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Notice of the Supreme People's Procuratorate on Issuing the Fifth Group of Guiding Cases [Effective]
最高人民检察院关于印发第五批指导性案例的通知 [现行有效]
【法宝引证码】

Notice of the Supreme People's Procuratorate on Issuing the Fifth Group of Guiding Cases 

最高人民检察院关于印发第五批指导性案例的通知

(No. 4 [2014] of the Supreme People's Procuratorate on September 10, 2014) (2014年9月10日 高检发研字[2014]4号)

The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: 各省、自治区、直辖市人民检察院,军事检察院,新疆生产建设兵团人民检察院:
Upon decision of the 26th meeting of the twelfth Procuratorial Committee of the Supreme People's Procuratorate on August 28, 2014, the case regarding Chen Dengchang's robbery and theft and Fu Zhiqiang's theft and other two cases are hereby issued to you for your reference. 经2014年8月28日最高人民检察院第十二届检察委员会第二十六次会议决定,现将陈邓昌抢劫、盗窃,付志强盗窃案等三个案例印发你们,供参考。
Case regarding Chen Dengchang's Robbery and Theft and Fu Zhiqiang's Theft 陈邓昌抢劫、盗窃,付志强盗窃案
(Case No. 17 of the Supreme People's Procuratorate) (检例第17号)
[Keywords] 【关键词】
Criminal procutorial appeal under procedures at second instance 第二审程序刑事抗诉
Robbery by breaking into a house; crime of theft; supplementary prosecution 入户抢劫 盗窃罪 补充起诉
[Basic Facts] 【基本案情】
Defendant: Chen Dengchang, male, from Guizhou Province, born in 1989, jobless. 被告人陈邓昌,男,贵州省人,1989年出生,无业。
Defendant: Fu Zhiqiang, male, from Guizhou Province, born in 1981, farmer. 被告人付志强,男,贵州省人,1981年出生,农民。
1. Crime of robbery 一、抢劫罪
At 15:00 on February 18, 2012, defendant, Chen Dengchang, came to a rented house located in No. 1, Lane 10, Tianbian Street, No. 2 Rear Stone Village, Lanshi Town, Chancheng District, Foshan City, Guangdong Province with screwdrivers and other tools for criminal purpose, broke into the house, and stole 100 yuan in cash. After coming across the victim, Chen Nanjie, in the living room, Chen Dengchang threatened her into not screaming with a hammer in hand and then fled the scene. 2012年2月18日15时,被告人陈邓昌携带螺丝刀等作案工具来到广东省佛山市禅城区澜石石头后二村田边街10巷1号的一间出租屋,撬门进入房间盗走现金人民币100元,后在客厅遇到被害人陈南姐,陈邓昌拿起铁锤威胁不让其喊叫,并逃离现场。
2. Crime of theft 二、盗窃罪
(1) On February 23, 2012, defendant, Fu Zhiqiang, came to house No. 302 located in No. 398, Jingyi Village, Hecheng Sub-district, Gaoming District, Foshan City with tools for criminal purpose, broke into the house, and stole 300 yuan in cash. 1.2012年2月23日,被告人付志强携带作案工具来到广东省佛山市高明区荷城街道井溢村398号302房间,撬门进入房间内盗走现金人民币300元。
(2) On February 25, 2012, upon conspiracy, defendants, Fu Zhiqiang and Chen Dengchang, came to a rented house No. 502 located in No. 287, Jingyi Village, Hecheng Sub-district, Gaoming District, Foshan City with tools for criminal purpose, broke into the house by lock-picking, and stole an ASUS laptop (valued 2,905 yuan). Afterwards, they disposed of it at the price of 1,300 yuan. 2.2012年2月25日,被告人付志强、陈邓昌密谋后携带作案工具到佛山市高明区荷城街道井溢村287号502出租屋,撬锁进入房间盗走一台华硕笔记本电脑(价值人民币2905元)。后二人以1300元的价格销赃。
(3) On February 28, 2012, defendant, Fu Zhiqiang, came to house No. 402 located in No. 243, Jingyi Village, Hecheng Sub-district, Gaoming District, Foshan City with tools for criminal purpose, broke into the house by lock-picking, and stole 1,500 yuan in cash. 3.2012年2月28日,被告人付志强携带作案工具来到佛山市高明区荷城街道井溢村243号402房间,撬锁进入房间后盗走现金人民币1500元。
(4) On March 3, 2012, upon conspiracy, defendants, Fu Zhiqiang and Chen Dengchang, came to house No. 401 located in No. 34, Guandang Village, Hecheng Sub-district, Gaoming District, Foshan City with an Allen key and other tools for criminal purpose, broke into the house by lock-picking, and stole 700 yuan in cash. 4.2012年3月3日,被告人付志强、陈邓昌密谋后携带六角匙等作案工具到佛山市高明区荷城街道官当村34号401房,撬锁进入房间后盗走现金人民币700元。
