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Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Issuing Guiding Opinions on Certain Issues concerning Handling of Criminal Cases Involving Organizations of a Gangland Nature and Gang-like Groups
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最高人民法院、最高人民检察院、公安部、司法部印发《关于办理黑恶势力犯罪案件若干问题的指导意见》的通知
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Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Issuing Guiding Opinions on Certain Issues concerning Handling of Criminal Cases Involving Organizations of a Gangland Nature and Gang-like Groups | | 最高人民法院、最高人民检察院、公安部、司法部印发《关于办理黑恶势力犯罪案件若干问题的指导意见》的通知 |
(No. 1 [2018] of the Supreme People's Court) | | (法发〔2018〕1号) |
The higher people's courts, the people's procuratorates, the public security departments (bureaus), and the justice departments (bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court and the Military Procuratorate of the People's Liberation Army; the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region; and the People's Procuratorate, the Public Security Bureau, and the Justice Bureau of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市高级人民法院、人民检察院、公安厅(局)、司法厅(局),解放军军事法院、军事检察院,新疆维吾尔自治区高级人民法院生产建设兵团分院、新疆生产建设兵团人民检察院、公安局、司法局: |
For the purposes of implementing the spirit of the Notice of the CPC Central Committee and the State Council on Launching the Special Fight against Organizations of a Gangland Nature and Gang-like Groups, harmonizing the thinking on law enforcement, enhancing law enforcement efficacy, lawfully, accurately and powerfully punishing crimes involving organizations of a gangland nature and gang-like groups, and strictly cracking down on "village bullies," "clan gang-like groups," "umbrellas," "non-physical violence," and other crimes, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice developed the Guiding Opinions on Certain Issues concerning Handling of Criminal Cases Involving Organizations of a Gangland Nature and Gang-like Groups, which are hereby issued to you in order for you to conduct conscientious implementation and distribute them to the political and legal affairs entities at county or regiment level as soon as possible. | | 为贯彻落实《中共中央、国务院关于开展扫黑除恶专项斗争的通知》精神,统一执法思想,提高执法效能,依法、准确、有力惩处黑恶势力犯罪,严厉打击“村霸”、宗族恶势力、“保护伞”以及“软暴力”等犯罪,最高人民法院、最高人民检察院、公安部、司法部制定了《关于办理黑恶势力犯罪案件若干问题的指导意见》。现印发给你们,请认真贯彻执行,并尽快下发至县团级政法单位。 |
January 16, 2018 | | 2018年1月16日 |
Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Certain Issues concerning Handling of Criminal Cases Involving Organizations of a Gangland Nature and Gang-like Groups | | 最高人民法院、最高人民检察院、公安部、司法部关于办理黑恶势力犯罪案件若干问题的指导意见 |
For the purposes of implementing the spirit of the Notice of the CPC Central Committee and the State Council on Launching the Special Fight against Organizations of a Gangland Nature and Gang-like Groups, harmonizing the thinking on law enforcement, enhancing law enforcement efficacy, lawfully, accurately and powerfully punishing crimes involving organizations of a gangland nature and gang-like groups, and strictly cracking down on "village bullies," "clan gang-like groups," "umbrellas," "non-physical violence," and other crimes, according to the Criminal Law, the Criminal Procedure Law, relevant judicial interpretations, and other provisions, in light of the new situations and new problems encountered in the practice, the following guiding opinions on certain issues concerning handling of criminal cases involving organizations of a gangland nature and gang-like groups are hereby developed: | | 为贯彻落实《中共中央、国务院关于开展扫黑除恶专项斗争的通知》精神,统一执法思想,提高执法效能,依法、准确、有力惩处黑恶势力犯罪,严厉打击“村霸”、宗族恶势力、“保护伞”以及“软暴力”等犯罪,根据《刑法》、《刑事诉讼法》及有关司法解释等规定,针对实践中遇到的新情况、新问题,现就办理黑恶势力犯罪案件若干问题制定如下指导意见: |
