘人员，赵殿永纠集被告人韩连亚并伙同刘大力一起购置了水泵、鼓风机、铁锹、照明灯等作案工具。随后，亓孝军、王安民伙同其他盗掘人员，在刘大力事先租赁的平房院内先挖竖井，再挖掘由此通向白塔寺地宫的水平地道。挖掘期间，刘大力在现场进行指挥，曹振庆提供技术指导，赵殿永、韩连亚负责送饭并望风，被告人曹伟则多次单独或伙同赵殿永到白塔寺附近探听能否听到挖洞的声音。同年8月上旬，上述被告人从白塔寺地宫内盗出辽代石雕涅槃像、金属舍利塔、佛坐像、白釉瓷立狮、青铜法器、瓷器及水晶玉石、珠子等大量文物，并在刘大力的指挥下，使用赵学海提供的车辆将所盗文物运送到刘大力的亲属家藏匿。为便于变卖，曹振庆提出购买数码相机对上述文物进行拍照。之后，曹伟使用赵殿永购买的数码相机对上述文物进行拍摄。
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