(5) On March 28, 2012, upon conspiracy, defendants, Chen Dengchang, Ye Qiyuan, and Wei Shenglun (the latter two persons were handled in other cases and sentenced), came to house No. 501 located in No. 31, Yuejin Road, Chancheng District, Foshan City with tools for criminal purpose. Ye Qiyuan was responsible for keeping watch, and Chen Dengchang and Wei Shenglun broke into the house by lock-picking and stole a Lenovo All-In-One (AIO) PC (valued 3,928 yuan), a Nikon digital camera P300 (valued 1,813 yuan), and 600 yuan in cash. When fleeing the scene, they were discovered by other persons and Chen Dengchang and other persons discarded the AIO PC. 5.2012年3月28日,被告人陈邓昌、叶其元、韦圣伦(后二人另案处理,均已判刑)密谋后携带作案工具来到佛山市禅城区跃进路31号501房间,叶其元负责望风,陈邓昌、韦圣伦二人撬锁进入房间后盗走联想一体化电脑一台(价值人民币3928元)、尼康P300数码相机一台(价值人民币1813元)及600元现金人民币。后在逃离现场的过程中被人发现,陈邓昌等人将一体化电脑丢弃。
(6) On April 3, 2012, defendant, Fu Zhiqiang, came to house No. 301 located in No. 283, Gangtou Feng Village, Hecheng Sub-district, Gaoming District, Foshan City with tools for criminal purpose, broke into the house by lock-picking, and stole 7,000 yuan in cash. 6.2012年4月3日,被告人付志强携带作案工具来到佛山市高明区荷城街道岗头冯村283号301房间,撬锁进入房间后盗走现金人民币7000元。
(7) On April 13, 2012, upon conspiracy, defendants, Chen Dengchang, Ye Qiyuan, and Wei Shenglun, came to house No. 303, Building 5 located in No. 63, Getianfang, Fenghuang Road, Shiwan Town, Chancheng District, Foshan City with tools for criminal purpose. Ye Qiyuan was responsible for keeping watch, and Chen Dengchang and Wei Shenglun broke into the house by lock-picking and stole 6,000 yuan and 900 HKD in cash and a Nokia N86 mobile phone (valued 608 yuan). 7.2012年4月13日,被告人陈邓昌、叶其元、韦圣伦密谋后携带作案工具来到佛山市禅城区石湾凤凰路隔田坊63号5座303房间,叶其元负责望风,陈邓昌、韦圣伦二人撬锁进入房间后盗走现金人民币6000元、港币900元以及一台诺基亚N86手机(价值人民币608元)。
[Proceedings] 【诉讼过程】
On April 6, 2012, Fu Zhiqiang was put under criminal detention by Gaoming Branch of the Public Security Bureau of Foshan City, Guangdong Province (hereinafter referred to as “Gaoming Branch”) for being suspected of committing the crime of theft and on May 9 of the same year, he was arrested. On May 29, 2012, Chen Dengchang was put under criminal detention by Gaoming Branch for being suspected of committing the crime of theft and on July 2 of the same year, he was arrested. On July 6, 2012, Gaoming Branch transferred the case to the People's Procuratorate of Gaoming District, Foshan City for examination and prosecution on the ground that the criminal suspects, Fu Zhiqiang and Chen Dengchang, were suspected of committing the crime of theft. On July 23, 2012, the People's Procuratorate of Gaoming District instituted a public prosecution in the People's Court of Gaoming District, Foshan City on the ground that defendants, Fu Zhiqiang and Chen Dengchang, committed the crime of theft. 2012年4月6日,付志强因涉嫌盗窃罪被广东省佛山市公安局高明分局刑事拘留,同年5月9日被逮捕。2012年5月29日,陈邓昌因涉嫌盗窃罪被佛山市公安局高明分局刑事拘留,同年7月2日被逮捕。2012年7月6日,佛山市公安局高明分局以犯罪嫌疑人付志强、陈邓昌涉嫌盗窃罪向佛山市高明区人民检察院移送审查起诉。2012年7月23日,高明区人民检察院以被告人付志强、陈邓昌犯盗窃罪向佛山市高明区人民法院提起公诉。
During the trial of first instance, the People's Procuratorate of Gaoming District found upon further examination that three criminal facts concerning the defendant, Chen Dengchang, were omitted. On September 24, 2012, the People's Procuratorate of Gaoming District instituted a supplementary prosecution against one criminal fact that the burglary by breaking into a house committed by Chen Dengchang was transformed into a robbery and the other two criminal facts that Chen Dengchang, in collision with Ye Qiyuan and Wei Shenglun, committed joint thefts. 一审期间,高明区人民检察院经进一步审查,发现被告人陈邓昌有三起遗漏犯罪事实。2012年9月24日,高明区人民检察院依法补充起诉被告人陈邓昌入室盗窃转化为抢劫的犯罪事实一起和陈邓昌伙同叶其元、韦圣伦共同盗窃的犯罪事实二起。
