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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爱法律,有未来; 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、第二百六十四条北大法宝、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。

Case regarding Guo Mingxian's Joining an Organization with Characteristics of a Criminal Syndicate, Intentional Homicide, and Intentional Injury
 郭明先参加黑社会性质组织、故意杀人、故意伤害案
(Case No. 18 of the Supreme People's Procuratorate) (检例第18号)
[Keywords] 【关键词】
Criminal procutorial appeal under procedures at second instance 第二审程序刑事抗诉
Intentional homicide; extraordinarily serious crime; death penalty with immediate execution 故意杀人 罪行极其严重 死刑立即执行
[Basic Facts] 【基本案情】
Defendant: Guo Mingxian, male, from Sichuan Province, born in 1972, jobless. In September 1997, Guo Mingxian was sentenced to a fixed-term imprisonment of five years and six months for the crime of theft and in December 2001, he was released after serving the sentence. 被告人郭明先,男,四川省人,1972年出生,无业。1997年9月因犯盗窃罪被判有期徒刑五年六个月,2001年12月刑满释放。
On May 7, 2003, when paying the bill for singing Karaoke in the “Classic Song City” located in Santai County, Sichuan Province, Li Zerong (handled in another case and sentenced) and other persons came into conflicts with He Chun, boss of the “Classic Song City.” Being mustered by Li Zerong and his men, defendant, Guo Mingxian, in collusion with Li Zerong, Wang Chengpeng, and Wang Guojun (the latter two persons were handled in other cases and sentenced), smashed the “Classic Song City” and Guo Mingxian chopped people with a knife, causing serious injury of He Chun and minor injury of a client, Wu Qibin. 2003年5月7日,李泽荣(另案处理,已判刑)等人在四川省三台县“经典歌城”唱歌结账时与该歌城老板何春发生纠纷,被告人郭明先受李泽荣一方纠集,伙同李泽荣、王成鹏、王国军(另案处理,均已判刑)打砸“经典歌城”,郭明先持刀砍人,致何春重伤、顾客吴启斌轻伤。
On January 1, 2008, a traffic accident occurred between Min Sijin (handled in another case and sentenced) and Wang Yuanjun in Yayanping, Licheng Township, Santai County, Sichuan Province and both parties came into conflicts over compensation for the damage to the motorcycle of Min Sijin. Wang Yuanjun called Lan Jin, Li Xixiu and other victims and informed them of the accident and Min Sijin called Guo Mingxian, Min Siyong, Chen Qiang (the latter two persons were handled in other cases and sentenced) and other persons. Min Siyong and his friends, Dai Anquan and Lan Zaiwei, first arrived at the scene. Since Dai Anquan and Lan Zaiwei were acquainted with the both parties in conflicts, they immediately propitiated them and the conflicts basically came to an end. Afterwards, Guo Mingxian, Chen Qiang and other persons also arrived at the scene by motorcycle. After Min Sijin identified Lan Jin to Guo Mingxian, Guo Mingxian intended to chop Lan Jin with a kitchen knife and was impeded by the victim, Lan Jiyu (26 years old at the time of death), who passed by and tried to stop them from fighting. Guo Mingxian then chopped the head of Lan Jiyu with the kitchen knife, causing Lan Jiyu's death from severe craniocerebral injury. Seeing this, Lan Jin and Li Xixiu beat Guo Mingxian with sticks. Guo Mingxian chopped the crowds with the kitchen knife at random, causing Lan Jin's serious injury and Li Xixiu's minor injury, and then Guo Mingxian escaped by the motorcycle driven by Min Siyong. 2008年1月1日,闵思金(另案处理,已判刑)与王元军在四川省三台县里程乡岩崖坪发生交通事故,双方因闵思金摩托车受损赔偿问题发生争执。王元军电话通知被害人兰金、李西秀等人,闵思金电话召集郭明先及闵思勇、陈强(另案处理,均已判刑)等人。闵思勇与其朋友代安全、兰在伟先到现场,因代安全、兰在伟与争执双方均认识,即进行劝解,事情已基本平息。后郭明先、陈强等人亦分别骑摩托车赶至现场。闵思金向郭明先指认兰金后,郭明先持菜刀欲砍兰金,被路过并劝架的被害人蓝继宇(殁年26岁)阻拦,郭明先遂持菜刀猛砍蓝继宇头部,致蓝继宇严重颅脑损伤死亡。兰金、李西秀等见状,持木棒击打郭明先,郭明先持菜刀乱砍,致兰金重伤,致李西秀轻伤。后郭明先搭乘闵思勇所驾摩托车逃跑。