I. General requirements | | 一、总体要求 |
1. People's courts, people's procuratorates, public security departments and justice departments of at all levels shall give full play to their functions and roles, cooperate closely, support each other, restrict each other, join forces for the crackdown, and strengthen the building of a long-term mechanism for preventing and punishing crimes involving organizations of a gangland nature and gang-like groups. The law shall be correctly used to intensify the punishment of illegal acts and crimes involving organizations of a gangland nature and gang-like groups and "umbrellas," the spirit of lawful and severe punishment shall be reflected in the stages including investigation, prosecution, trial, and execution, bail pending trial shall be strictly controlled, non-prosecution shall be strictly controlled, probation, commutation, and parole shall be strictly controlled, the application conditions for medical treatment outside jail on bail shall be strictly controlled, the provisions of the General Principles of the Criminal Law on joint crimes and crime syndicates shall be fully used to intensify punishment, and qualification-related punishment and property-related punishment shall be fully used to reduce the possibility of recidivism. For crimes involving organizations of a gangland nature and gang-like groups, attention shall be paid to parallel and joint judgment as well as profound and thorough investigation, it shall be prevented to handle cases for case handling's sake, and handling shall be accelerated according to the law. Handling cases according to the law shall be adhered to, statutory standards shall be upheld, a trial-centered approach shall be adhered to, legal supervision shall be tightened, procedural awareness and evidence awareness shall be heightened, the relationship between "crackdown at the early and emerging stage" and "accurate and solid crackdown" shall be correctly grasped, and the criminal policy of tempering justice with strictness shall be implemented, so as to practically achieve the goal that there is basis for strictness and leniency, hand out punishment matching crimes, and realize the unity of political effects, legal effects, and social effects. | | 1.各级人民法院、人民检察院、公安机关和司法行政机关应充分发挥职能作用,密切配合,相互支持,相互制约,形成打击合力,加强预防惩治黑恶势力犯罪长效机制建设。正确运用法律规定加大对黑恶势力违法犯罪以及“保护伞”惩处力度,在侦查、起诉、审判、执行各阶段体现依法从严惩处精神,严格掌握取保候审,严格掌握不起诉,严格掌握缓刑、减刑、假释,严格掌握保外就医适用条件,充分运用《刑法》总则关于共同犯罪和犯罪集团的规定加大惩处力度,充分利用资格刑、财产刑降低再犯可能性。对黑恶势力犯罪;注意串并研判、深挖彻查,防止就案办案,依法加快办理。坚持依法办案、坚持法定标准、坚持以审判为中心,加强法律监督,强化程序意识和证据意识,正确把握“打早打小”与“打准打实”的关系,贯彻落实宽严相济刑事政策,切实做到宽严有据,罚当其罪,实现政治效果、法律效果和社会效果的统一。 |
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2. People's courts, people's procuratorates, public security departments, and justice departments at all levels shall focus on key regions, industries and fields where crimes involving organizations of a gangland nature and gang-like groups are prominent and pay particular attention to combating organizations of a gangland nature and gang-like groups threatening political security, especially state agency security and system security, and infiltrating into the political field; organizations of a gangland nature and gang-like groups controlling primary-level state agencies, manipulating and undermining primary-level elections, monopolizing rural resources, or embezzling collective assets; organizations of a gangland nature and gang-like groups, such as "village bullies" using family or clan influence to oppress the neighborhood, dominates an area, and bully and cruelly injure or kill people; organizations of a