|
|
|
Effective Implementation of the Criminal Policy of Combining Leniency with Severity in the Trial of Cases of Intentional Homicide, Intentional Injury, and Crime Committed by an Organization of a Gangland Nature
[Effective]
|
|
在审理故意杀人、伤害及黑社会性质组织犯罪案件中切实贯彻宽严相济刑事政策
[现行有效]
|
|
|
|
|
|
|
|
|
|
|
|
| Effective Implementation of the Criminal Policy of Combining Leniency with Severity in the Trial of Cases of Intentional Homicide, Intentional Injury, and Crime Committed by an Organization of a Gangland Nature | | 在审理故意杀人、伤害及黑社会性质组织犯罪案件中切实贯彻宽严相济刑事政策 |
| (No. 3 Criminal Tribunal of the Supreme People's Court on April 14, 2010) | | （最高人民法院刑三庭 2010年4月14日） |
| The Several Opinions of the Supreme People's Court on Implementing the Criminal Policy of Combining Leniency with Severity (hereinafter referred to as the “Opinions”) as issued on February 8, 2010 is of great significance in effectively cracking down on crimes, enhancing the people's sense of safety, reducing social contradictions, promoting social harmony and stability, and maintaining the state's lasting political stability, and it is an important guideline for the criminal trials of the people's courts. In light of the judicial practice, brief interpretation as to how to implement the spirit of the Opinions in the trial of cases of intentional homicide, intentional injury, and crime committed by an organization of a gangland nature is hereby issued. | | 2010年2月8日印发的《最高人民法院关于贯彻宽严相济刑事政策的若干意见》（以下简称《意见》），对于有效打击犯罪，增强人民群众安全感，减少社会对立面，促进社会和谐稳定，维护国家长治久安具有重要意义，是人民法院刑事审判工作的重要指南。现结合审判实践，就故意杀人、伤害及黑社会性质组织犯罪案件审判中如何贯彻《意见》的精神作简要阐释。 |
| I. General Requirements for the Implementation of the Criminal Policy of Combining Leniency with Severity in Three Categories of Cases | | 一、在三类案件中贯彻宽严相济刑事政策的总体要求 |
| To carry out the criminal policy of combining leniency with severity in the trial of cases of intentional homicide, intentional injury, and crime committed by an organization of a gangland nature, the provisions of Article 1 of the Opinions that “We shall treat different crimes in different ways in light of their actual circumstances, be lenient with those who deserve it, be severe when the actual circumstances so require, keep balance between leniency and severity, and impose due punishments” shall be implemented. To implement the general requirements, attention shall be paid to the following aspects: | | 在故意杀人、伤害及黑社会性质组织犯罪案件的审判中贯彻宽严相济刑事政策，要落实《意见》第1条规定：根据犯罪的具体情况，实行区别对待，做到该宽则宽，当严则严，宽严相济，罚当其罪。落实这个总体要求，要注意把握以下几点： |
| 1. Properly grasping objects subject to lenient or severe punishments. The rate of cases involving crimes of intentional homicide and intentional injury is high. With great social harmfulness, such crimes are the priorities of the people's courts in the criminal trial at various levels. Since their appearance in the late 1980s in China, crimes committed by organizations of a gangland nature maintain a rapid development momentum for a quite long time. Severely cracking down on crimes committed by organizations of a gangland nature is an important task for the people's courts in the criminal trial work at present or even in a longer period of time in the future. Therefore, as a whole, these three categories of crimes shall adhere to the guideline of imposing severe punishments. However, in the handling of specific cases, the scope of lenient or severe punishments shall be grasped according to the nature and circumstances of the case and the subjective malice and personal dangerousness of the actor. When determining the objects subject to lenient or severe punishments, the people's courts shall also pay attention to considering the situations and making accurate judgments for the economic and social development and public security situation changes, so as to serve the building of a harmonious socialist society. | | 1.正确把握宽与严的对象。故意杀人和故意伤害犯罪的发案率高，社会危害大，是各级法院刑事审判工作的重点。黑社会性质组织犯罪在我国自二十世纪八十年代末出现以来，长时间保持快速发展势头，严厉打击黑社会性质组织犯罪，是法院刑事审判在当前乃至今后相当长一段时期内的重要任务。因此，对这三类犯罪总体上应坚持从严惩处的方针。但是在具体案件的处理上，也要分别案件的性质、情节和行为人的主观恶性、人身危险性等情况，把握宽严的范围。在确定从宽与从严的对象时，还应当注意审时度势，对经济社会的发展和治安形势的变化作出准确判断，为构建社会主义和谐社会的目标服务。 |
| 2. Adhering to strict and legal case handling. In the trial of these three categories of cases, whether it is a lenient or severe punishment, it must be imposed in strict accordance with the legal provisions, so as to achieve well-founded basis for leniency and severity and impose due punishment rather than break through legal limit for the pursuit of crackdown effects. For instance, in the trial of a crime committed by an organization of a gangland nature, the identification of an organization of a gangland nature must meet the standards as prescribed in laws and legislative interpretations. It cannot be punished by lowering the standards or identified by raising the standards. | | 2.坚持严格依法办案。三类案件的审判中，无论是从宽还是从严，都必须严格依照法律规定进行，做到宽严有据，罚当其罪，不能为追求打击效果，突破法律界限。比如在黑社会性质组织犯罪的审理中，黑社会性质组织的认定必须符合法律和立法解释规定的标准，既不能降格处理，也不能拔高认定。 |