In May 2008, during the absconding period, upon invitation of the defendant in the same case, Li Jin (sentenced to a fixed-term imprisonment of 14 years for the crime of organizing and leading an organization with characteristics of a criminal syndicate and the crime of intentional injury), Guo Mingxian joined the organization with characteristics of a criminal syndicate that was organized and led by the defendant in the same case, Wang Shuhua (sentenced to a fixed-term imprisonment of 20 years for the crime of organizing and leading an organization with characteristics of a criminal syndicate and the crime of intentional injury), in An County, Mianyang City, Sichuan Province and served as a hired roughneck. Being dissatisfied with Hu Jian, Wang Shuhua ordered Li Jin to arrange persons to punish Hu Jian and his men. On May 17, 2009, seeing that Hu Jian's two men, Fan Ping and Zhang Xuanhui, were having a barbecue in Jiang's BBQ Restaurant in Gai Township, An County, Li Jin called Guo Mingxian to come over. Upon identification, Guo Mingxian, in a mask, chopped Fan Ping and Zhang Xuanhui with a kitchen knife, causing minor injuries of these two persons. 2008年5月,郭明先负案潜逃期间,应同案被告人李进(犯组织、领导黑社会性质组织罪、故意伤害罪等,被判处有期徒刑十四年)的邀约,到四川省绵阳市安县参加了同案被告人王术华(犯组织、领导黑社会性质组织罪、故意伤害罪等罪名,被判处有期徒刑二十年)组织、领导的黑社会性质组织,充当打手。因王术华对胡建不满,让李进安排人教训胡建及其手下。2009年5月17日,李进见胡建两名手下范平、张选辉在安县花荄镇姜记烧烤店吃烧烤,便打电话叫来郭明先。经指认,郭明先蒙面持菜刀砍击范平、张选辉,致该二人轻伤。
[Proceedings] 【诉讼过程】
On July 28, 2009, Guo Mingxian was subject to criminal detention by the Public Security Bureau of An County, Mianyang City, Sichuan Province for being suspected of committing the crime of intentional injury and on August 18 of the same year, he was arrested. It was found upon investigation that the criminal suspect, Guo Mingxian, was also involved in a series of cases regarding crimes with characteristics of a criminal syndicate committed by Wang Shuhua and other persons. Upon conclusion of investigation, the Public Security Bureau of An County, Mianyang City transferred the case to the People's Procuratorate of An County, Mianyang City for examination and prosecution. After accepting the case, the People's Procuratorate of An County submitted it to the People's Procuratorate of Mianyang City for examination and prosecution. On July 19, 2010, the People's Procuratorate of Mianyang City instituted a public prosecution in the Intermediate People's Court of Mianyang City against the series of cases regarding crimes with characteristics of a criminal syndicate committed by Wang Shuhua and other persons, and charged the defendant in the case, Guo Mingxian, with the crime of joining an organization with characteristics of a criminal syndicate, the crime of intentional injury, and the crime of intentional homicide. 2009年7月28日,郭明先因涉嫌故意伤害罪被四川省绵阳市安县公安局刑事拘留,同年8月18日被逮捕,经查犯罪嫌疑人郭明先还涉嫌王术华等人黑社会性质组织系列犯罪案件。四川省绵阳市安县公安局侦查终结后,移送四川省绵阳市安县人民检察院审查起诉。该院受理后,于2010年1月3日报送四川省绵阳市人民检察院审查起诉。2010年7月19日,四川省绵阳市人民检察院对王术华等人参与的黑社会性质组织系列犯罪案件向绵阳市中级人民法院提起公诉,其中指控该案被告人郭明先犯参加黑社会性质组织罪、故意伤害罪和故意杀人罪。
On December 17, 2010, after a first instance trial, the Intermediate People's Court of Mianyang City held that: In 1997, the defendant, Guo Mingxian, was sentenced to a fixed-term imprisonment for committing the crime of theft. After being released after serving the sentence on December 26, 2001, he committed a crime of intentional injury in 2003, a crime of intentional homicide and a crime of joining an organization with characteristics of a criminal syndicate in 2008. Guo Mingxian should be sentenced to a penalty above fixed-term imprisonment and as a recidivist, a severer punishment should be imposed on him. Therefore, the Intermediate People's Court of Mianyang City entered a judgment according to the law that the defendant, Guo Mingxian, should be sentenced to a fixed-term imprisonment of two years for the crime of joining an organization with characteristics of a criminal syndicate; should be sentenced to death penalty with a two-year suspension of execution and deprival of political rights for life for the crime of intentional homicide; and should be sentenced to a fixed-term imprisonment of five years for the crime of intentional injury; Guo Mingxian should be subject to the joinder of penalties and it was decided to execute the death penalty with a two-year suspension of execution and deprival of political rights for life. 2010年12月17日,绵阳市中级人民法院一审认为,被告人郭明先1997年因犯盗窃罪被判处有期徒刑,2001年12月26日刑满释放后,又于2003年故意伤害他人,2008年故意杀人、参加黑社会性质组织,均应判处有期徒刑以上刑罚,系累犯,应当从重处罚。依法判决:被告人郭明先犯参加黑社会性质组织罪,处有期徒刑两年;犯故意杀人罪,处死刑,缓期二年执行,剥夺政治权利终身;犯故意伤害罪,处有期徒刑五年;数罪并罚,决定执行死刑,缓期二年执行,剥夺政治权利终身。