gangland nature and gang-like groups inciting disturbance in the process of land expropriation, land lease, demolition and relocation, and construction of engineering projects, among others; organizations of a gangland nature and gang-like groups soliciting projects by force, bidding in bad faith, taking illegal possession of land, and minerals plundering in construction projects, transportation, mineral resources, fishing, and other industries and fields; organizations of a gangland nature and gang-like groups, such as market bullies and industry bullies tyrannizing their peers, forcing trade, and collecting protection money in fairs, wholesale markets, stations and wharfs, and tourist attractions, among others; organizations of a gangland nature and gang-like groups controlling or operating "prostitution, gambling, drugs," and other illegal and criminal activities; organizations of a gangland nature and gang-like groups illegally issuing high-interest rate loans and violently collecting debts; organizations of a gangland nature and gang-like groups intervening in civil disputes and acting as "underground law enforcement teams"; organizations of a gangland nature and gang-like groups arranging for or hiring Internet commentators to perform online threats, intimidation, insults, defamation, and harassment; and overseas organizations of a gangland nature and gang-like groups developing in and infiltrating into China and cross-border and transnational organizations of a gangland nature and gang-like groups. The “umbrellas” of organizations of a gangland nature and gang-like groups shall be resolutely hunted down. | | 2.各级人民法院、人民检察院、公安机关和司法行政机关应聚焦黑恶势力犯罪突出的重点地区、重点行业和重点领域,重点打击威胁政治安全特别是政权安全、制度安全以及向政治领域渗透的黑恶势力;把持基层政权、操纵破坏基层换届选举、垄断农村资源、侵吞集体资产的黑恶势力;利用家族、宗族势力横行乡里、称霸一方、欺压残害百姓的“村霸”等黑恶势力;在征地、租地、拆迁、工程项目建设等过程中煽动闹事的黑恶势力;在建筑工程、交通运输、矿产资源、渔业捕捞等行业、领域,强揽工程、恶意竞标、非法占地、滥开滥采的黑恶势力;在商贸集市、批发市场、车站码头、旅游景区等场所欺行霸市、强买强卖、收保护费的市霸、行霸等黑恶势力;操纵、经营“黄赌毒”等违法犯罪活动的黑恶势力;非法高利放贷、暴力讨债的黑恶势力;插手民间纠纷,充当“地下执法队”的黑恶势力;组织或雇佣网络“水军”在网上威胁、恐吓、侮辱、诽谤、滋扰的黑恶势力;境外黑社会入境发展渗透以及跨国跨境的黑恶势力。同时,坚决深挖黑恶势力“保护伞”。 |
II. Determining and punishing crimes committed by organizations of a gangland nature in accordance with the law | | 二、依法认定和惩处黑社会性质组织犯罪 |
3. An organization of a gangland nature shall have the organizational characteristic, economic characteristic, behavioral characteristic, and harmful characteristic as specified in the paragraph 2, Article 294 of the Criminal Law. Since in reality not all these four characteristics of many organizations of a gangland nature are obvious, the internal relationship between the four characteristics of organizations of a gangland nature shall, in the specific determination of them, be carefully examined and analyzed according to the legislative intent, so as to accurately assess the social harm caused by case-related criminal organizations and achieve non-miscarriage of justice and non-escape from justice. | | 3.黑社会性质组织应同时具备《刑法》第二百九十四条第五款中规定的“组织特征”“经济特征”“行为特征”和“危害性特征”。由于实践中许多黑社会性质组织并非这“四个特征”都很明显,在具体认定时,应根据立法本意,认真审查、分析黑社会性质组织“四个特征”相互间的内在联系,准确评价涉案犯罪组织所造成的社会危害,做到不枉不纵。 |
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4. An act of initiating or establishing an organization of a gangland nature, or merging, splitting, or reorganizing said organization shall be determined as “organizing an organization of a gangland nature”; and an act of actually making decisions on, directing, coordinating, or managing the development, operation, or activities of the entire organization shall be determined as “leading an organization of a gangland nature.” The organizers and leaders of organizations of a gangland nature include those with clear posts and titles appointed in certain forms and de facto ones recognized in such organizations. | | 4.发起、创建黑社会性质组织,或者对黑社会性质组织进行合并、分立、重组的行为,应当认定为“组织黑社会性质组织”;实际对整个组织的发展、运行、活动进行决策、指挥、协调、管理的行为,应当认定为“领导黑社会性质组织”。黑社会性质组织的组织者、领导者,既包括通过一定形式产生的有明确职务、称谓的组织者、领导者,也包括在黑社会性质组织中被公认的事实上的组织者、领导者。 |