On November 14, 2012, after a trial of first instance, the People's Court of Gaoming District, Foshan City held that: The charges of the procuratorial authority imposed on the defendants, Chen Dengchang and Fu Zhiqiang, that Chen Dengchang committed the crime of robbery and the crime of theft and Fu Zhiqiang committed the crime of theft were clear in criminal facts and true and sufficient in evidence and such charges were tenable. After Chen Dengchang committed a theft by breaking into a house and was discovered by other person, in order to resist arrest, he threatened the person with a tool for criminal purpose on the scene. His acts satisfied the essential elements of a transformed robbery and he should be convicted and punished for the crime of robbery, but his such acts should not be recognized as “robbery by breaking into a house” on the grounds that he broke into the house not for the purpose of committing a robbery, but for threatening the victim by violence upon abrupt intention in the house, and no harm was caused to the victim. The People's Court of Gaoming District, Foshan City entered a judgment according to the law that defendant, Chen Dengchang, should be sentenced to a fixed-term imprisonment of three years and nine months and a fine of 4,000 yuan should be imposed on him for the crime of robbery; should be sentenced to a fixed-term imprisonment of one year and nine months and a fine of 2,000 yuan should be imposed on him for the crime of theft; and it was decided to execute a fixed-term imprisonment of five years and a fine of 6,000 yuan; and that defendant, Fu Zhiqiang, should be sentenced to a fixed-term imprisonment of two years and a fine of 2,000 yuan should be imposed on him for the crime of theft. 2012年11月14日,佛山市高明区人民法院一审认为,检察机关指控被告人陈邓昌犯抢劫罪、盗窃罪,被告人付志强犯盗窃罪的犯罪事实清楚,证据确实充分,罪名成立。被告人陈邓昌在入户盗窃后被发现,为抗拒抓捕而当场使用凶器相威胁,其行为符合转化型抢劫的构成要件,应以抢劫罪定罪处罚,但不应认定为“入户抢劫”。理由是陈邓昌入户并不以实施抢劫为犯罪目的,而是在户内临时起意以暴力相威胁,且未造成被害人任何损伤,依法判决:被告人陈邓昌犯抢劫罪,处有期徒刑三年九个月,并处罚金人民币四千元;犯盗窃罪,处有期徒刑一年九个月,并处罚金人民币二千元;决定执行有期徒刑五年,并处罚金人民币六千元。被告人付志强犯盗窃罪,处有期徒刑二年,并处罚金人民币二千元。
On November 19, 2012, the People's Procuratorate of Gaoming District, Foshan City held that the first instance judgment was erroneous in the application of law, which caused an inappropriate sentencing and it thus filed a procutorial appeal in the Intermediate People's Court of Foshan City according to the law. On March 21, 2013, the Intermediate People's Court of Foshan City entered a second instance judgment, in which the procutorial appeal opinions of the People's Procuratorate of Gaoming District, Foshan City were admitted, the part of sentence on the defendant in the original instance, Chen Dengchang for committing the crime of robbery and the part of decision on joint execution in the original judgment were reversed, and the original judgment was amended according to the law. 2012年11月19日,佛山市高明区人民检察院认为一审判决适用法律错误,造成量刑不当,依法向佛山市中级人民法院提出抗诉。2013年3月21日,佛山市中级人民法院二审判决采纳了抗诉意见,撤销原判对原审被告人陈邓昌抢劫罪量刑部分及决定合并执行部分,依法予以改判。
[Grounds for Procutorial Appeal] 【抗诉理由】
After the first instance judgment was pronounced, the People's Procuratorate of Gaoming District, Foshan City held upon examination that: The first instance judgment where the acts of the defendant, Chen Dengchang, failed to be recognized as “robbery by breaking into a house” was erroneous in the application of law, which caused an inappropriate sentencing, and should be corrected. Therefore, the People's Procuratorate of Gaoming District, Foshan City filed a procutorial appeal in the Intermediate People's Court of Foshan City; and the People's Procuratorate of Foshan City supported such procutorial appeal. The grounds for filing a procutorial appeal and supporting the procutorial appeal were as follows: 一审宣判后,佛山市高明区人民检察院审查认为一审判决未认定被告人陈邓昌的行为属于“入户抢劫”,属于适用法律错误,且造成量刑不当,应予纠正,遂依法向佛山市中级人民法院提出抗诉;佛山市人民检察院支持抗诉。抗诉和支持抗诉理由是:
(1) There was a bias in the understanding of “robbery by breaking into a house” in the original judgment. The original judgment did not recognize that there were circumstances of “breaking into a house” in the crime of robbery committed by the defendant, Chen Dengchang, on the grounds that “although the violence occurred in a house, it was committed not for committing a robbery, but for threatening the victim by violence upon abrupt intention in the house, and such violence did not cause any harm to the victim.” In accordance with the provisions on the recognition of “robbery by breaking into a house” in the Opinions of the Supreme People's Court on Several Issues concerning the Trial of Criminal Cases regarding Robbery and Forcible Seizure, “breaking into a house” must be for the purpose of committing a robbery or any other crime; however, the illegality of the “purpose” as mentioned above was not within the limit of robbery, it should include theft and other crimes. 1.原判决对“入户抢劫”的理解存在偏差。原判决以“暴力行为虽然发生在户内,但是其不以实施抢劫为目的,而是在户内临时起意并以暴力相威胁,且未造成被害人任何损害”为由,未认定被告人陈邓昌所犯抢劫罪具有“入户”情节。根据2005年7月《最高人民法院关于审理抢劫、抢夺刑事案件适用法律若干问题的意见》关于认定“入户抢劫”的规定,“入户”必须以实施抢劫等犯罪为目的。但是,这里“目的”的非法性不是以抢劫罪为限,还应当包括盗窃等其他犯罪。
(2) The original judgment was erroneous in the application of law. Paragraph 2 of Article 1 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Robbery Cases (hereinafter referred to as the “Interpretation”) as issued in November 2000 provides that “for a theft by breaking into a house, the acts of using violence or threatening the victim by violence on the scene after being discovered should be recognized as robbery by breaking into a house.” In this case, in accordance with the relevant provisions of the Criminal Law and the Interpretation, the acts of the defendant, Chen Dengchang, of threatening the victim by violence on the scene after his robbery by breaking into a house was discovered should be recognized as “robbery by breaking into a house.” 2.原判决适用法律错误。2000年11月《最高人民法院关于审理抢劫案件具体应用法律若干问题的解释》(以下简称《解释》)第一条第二款规定,“对于入户盗窃,因被发现而当场使用暴力或者以暴力相威胁的行为,应当认定为入户抢劫。”依据刑法《解释》的有关规定,本案中,被告人陈邓昌入室盗窃被发现后当场使用暴力相威胁的行为,应当认定为“入户抢劫”。
(3) The original judgment was erroneous in the application of law, which caused the inappropriate sentencing. “Houses” are the safest places for common citizens. “Robbery by breaking into a house” not only infringes upon a citizen's right of property ownership, but endangers his or her personal safety. Since the victim is in closed space and usually fails to ask for help, compared to general robbery occurring outdoors, robbery by breaking into a house makes the victim suffer from more serious terror or harm in both body and mind. Item (1) of Article 263 of the Criminal Law provides that those “breaking into others' houses to rob” should be sentenced to a fixed-term imprisonment of ten years or above, life imprisonment, or death penalty, and should be subject to fines or confiscation of property. The original judgment that Chen Dengchang should be sentenced to a fixed-term imprisonment of three years and nine months for the crime of robbery was erroneous in the application of law, which caused the inappropriate sentencing. 3.原判决适用法律错误,导致量刑不当。“户”对一般公民而言属于最安全的地方。“入户抢劫”不仅严重侵犯公民的财产所有权,更是危及公民的人身安全。因为被害人处于封闭的场所,通常无法求救,与发生在户外的一般抢劫相比,被害人的身心会受到更为严重的惊吓或者伤害。根据刑法二百六十三条第一项的规定,“入户抢劫”应当判处十年以上有期徒刑、无期徒刑或者死刑,并处罚金或者没收财产。原判决对陈邓昌抢劫罪判处三年九个月有期徒刑,属于适用法律错误,导致量刑不当。