On December 30, 2010, the People's Procuratorate of Mianyang City held that the sentence imposed on the defendant, Guo Mingxian, was improperly light in the first instance judgment and it filed a procutorial appeal in the Higher People's Court of Sichuan Province according to the law. On April 16, 2012, the Higher People's Court of Sichuan Province admitted the procutorial appeal opinions in the second instance judgment and sentenced Guo Mingxian to death penalty with immediate execution. On October 26, 2012, the Supreme People's Court rendered a ruling to approve the judgment of the Higher People's Court of Sichuan Province on the death penalty of the defendant, Guo Mingxian. On November 22, 2012, Guo Mingxian was executed. 2010年12月30日,四川省绵阳市人民检察院认为一审判决对被告人郭明先量刑畸轻,依法向四川省高级人民法院提出抗诉。2012年4月16日,四川省高级人民法院二审判决采纳抗诉意见,改判郭明先死刑立即执行。2012年10月26日,最高人民法院裁定核准四川省高级人民法院对被告人郭明先的死刑判决。2012年11月22日,被告人郭明先被执行死刑。
[Grounds for Procutorial Appeal] 【抗诉理由】
After the first instance judgment was pronounced, the People's Procuratorate of Mianyang City held upon examination that the sentence imposed on the defendant, Guo Mingxian, in the original judgment was improperly light and it filed a procutorial appeal in the Higher People's Court of Sichuan Province according to the law; and the People's Procuratorate of Sichuan Province supported such procutorial appeal. The grounds for filing a procutorial appeal and supporting the procutorial appeal were that Guo Mingxian was sentenced to death penalty with a two-year suspension of execution in the first instance judgment, which sentence was improperly light. In 1997, Guo Mingxian was sentenced to a fixed-term imprisonment of five years and six months for the crime of theft. After being released upon completion of the sentence in December 2012, he remained impenitent and continued to commit crimes. On May 7, 2003, in collusion with other persons, he smashed the “Classic Song City” in Santai County and attacked people with a knife, causing one serious injury and one minor injury, and his acts constituted the crime of intentional injury. During the absconding period, on January 1, 2008, he attacked people with a knife in Yayanping, Licheng Township, Santai County, causing one death, one serious injury, and one minor injury, and his acts constituted the crime of intentional homicide and the crime of intentional injury. Afterwards, he also actively joined an organization with characteristics of a criminal syndicate and served as a hired roughneck. On May 17, 2009, under the arrangement of the organization, in a mask, he attacked people with a knife, causing minor injuries of two persons, and his acts constituted the crime of joining an organization with characteristics of a criminal syndicate and the crime of intentional injury. According to the facts and evidence of this case, the defendant, Guo Mingxian, had committed extraordinarily serious crime with cruel criminal means serious criminal consequences, and serious subjective malice. According to the principle that the severity of the penalty was consistent with the crime committed and the criminal liability assumed, he should be sentenced to death penalty with immediate execution according to the law. 一审宣判后,四川省绵阳市人民检察院经审查认为原审判决对被告人郭明先量刑畸轻,依法向四川省高级人民法院提出抗诉;四川省人民检察院支持抗诉。抗诉和支持抗诉理由是:一审判处被告人郭明先死刑,缓期二年执行,量刑畸轻。郭明先1997年因犯盗窃罪被判有期徒刑五年六个月,2001年12月刑满释放后,不思悔改,继续犯罪。于2003年5月7日,伙同他人打砸三台县“经典歌城”,并持刀行凶致一人重伤,一人轻伤,其行为构成故意伤害罪。负案潜逃期间,于2008年1月1日在三台县里程乡岩崖坪持刀行凶,致一人死亡,一人重伤,一人轻伤,其行为构成故意杀人罪和故意伤害罪。此后,又积极参加黑社会性质组织,充当他人打手,并于2009年5月17日受该组织安排,蒙面持刀行凶,致两人轻伤,其行为构成参加黑社会性质组织罪和故意伤害罪。根据本案事实和证据,被告人郭明先的罪行极其严重、犯罪手段残忍、犯罪后果严重,主观恶性极大,根据罪责刑相适应原则,应当依法判处其死刑立即执行。
[Final Judgment] 【终审结果】