5. A person who knows or should know that it is an organization whose basic activity is to commit a crime, and still joins and accepts its leadership and management shall be determined as "getting involved in an organization of a gangland nature." A person who, without the will to join an organization of a gangland nature, is employed by a company, enterprise, or association established by said organization but not involved in its illegal and criminal activities shall not be determined to "get involved in an organization of a gangland nature." | | 5.知道或者应当知道是以实施违法犯罪为基本活动内容的组织,仍加入并接受其领导和管理的行为,应当认定为“参加黑社会性质组织”。没有加入黑社会性质组织的意愿,受雇到黑社会性质组织开办的公司、企业、社团工作,未参与黑社会性质组织违法犯罪活动的,不应认定为“参加黑社会性质组织”。 |
A person who is involved in an organization of a gangland nature and has any of the following circumstances shall generally be determined to “actively get involved in an organization of a gangland nature”: actively getting involved in the illegal and criminal activities of an organization of a gangland nature, or actively getting involved in more serious criminal activities of an organization of a gangland nature and playing a prominent role, or otherwise playing a prominent role in the organization, such as taking the specific charge of financial, personnel management, or any other matter of an organization of a gangland nature. | | 参加黑社会性质组织并具有以下情形之一的,一般应当认定为“积极参加黑社会性质组织”:多次积极参与黑社会性质组织的违法犯罪活动,或者积极参与较严重的黑社会性质组织的犯罪活动且作用突出,以及其他在组织中起重要作用的情形,如具体主管黑社会性质组织的财务、人员管理等事项。 |
6. An organization that has continuously existed for a certain period since its formation shall be determined to be “formed as a relatively stable criminal organization.” | | 6.组织形成后,在一定时期内持续存在,应当认定为“形成较稳定的犯罪组织”。 |
As it is difficult to form an organization of a gangland nature whose members are in a relatively large number in a short time, and it is a gradual process for gang-like groups and criminal syndicates to develop into an organization of a gangland nature, without an obvious point of transformation of nature, it is inappropriate to make general provisions on the time of existence and number of members of organizations of a gangland nature. | | 黑社会性质组织一般在短时间内难以形成,而且成员人数较多,但鉴于“恶势力”团伙和犯罪集团向黑社会性质组织发展是一个渐进的过程,没有明显的性质转变的节点,故对黑社会性质组织存在时间、成员人数问题不宜作出“一刀切”的规定。 |
If an organization of a gangland nature has not held an inauguration ceremony or a similar activity, the formation time may be determined according to the time when the landmark event that is sufficient to reflect its preliminary formation of illegal influence occurs. In the absence of an obvious landmark event, the time for the organizer, the leader and other members of the organization to jointly conduct the criminal activity of the organization for the first time may be determined as the formation time of the organization in accordance with the provisions of these Opinions on the scope of determination of illegal and criminal activities of organizations of a gangland nature. If the organizer or leader is not prosecuted because he/she has not been taken into custody, or is dead, or has any other statutory circumstances, the determination shall not be affected. | | 黑社会性质组织未举行成立仪式或者进行类似活动的,成立时间可以按照足以反映其初步形成非法影响的标志性事件的发生时间认定。没有明显标志性事件的,可以按照本意见中关于黑社会性质组织违法犯罪活动认定范围的规定,将组织者、领导者与其他组织成员首次共同实施该组织犯罪活动的时间认定为该组织的形成时间。该组织者、领导者因未到案或者因死亡等法定情形未被起诉的,不影响认定。 |