| 3. Paying attention to the unification of legal effects and social effects. The people's court shall handle a case in strict accordance with the law. When ensuring good legal effects, it shall also take into full account whether the handling of a case is conducive to winning the support of the people and social stability, disrupting crimes and resolving contradictions, educating and transforming criminal offenders and returning them to society, reducing social confrontation, promoting social harmony, and striving to better social effects. For instance, in the process of punishment execution, for the leader, organizer, or backbone member in an intentional homicide, an intentional injury, or a crime of a gangland nature, the peoples' court shall strictly grasp the application of commutation or release on parole and may impose lenient punishments to criminal offenders with less serious subjective malice and lower great personal dangerousness. | | 3.注重法律效果与社会效果的统一。严格依法办案，确保良好法律效果的同时，还应当充分考虑案件的处理是否有利于赢得人民群众的支持和社会稳定，是否有利于瓦解犯罪，化解矛盾，是否有利于罪犯的教育改造和回归社会，是否有利于减少社会对抗，促进社会和谐，争取更好的社会效果。比如在刑罚执行过程中，对于故意杀人、伤害犯罪及黑社会性质组织犯罪的领导者、组织者和骨干成员就应当从严掌握减刑、假释的适用，其他主观恶性不深、人身危险性不大的罪犯则可以从宽把握。 |
| II. Grasping Leniency and Severity in the Trial of Cases of Intentional Homicide and Intentional Injury | | 二、故意杀人、伤害案件审判中宽严相济的把握 |
| 1. Paying attention to differentiating two categories of cases of different natures. In an intentional homicide or intentional injury, the life or physical health of a person is infringed upon. With great social harmfulness, it directly affects the people's sense of safety. Therefore, it is quite necessary for Article 7 of the Opinions to treat crimes in which death is caused by intentional homicide or intentional injury as main targets of severe punishments. However, in practice, cases of intentional homicide or intentional injury are complicated and various. In the handling, attention shall be paid to different treatments according to different natures of cases. | | 1.注意区分两类不同性质的案件。故意杀人、故意伤害侵犯的是人的生命和身体健康，社会危害大，直接影响到人民群众的安全感，《意见》第7条将故意杀人、故意伤害致人死亡犯罪作为严惩的重点是十分必要的。但是，实践中的故意杀人、伤害案件复杂多样，处理时要注意分别案件的不同性质，做到区别对待。 |
In practice, cases of intentional homicide and intentional injury may, in terms of nature, be classified into two categories in general: cases where the public security is seriously impaired and the people's sense of safety is seriously affected, for instances, extreme hatred for the state and society and physical assault or murder of unspecific people; and cases caused by intensification of civil disputes over marriage, domestic troubles, neighborhood. Severe punishments shall be given in the former category of cases and defendants shall be given severe punishments or even sentenced to death according to the law. The handling of the latter category of cases shall reflect the spirit of severity. The people's court shall be especially prudent when it imposes the defendant a severe punishment, especially when it imposes the death penalty. Except where the criminal circumstances are especially execrable, the criminal consequences are especially serious, and the personal dangerousness is extremely great, a defendant shall not be sentenced to death in general. Where the victim has any fault in the cause or after the case is exposed, the defendant actively makes compensation, shows sincere repentance, and is forgiven by the victim or the family member thereof, the defendant shall be given a lenient punishment according to the law; and if the defendant falls under the statutory circumstances for a lighter or mitigated punishment at the same time, the people's court shall consider the discretionary punishment below life imprisonment. In the meantime, importance shall be attached to the incidental civil mediation in such cases and efforts shall be made to resolve contradictions of both parties, realize active “settlement of the case and disputes,” promote social harmony, and achieve the organic unity of legal effects and social effects. Article 23 of the Opinions is the summary of the aforesaid trial experience.
．．．．．． | | 实践中，故意杀人、伤害案件从性质上通常可分为两类：一类是严重危害社会治安、严重影响人民群众安全感的案件，如极端仇视国家和社会，以不特定人为行凶对象的；一类是因婚姻家庭、邻里纠纷等民间矛盾激化引发的案件。对于前者应当作为严惩的重点，依法判处被告人重刑直至判处死刑。对于后者处理时应注意体现从严的精神，在判处重刑尤其是适用死刑时应特别慎重，除犯罪情节特别恶劣、犯罪后果特别严重、人身危险性极大的被告人外，一般不应当判处死刑。对于被害人在起因上存在过错，或者是被告人案发后积极赔偿，真诚悔罪，取得被害人或其家属谅解的，应依法从宽处罚，对同时有法定从轻、减轻处罚情节的，应考虑在无期徒刑以下裁量刑罚。同时应重视此类案件中的附带民事调解工作，努力化解双方矛盾，实现积极的“案结事了”，增进社会和谐，达成法律效果与社会效果的有机统一。《意见》第23条是对此审判经验的总结。
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥500.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|