After the second instance review, the Higher People's Court of Sichuan Province held that: The case was clear in facts and true and sufficient in evidence; the defendant in the original instance, Guo Mingxian, committed the crime of joining an organization with characteristics of a criminal syndicate, the crime of intentional homicide, and the crime of intentional injury; as a recidivist, he possessed serious subjective malice and a severer penalty should be imposed on him according to the law. The grounds of the procuratorial organ for filing a procutorial appeal that “the sentence imposed on Guo Mingxian in the original judgment was improperly light” were tenable. Therefore, the Higher People's Court of Sichuan Province set aside the part of sentence imposed on the defendant in the original instance, Guo Mingxian, in the first instance judgment and sentenced Guo Mingxian to a fixed-term imprisonment of two years for the crime of joining an organization with characteristics of a criminal syndicate; to death penalty for the crime of intentional homicide; to a fixed-term imprisonment of five years for the crime of intentional injury; and Guo Mingxian should be subject to the joinder of penalties and it was decided to execute the death penalty and deprival of political rights for life. Upon approval of the Supreme People's Court, Guo Mingxian has been executed. 四川省高级人民法院二审认为,本案事实清楚,证据确实、充分,原审被告人郭明先犯参加黑社会性质组织罪、故意杀人罪、故意伤害罪,系累犯,主观恶性极深,依法应当从重处罚。检察机关认为“原判对郭明先量刑畸轻”的抗诉理由成立。据此,依法撤销一审判决关于原审被告人郭明先量刑部分,改判郭明先犯参加黑社会性质组织罪,处有期徒刑两年;犯故意杀人罪,处死刑;犯故意伤害罪,处有期徒刑五年;数罪并罚,决定执行死刑,并剥夺政治权利终身。经报最高人民法院核准,已被执行死刑。
[Key Point] 【要旨】
According to the law, death penalty only applies to any criminal having committed extraordinarily serious crime. For a defendant that has committed extraordinarily serious crime, severely endangers the national security and public safety, seriously impairs the citizen's right of life, or seriously undermines the social order in a criminal case regarding such crimes related to criminal syndicate , terrorism, or violence as intentional homicide, intentional injury, kidnapping, and explosion, he or she should be sentenced to death penalty according to the law. Where the people's court fails to sentence him or her to death penalty, the people's procuratorate should file a procutorial appeal according to the law. 死刑依法只适用于罪行极其严重的犯罪分子。对故意杀人、故意伤害、绑架、爆炸等涉黑、涉恐、涉暴刑事案件中罪行极其严重,严重危害国家安全和公共安全、严重危害公民生命权,或者严重危害社会秩序的被告人,依法应当判处死刑,人民法院未判处死刑的,人民检察院应当依法提出抗诉。
[Legal Provisions] 【相关法律规定】

Articles 232, 234, and 294 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》第二百三十二条、第二百三十四条、第二百九十四条;《中华人民共和国刑事诉讼法》第二百一十七条装完逼就跑、第二百二十五条第一款第二项。

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Case regarding Zhang, Shen, and Other Five Persons' Robbery
 张某、沈某某等七人抢劫案
(Case No. 19 of the Supreme People's Procuratorate) (检例第19号)
[Keywords] 【关键词】
Criminal procutorial appeal under procedures at second instance 第二审程序刑事抗诉
Joint crime committed by the minors and adults; separate prosecution; recidivist 未成年人与成年人共同犯罪 分案起诉 累犯
[Basic Facts] 【基本案情】
Defendant surnamed Shen, male, born in January 1995. In March 2010, he was sentenced to a detention of six months with a six-month suspension of execution and a fine of 500 yuan was imposed on him for the crime of robbery. 被告人沈某某,男,1995年1月出生。2010年3月因抢劫罪被判拘役六个月,缓刑六个月,并处罚金五百元。
Defendant surnamed Hu, male, born in April 1995. 被告人胡某某,男,1995年4月出生。
Defendant surnamed Xu, male, born in January 1993. In June 2008, he was sentenced to a fixed-term imprisonment of six months and a fine of 500 yuan was imposed on him for the crime of robbery; and in January 2010, he was sentenced to a fixed-term imprisonment of seven months and a fine of 1,400 yuan was imposed on him for the crime of theft. 被告人许某,男,1993年1月出生。2008年6月因抢劫罪被判有期徒刑六个月,并处罚金五百元;2010年1月因犯盗窃罪被判有期徒刑七个月,并处罚金一千四百元。
The other four defendants surnamed Zhang, Lv, Jiang, and Yang were all adults. 另四名被告人张某、吕某、蒋某、杨某,均为成年人。