Members of an organization of a gangland nature include those who have not been taken into custody though there are sufficient evidence and those who have committed the act of getting involved in an organization of a gangland nature but have not been prosecuted for not attaining the age of criminal liability, or for other statutory circumstances, or who have specific circumstances that are not dealt with as crime. | | 黑社会性质组织成员既包括已有充分证据证明但尚未归案的组织成员,也包括虽有参加黑社会性质组织的行为但因尚未达到刑事责任年龄或因其他法定情形而未被起诉,或者根据具体情节不作为犯罪处理的组织成员。 |
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7. A person who gains economic interests by the following means in the process of formation and development of an organization shall be determined to “gain economic interests by organized illegal or criminal activities or other means”: | | 7.在组织的形成、发展过程中通过以下方式获取经济利益的,应当认定为“有组织地通过违法犯罪活动或者其他手段获取经济利益”: |
(1) Gathering by organized illegal or criminal activities or other illicit means. | | (1)有组织地通过违法犯罪活动或其他不正当手段聚敛; |
(2) Gaining in an organized manner, through legal production and operations, by investment, holding, shareholding, partnership, or any other means. | | (2)有组织地以投资、控股、参股、合伙等方式通过合法的生产、经营活动获取; |
(3) Gaining by provision from members of the organization or the sponsorship from any other entity, organization, or individual. | | (3)由组织成员提供或通过其他单位、组织、个人资助取得。 |
8. Gaining a certain amount of economic interests by the aforesaid means shall be determined as “having certain economic strength,” including the capability to mobilize economic resources of a certain size to support the activities of the organization. The economic interests gained by the aforesaid means, even if individually controlled by members of the organization, shall be included in the "economic strength" of the organization of a gangland nature. If a member of the organization voluntarily uses part of his/her individual or family assets to support the organization's activities, all his/her individual or household assets may be included in the “certain economic strength,” unless the amount is significantly small, or only the right to use movable or movable property is provided. | | 8.通过上述方式获得一定数量的经济利益,应当认定为“具有一定的经济实力”,同时也包括调动一定规模的经济资源用以支持该组织活动的能力。通过上述方式获取的经济利益,即使是由部分组织成员个人掌控,也应计入黑社会性质组织的“经济实力”。组织成员主动将个人或者家庭资产中的一部分用于支持该组织活动,其个人或者家庭资产可全部计入“一定的经济实力”,但数额明显较小或者仅提供动产、不动产使用权的除外。 |
Due to large differences in the level of economic development in different regions and the profit margins of different industries as well as those in time of existence and development of organizations of a gangland nature, it is generally not necessary to requir at case handling that the economic strength in the possession of an organization of a gangland nature must reach a certain size or a specific amount. | | 由于不同地区的经济发展水平、不同行业的利润空间均存在很大差异,加之黑社会性质组织存在、发展的时间也各有不同,在办案时不能一般性地要求黑社会性质组织所具有的经济实力必须达到特定规模或特定数额。 |
9. The illegal and criminal activities carried out by organizations of a gangland nature include non-violent activities, but violence or threat of violence has always been a basic means for organizations of a gangland nature to conduct illegal and criminal activities and may be put into action at any time. Means which, though not obviously violent or of threat, actually depending on the power, influence, and criminal capabilities of the organization, based on the realistic possibility of violence and threat, are sufficient to cause fear or panic to another person and finally psychological coercion, or to affect or restrict the freedom of the person, endanger the safety of the person and property, or affect normal production, work, or life, shall be the “other means” in paragraph 5 (3), Article 294 of the Criminal Law, including without limitation the so-called "negotiation," "consultation," and "mediation" and such means as nuisance, harassment, noise making, and gathering people to show strength. | | 9.黑社会性质组织实施的违法犯罪活动包括非暴力性的违法犯罪活动,但暴力或以暴力相威胁始终是黑社会性质组织实施违法犯罪活动的基本手段,并随时可能付诸实施。暴力、威胁色彩虽不明显,但实际是以组织的势力、影响和犯罪能力为依托,以暴力、威胁的现实可能性为基础,足以使他人产生恐惧、恐慌进而形成心理强制或者足以影响、限制人身自由、危及人身财产安全或者影响正常生产、工作、生活的手段,属于《刑法》第二百九十四条第五款第(三)项中的“其他手段”,包括但不限于所谓的“谈判”“协商”“调解”以及滋扰、纠缠、哄闹、聚众造势等手段。 |