[Final Judgment] 【终审判决】
After the second instance review, the Intermediate People's Court of Foshan City, Guangdong Province held that: The first instance judgment determining that the defendant in the original instance, Chen Dengchang, committed the crime of robbery and the defendants in the original instance, Chen Dengchang and Fu Zhiqiang, committed the crime of theft was clear in facts and true and sufficient in evidence. After Chen Dengchang committed a robbery by breaking into a house, he was discovered by the victim on the scene. For the purpose of intending to resist arrest, he threatened the victim into not screaming by violence on the scene and then fled the crime scene. His acts should be recognized as “robbery by breaking into a house.” The original judgment failed to recognize that there were circumstances of “breaking into a house” in the crime of robbery committed by Chen Dengchang, which was erroneous in the application of law, and it should be corrected. The procutorial appeal opinions of the procuratorial organ were tenable and should be admitted. Therefore, the Intermediate People's Court of Foshan City, Guangdong Province entered a judgment according to the law that: The part of sentencing on Chen Dengchang for committing the crime of robbery and the part of decision on joint execution in the first instance judgment should be revered; Chen Dengchang should be sentenced to a fixed-term imprisonment of ten years and a fine of 10,000 yuan should be imposed on him for committing the crime of robbery, and he should be sentenced to a fixed-term imprisonment of one year and nine months and a fine of 2,000 yuan should be imposed on him for committing the crime of theft; and it was decided to execute the fixed-term imprisonment of 11 years and a fine of 12,000 yuan. 广东省佛山市中级人民法院二审认为,一审判决认定原审被告人陈邓昌犯抢劫罪,原审被告人陈邓昌、付志强犯盗窃罪的事实清楚,证据确实、充分。陈邓昌入户盗窃后,被被害人当场发现,意图抗拒抓捕,当场使用暴力威胁被害人不许其喊叫,然后逃离案发现场,依法应当认定为“入户抢劫”。原判决未认定陈邓昌所犯的抢劫罪具有“入户”情节,系适用法律错误,应当予以纠正。检察机关抗诉意见成立,予以采纳。据此,依法判决:撤销一审判决对陈邓昌抢劫罪量刑部分及决定合并执行部分;判决陈邓昌犯抢劫罪,处有期徒刑十年,并处罚金人民币一万元,犯盗窃罪,处有期徒刑一年九个月,并处罚金二千元,决定执行有期徒刑十一年,并处罚金一万二千元。
[Key Points] 【要旨】
(1) For a theft by breaking into a house, the acts of a person who, after being discovered by the victim, uses violence or threatens the victim by violence on the scene should be recognized as “robbery by breaking into a house.” 1.对于入户盗窃,因被发现而当场使用暴力或者以暴力相威胁的行为,应当认定为“入户抢劫”。
(2) Where, before the people's court pronounces a judgment, the people's procuratorate finds that there is any omitted offence of the defendant and such offence may be concurrently prosecuted and tried, it may institute a supplementary prosecution. 2.在人民法院宣告判决前,人民检察院发现被告人有遗漏的罪行可以一并起诉和审理的,可以补充起诉。
(3) Where the people's procuratorate holds that the first instance judgment entered by the people's court at the same level is obviously inappropriate in the application of penalty by degrading a serious crime, it should file a procutorial appeal. 3.人民检察院认为同级人民法院第一审判决重罪轻判,适用刑罚明显不当的,应当提出抗诉。
[Legal Provisions] 【相关法律规定】

Articles 263, 264, 269, 25, and 69 of the Criminal Law of the People's Republic of China; and Article 217 and item (2) of paragraph 1 of Article 225 of the Criminal Procedure Law of the People's Republic of China.
......

 中华人民共和国刑法》第二百六十三条、第二百六十四条、第二百六十九条、第二十五条、第六十九条;《中华人民共和国刑事诉讼法》第二百一十七条、第二百二十五条第一款第二项。
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