For seeking profits, defendant surnamed Zhang introduced Shen, Hu, Lv, and Jiang to acquaint with each other, instigated them to rob mopeds by violent means, provided them with choppers and other instruments of crime, and was responsible for the subsequent disposal and share of the stolen goods. In March 2010, upon convening by Zhang, the defendants surnamed Shen, Hu, Lv, and Jiang, in collusion with the defendants surnamed Xu and Yang, mutually ganged up upon conspiracy and robbed mopeds parking in public places of Shanghai Municipality with choppers, bolt clippers, crowbars, and other instruments of crime. In particular, Zhang, Shen, and Hu participated in four robberies; Lv and Jiang participated in three robberies; Xu participated in two robberies; and Yang participated in one robbery, which were described as follows: 被告人张某为牟利,介绍沈某某、胡某某、吕某、蒋某认识,教唆他们以暴力方式劫取助力车,并提供砍刀等犯罪工具,事后负责联系销赃分赃。2010年3月,被告人沈某某、胡某某、吕某、蒋某经被告人张某召集,并伙同被告人许某、杨某等人,经预谋,相互结伙,持砍刀、断线钳、撬棍等作案工具,在上海市内公共场所抢劫助力车。其中,被告人张某、沈某某、胡某某参与抢劫四次;被告人吕某、蒋某参与抢劫三次;被告人许某参与抢劫二次;被告人杨某参与抢劫一次。具体如下:
(1) Around 11:00 on March 4, 2010, Shen, Hu, Lv, and Jiang arrived at the gate of Gome Store located in No. 699, Changshou Road, Shanghai Municipality by carrying choppers. Lv and Shen pried and tried to steal a black Benling moped parking there. When they were stopped by the victim A, Shen, Hu, and Jiang threatened the victim with a chopper and Shen chopped the victim, causing the victim's minor injury. Afterwards, Lv, Shen and other persons failed to pick the lock and they fled the scene after smashing the shell of the moped. It was authenticated that the moped valued 1,930 yuan. 1.2010年3月4日11时许,沈某某、胡某某、吕某、蒋某随身携带砍刀,至上海市长寿路699号国美电器商场门口,由吕、沈撬窃停放在该处的一辆黑色本凌牌助力车,当被害人甲制止时,沈、胡、蒋拿出砍刀威胁,沈砍击被害人致其轻伤。后吕、沈等人因撬锁不成,砸坏该车外壳后逃离现场。经鉴定,该助力车价值人民币1930元。
(2) Around 12:00 on March 4, 2010, Shen, Hu, Lv, and Jiang arrived at the gate of a temporary vegetable market at the crossing of Laohutai Road and Wanrong Road in Shanghai Municipality in collusion. Hu and Lv pried and tried to steal a white South Yamaha moped parking there. When they were stopped by the victim B, Shen and Jiang threatened the victim with a chopper and Shen chopped the victim, causing the victim's slight injury. Afterwards, Lv and other persons picked the lock and drove the moped away. It was authenticated that the moped valued 2,058 yuan. 2.2010年3月4日12时许,沈某某、胡某某、吕某、蒋某随身携带砍刀,结伙至上海市老沪太路万荣路路口的临时菜场门口,由胡、吕撬窃停放在该处的一辆白色南方雅马哈牌助力车,当被害人乙制止时,沈、蒋等人拿出砍刀威胁,沈砍击被害人致其轻微伤,后吕等人撬开锁将车开走。经鉴定,该助力车价值人民币2058元。
(3) Around 14:00 on March 11, 2010, Shen, Hu, Lv, Jiang, and Xu arrived at the gate of Oriental Pawn located in No. 669, Jiaozhou Road, Shanghai Municipality in collusion by carrying choppers and Shen pried and tried to steal a black Baodiao moped parking there. When they were stopped by the victim C, Hu, Jiang, and Shen forced the victim enter the store of Oriental Pawn with choppers, Xu coordinated with them, Lv assisted in picking the lock, and Hu drove the moped away. It was authenticated that the moped valued 2,660 yuan. 3.2010年3月11日14时许,沈某某、胡某某、吕某、蒋某、许某随身携带砍刀,结伙至上海市胶州路669号东方典当行门口,由沈撬窃停放在该处的一辆黑色宝雕牌助力车,当被害人丙制止时,胡、蒋、沈拿出砍刀将被害人逼退到东方典当行店内,许则在一旁接应,吕上前帮助撬开车锁后由胡将车开走。经鉴定,该助力车价值人民币2660元。
(4) Around 14:00 on March 18, 2010, Shen, Hu, Xu, Yang, and Wang (male, 13 years old) arrived at the parking lot of the exit of Subway Line 7 at the crossing of Shangda Road and Hutai Road in Shanghai Municipality by carrying choppers in collusion. Hu threatened the person responsible for looking after the parking lot with a chopper, Yang coordinated with them, and Shen and Xu robbed three mopeds on the scene. In particular, it was authenticated that the black Zhufeng moped of the victim D valued 2,090 yuan. 4.2010年3月18日14时许,沈某某、胡某某、许某、杨某及王某(男,13岁)随身携带砍刀,结伙至上海市上大路沪太路路口地铁七号线出口处的停车点,由胡持砍刀威胁该停车点的看车人员,杨在旁接应,沈、许等人则当场劫得助力车三辆。其中被害人丁的一辆黑色珠峰牌助力车,经鉴定,该助力车价值人民币2090元。
[Proceedings] 【诉讼过程】