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10. Conducting illegal and criminal activities many times in order to establish, maintain, or expand an organization's power, influence, interests, or in accordance with the disciplines, rules, or organizational practices, as a way to infringe on the personal rights, democratic rights, or property rights of unspecified individuals, or undermine economic or social order, shall be determined as "committing organized illegal or criminal activities many times to do evil and bully and cruelly injure or kill people." | | 10.为确立、维护、扩大组织的势力、影响、利益或者按照纪律规约、组织惯例多次实施违法犯罪活动,侵犯不特定多人的人身权利、民主权利、财产权利,破坏经济秩序、社会秩序,应当认定为“有组织地多次进行违法犯罪活动,为非作恶,欺压、残害群众”。 |
Activities under any of the following circumstances shall be determined as illegal and criminal activities conducted by an organization of a gangland nature: | | 符合以下情形之一的,应当认定为是黑社会性质组织实施的违法犯罪活动: |
(1) Conducted in order to compete for sphere of influence for the organization, fight against competitors, form strong position, seek economic interests, establish illegal authority, expand illegal influence, seek illegal protection, or enhance criminal capabilities. | | (1)为该组织争夺势力范围、打击竞争对手、形成强势地位、谋取经济利益、树立非法权威、扩大非法影响、寻求非法保护、增强犯罪能力等实施的; |
(2) Conducted in accordance with the organization's disciplines, rules, or practices. | | (2)按照该组织的纪律规约、组织惯例实施的; |
(3) Conducted as directly organized, planned, instructed, or participated by the organizer or leader. | | (3)组织者、领导者直接组织、策划、指挥、参与实施的; |
(4) Conducted by a member of the organization in its name and approved or connived by the organizer or leader. | | (4)由组织成员以组织名义实施,并得到组织者、领导者认可或者默许的; |
(5) Jointly conducted by more than one member of the organization to show strength and fight for hegemony, intervene in a dispute, retaliate against another person, commit crime for another person, or illegally amass a fortune and approved or connived by the organizer or leader. | | (5)多名组织成员为逞强争霸、插手纠纷、报复他人、替人行凶、非法敛财而共同实施,并得到组织者、领导者认可或者默许的; |
(6) Other activities which shall be determined to be conducted by an organization of a gangland nature. | | (6)其他应当认定为黑社会性质组织实施的。 |
11. In view of the flexibility of the size of the "certain area" illegally controlled and influenced by an organization of a gangland nature, it cannot be simply required that the "certain area" must reach a certain spatial extent, but comprehensive analysis and judgment shall be made based on specific circumstances, by taking into account the harm of the organization of a gangland nature to the economic and social life order. | | 11.鉴于黑社会性质组织非法控制和影响的“一定区域”的大小具有相对性,不能简单地要求“一定区域”必须达到某一特定的空间范围,而应当根据具体案情,并结合黑社会性质组织对经济、社会生活秩序的危害程度加以综合分析判断。 |
Dominating an area by conducting illegal and criminal activities, or taking advantage of the harboring or unlawful performance of duties by state functionaries to permit an organization of a gangland nature to conduct illegal and criminal activities, under any of the following circumstances, may be determined as "forming an illegal control or significant influence in a certain area or industry, which seriously disrupts the economic and social order." ...... | | 通过实施违法犯罪活动,或者利用国家工作人员的包庇或者不依法履行职责,放纵黑社会性质组织进行违法犯罪活动的行为,称霸一方,并具有以下情形之一的,可认定为“在一定区域或者行业内,形成非法控制或者重大影响,严重破坏经济、社会生活秩序”: ...... |
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