In March and April 2010, Zhang, Lv, Jiang, and Yang as well as three minors surnamed Shen, Hu, and Xu were subject to criminal detention and arrested for being suspected of committing the crime of robbery. On June 21, 2010, Jing'an Branch of the Shanghai Municipal Public Security Bureau concluded the investigation and transferred the case to the People's Procuratorate of Jing'an District for examination and prosecution on the ground that the criminal suspects surnamed Zhang, Shen, Hu, Lv, Jiang, Xu, and Yang were suspected of committing the crime of robbery. Upon examination, the People's Prosecution of Jing'an District held that: although this case concerned joint crimes committed by the minors and adults, considering that several minors in this case were principal criminals in such joint crimes, it was inappropriate to institute separate prosecutions. On September 25, 2010, the People's Procuratorate of Jing'an District instituted a public prosecution in the People's Court of Jing'an District against the aforesaid seven defendants for the crime of robbery. 2010年3、4月,张某、吕某、蒋某、杨某以及三名未成年人沈某某、胡某某、许某因涉嫌抢劫罪先后被刑事拘留、逮捕。2010年6月21日,上海市公安局静安分局侦查终结,以犯罪嫌疑人张某、沈某某、胡某某、吕某、蒋某、许某、杨某等七人涉嫌抢劫罪向静安区人民检察院移送审查起诉。静安区人民检察院经审查认为,本案虽系未成年人与成年人共同犯罪案件,但鉴于本案多名未成年人系共同犯罪中的主犯,不宜分案起诉。2010年9月25日,静安区人民检察院以上述七名被告人犯抢劫罪依法向静安区人民法院提起公诉。
On December 15, 2010, a first instance trial, the People's Court of Jing'an District held that the acts of the aforesaid seven defendants constituted the crime of robbery and Xu was a recidivist. The People's Court of Jing'an District entered a judgment according to the law that: (1) The sentence of the minor defendants was as follows: Shen was sentenced to a fixed-term imprisonment of five years and six months, a fine of 5,000 yuan was imposed on him, and the probation was set aside. It was decided to execute the fixed-term imprisonment of five years and six months and a fine of 5,000 yuan; Hu was sentenced to a fixed-term imprisonment of seven years and a fine of 7,000 yuan was imposed on him; and Xu was sentenced to a fixed-term imprisonment of five years and a fine of 5,000 yuan was imposed on him. (2) The sentence of the adult defendants was as follows: Zhang was sentenced to a fixed-term imprisonment of 14 years with deprival of political rights for two years and a fine of 15,000 yuan was imposed on him; Lv was sentenced to a fixed-term imprisonment of 12 years and six months with deprival of political rights for one year and a fine of 12,000 yuan was imposed on him; Jiang was sentenced to a fixed-term imprisonment of 12 years with deprival of political rights for one year and a fine of 12,000 yuan was imposed on him; and Yang was sentenced to a fixed-term imprisonment of two years and a fine of 2,000 yuan was imposed on him. 2010年12月15日,静安区人民法院一审认为,七名被告人行为均构成抢劫罪,其中许某系累犯。依法判决:(一)对未成年被告人量刑如下:沈某某判处有期徒刑五年六个月,并处罚金人民币五千元,撤销缓刑,决定执行有期徒刑五年六个月,罚金人民币五千元;胡某某判处有期徒刑七年,并处罚金人民币七千元;许某判处有期徒刑五年,并处罚金人民币五千元。(二)对成年被告人量刑如下:张某判处有期徒刑十四年,剥夺政治权利二年,并处罚金人民币一万五千元;吕某判处有期徒刑十二年六个月,剥夺政治权利一年,并处罚金人民币一万二千元;蒋某判处有期徒刑十二年,剥夺政治权利一年,并处罚金人民币一万二千元;杨某判处有期徒刑二年,并处罚金人民币二千元。
On December 30, 2010, the People's Procuratorate of Jing'an District, Shanghai Municipality held that the first instance judgment was erroneous in the application of law and was inappropriate in the sentencing of minor defendants, and it thus filed a procutorial appeal in the No. 2 Intermediate People's Court of Shanghai Municipality according to the law. Zhang appealed on the ground that he did not participate in the robberies and the sentence on him was too severe. On June 16, 2011, the No. 2 Intermediate People's Court of Shanghai Municipality admitted the procutorial appeal opinions in the second instance judgment, rejected the appeal, set aside the sentencing of the defendants in the original instance surnamed Shen, Hu, and Xu for their committing the crime of robbery in the original judgment, and entered a new judgment. 2010年12月30日,上海市静安区人民检察院认为一审判决适用法律错误,对未成年被告人的量刑不当,遂依法向上海市第二中级人民法院提出抗诉。张某以未参与抢劫,量刑过重为由,提出上诉。2011年6月16日,上海市第二中级人民法院二审判决采纳抗诉意见,驳回上诉,撤销原判决对原审被告人沈某某、胡某某、许某抢劫罪量刑部分,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 Jing'an District, Shanghai Municipality held upon examination that: In the first instance judgment, the sentence of a fixed-term imprisonment of seven years on Hu who had relatively light criminal circumstances was unbalanced, and the fines imposed on the minor defendants surnamed Shen, Hu, and Xu were not lenient punishments according to the law. The first instance judgment was erroneous in the application of law and inappropriate in the sentencing. Therefore, the People's Procuratorate of Jing'an District filed a procutorial appeal in the No. 2 Intermediate People's Court of Shanghai Municipality according to the law; and the No. 2 Branch of the People's Procuratorate of Shanghai Municipality supported such procutorial appeal. The grounds for filing a procutorial appeal and supporting the procutorial appeal were as follows: 一审宣判后,上海市静安区人民检察院审查认为,一审判决对犯罪情节相对较轻的胡某某判处七年有期徒刑量刑失衡,对未成年被告人沈某某、胡某某、许某判处罚金刑未依法从宽处罚,属适用法律错误,量刑不当,遂依法向上海市第二中级人民法院提出抗诉;上海市人民检察院第二分院支持抗诉。抗诉和支持抗诉的理由是:
(1) The sentencing in the first instance judgment was unbalanced and the sentence on the defendant surnamed Hu was relatively severe. In this case, the defendants surnamed Hu and Shen participated in four robberies. Although both of them were principal criminals, the social harmfulness and personal dangerousness of Hu's acts were less than those of Shen. In terms of criminal circumstances, in committing the robberies, Shen directly chopped the victims, causing one victim's minor injury and another victim's slight injury; and Hu only threatened the victims with a chopper and picked the locks. In terms of age when the crime was committed, Shen was 15 years old and Hu was under 15. In terms of personal dangerousness, on March 4, 2010, Shen was sentenced to a detention of six months with a six-month suspension of execution for the crime of robbery and during the probation period, Shen committed a new crime; Hu was a first-time offender. In the first instance judgment, Hu was sentenced to a fixed-term imprisonment of seven years and Shen was sentenced to a fixed-term imprisonment of five years and six months for the crime of robbery, which was inappropriate sentencing. 1.一审判决量刑失衡,对被告人胡某某量刑偏重。本案中,被告人胡某某、沈某某均参与了四次抢劫犯罪,虽然均系主犯,但是被告人胡某某行为的社会危害性及人身危险性均小于被告人沈某某。从犯罪情节看,沈某某实施抢劫过程中直接用砍刀造成一名被害人轻伤,一名被害人轻微伤;被告人胡某某只有持刀威胁及撬车锁的行为。从犯罪时年龄看,沈某某已满十五周岁,胡某某尚未满十五周岁。从人身危险性看,沈某某因抢劫罪于2010年3月4日被判处拘役六个月,缓刑六个月,缓刑期间又犯新罪;胡某某系初犯。一审判决分别以抢劫罪判胡某某有期徒刑七年、沈某某有期徒刑五年六个月,属于量刑不当。
(2) The first instance judgment was erroneous in the application of law. The application of sentence of fines on minor defendants reflected neither the lenient punishment according to the law nor the differences in the application of sentence of fines on minor defendants and adult defendants. In accordance with the provisions of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Property-oriented Penalty and the Interpretation of Supreme People's Court on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases involving Minors, a minor that commits a crime should be given a lighter or mitigated penalty with the imposition of a fine. In the first instance judgment, the minor defendants were not given lenient penalties and fines of more than 5,000 yuan were imposed on them according to the standards of fines on adult defendants, and the first instance judgment was erroneous in the application of law. 2.一审判决适用法律错误,对未成年被告人罚金刑的适用既没有体现依法从宽,也没有体现与成年被告人罚金刑适用的区别。根据最高人民法院《关于适用财产刑若干问题的规定》、《关于审理未成年人刑事案件具体应用法律若干问题的解释》的规定,对未成年人犯罪应当从轻或者减轻判处罚金。一审判决对未成年被告人判处罚金未依法从宽,均是按照同案成年被告人罚金的标准判处五千元以上的罚金,属于适用法律错误。
Besides, the first instance judgment on December 21, 2010 was correct in determining that the minor defendant surnamed Xu was a recidivist; however, after the trial of the case, the Criminal Law was amended. In accordance with the relevant provisions of the Amendment (VIII) to the Criminal Law of the People's Republic of China as adopted by the Standing Committee of the National People's Congress in February 2011 and the Interpretation of the Supreme People's Court on the Issue concerning the Retroactivity of the Amendment (VIII) to the Criminal Law of the People's Republic of China as issued in May 2011, the defendant surnamed Xu was under 18 when he committed the crime and therefore, he was not a recidivist according to the law. 此外,2010年12月21日一审判决认定未成年被告人许某系累犯正确,但审判后刑法有所修改。根据2011年2月全国人大常委会通过的《中华人民共和国刑法修正案(八)》和2011年5月最高人民法院《关于<中华人民共和国刑法修正案(八)时间效力问题的解释>》的有关规定,被告人许某实施犯罪时不满十八周岁,依法不构成累犯。
[Final Judgment] 【终审判决】
After the second instance review, the No. 2 Intermediate People's Court of Shanghai Municipality held that: The original judgment was clear in the finding of robbery facts, correct in the determination on the nature, and true and sufficient in evidence. Considering that the position and functions of Hu in the robberies were slightly lower than those of Shen and according to the actual circumstances where a minor criminal should be given a lighter or mitigated penalty if a fine was also imposed on him or her, the original judgment was inappropriate in the principle penalty on Hu and the sentence of fines on Shen, Hu, and Xu, and should be corrected. The procutorial appeal opinions of the procuratorial organ were correct and should be supported. In addition, it was determined according to the law that Xu was not a recidivist. Therefore, the No. 2 Intermediate People's Court of Shanghai Municipality entered a judgment according to the law that: The sentences on the three minor defendants in the original instance surnamed Shen, Hu, and Xu in the first instance judgment should be set aside; Shen should be sentenced to a fixed-term imprisonment of five years and six months and a fine of 2,000 yuan should be imposed on him for the crime of robbery, and the probation should be set aside. It was decided to execute the fixed-term imprisonment of five years and six months and a fine of 2,000 yuan; Hu should be sentenced to a fixed-term imprisonment of five years and a fine of 2,000 yuan should be imposed on him for the crime of robbery; and Xu should be sentenced to a fixed-term imprisonment of four years and a fine of 1,500 yuan should be imposed on him for the crime of robbery. 上海市第二中级人民法院二审认为,原审判决认定抢劫罪事实清楚,定性准确,证据确实、充分。鉴于胡某某在抢劫犯罪中的地位作用略低于沈某某及对未成年犯并处罚金应当从轻或减轻处罚等实际情况,原判对胡某某主刑及对沈某某、胡某某、许某罚金刑的量刑不当,应予纠正。检察机关的抗诉意见正确,应予支持。另依法认定许某不构成累犯。据此,依法判决:撤销一审判决对原审三名未成年被告人沈某某、胡某某、许某的量刑部分;改判沈某某犯抢劫罪,处有期徒刑五年六个月,并处罚金人民币二千元,撤销缓刑,决定执行有期徒刑五年六个月,罚金人民币二千元;胡某某犯抢劫罪,处有期徒刑五年,罚金人民币二千元;许某犯抢劫罪,处有期徒刑四年,罚金人民币一千五百元。
[Key Points] 【要旨】
(1) When handling a case of joint crime committed by minors and adults, the people's court shall, in general, institute separate prosecutions against such minors and adults; however, if the minors are organizers of the criminal gang or principal criminals in other joint crimes, or there are circumstances where it is inappropriate to institute separate prosecutions, the people's court is allowed to not institute separate prosecutions. 1.办理未成年人与成年人共同犯罪案件,一般应当将未成年人与成年人分案起诉,但对于未成年人系犯罪集团的组织者或者其他共同犯罪中的主犯,或者具有其他不宜分案起诉情形的,可以不分案起诉。
(2) When handling a case of joint crime committed by minors and adults, the people's court shall impose lighter or mitigated penalties on such minors according to the law according to the positions and functions of such minors in the joint crime and by taking into full account of such factors as the motives and purposes of criminal activities of such minors, their ages when committing the crime, whether they are first-time offenders or causal offenders, their repentance after committing the crime, and their personal growth experience and performance. 2.办理未成年人与成年人共同犯罪案件,应当根据未成年人在共同犯罪中的地位、作用,综合考量未成年人实施犯罪行为的动机和目的、犯罪时的年龄、是否属于初犯、偶犯、犯罪后的悔罪表现、个人成长经历和一贯表现等因素,依法从轻或者减轻处罚。
(3) A minor that commits a crime is not a recidivist. 3.未成年人犯罪不构成累犯。
[Legal Provisions] 【相关法律规定】

Articles 263, 25, 26, 61, 65, and 77 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、第二十五条、第二十六条、第六十一条、第六十五条、第七十七条;《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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