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| Notice of the Supreme People's Procuratorate on Issuing the First Set of Guiding Cases | | 最高人民检察院关于印发第一批指导性案例的通知 |
(No. 12 [2010] of the Supreme People's Procuratorate) | |
(高检发研字[2010]12号) |
The people's procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government; the military procuratorates; and the People's Procuratorate of Xinjiang Construction and Production 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： |
As deliberated and decided at the 53rd Meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on December 15, 2010, the following three cases, including a case about gang fights by Shi and other 16 persons, a case about abduction by Xin Yuanlong and a case about practicing favoritism and making falsehood by Lin Zhibin in granting temporary serving of sentence outside prison, are hereby issued to you for reference. | |
经2010年12月15日最高人民检察院第十一届检察委员会第五十三次会议讨论决定，现将施某某等17人聚众斗殴案、忻元龙绑架案和林志斌徇私舞弊暂予监外执行案等三个案例印发你们，供参考。 |
Supreme People's Procuratorate | |
最高人民检察院 |
December 31, 2010 | |
2010年12月31日 |
Crime of gang fights by Shi and other 16 persons | |
施某某等17人聚众斗殴案 |
(Case No. 1 of the Supreme People's Procuratorate) | |
(检例第1号) |
[Key Point] | |
【要旨】 |
When handling criminal cases arising out of mass events, the procuratorial organs shall, from the perspective of settling social conflicts, look deep into the complex factors behind such cases, handle them with caution according to law, and actively participate in mediation and settlement of disputes, to promote social harmony and realize the integration of legal effects and social effects. | |
检察机关办理群体性事件引发的犯罪案件，要从促进社会矛盾化解的角度，深入了解案件背后的各种复杂因素，依法慎重处理，积极参与调处矛盾纠纷，以促进社会和谐，实现法律效果与社会效果的有机统一。 |
[Basic Facts] | |
【基本案情】 |
Shi and other eight criminal suspects were from Xicen Village, Yongning Town, Shishi City, Fujian Province. | |
犯罪嫌疑人施某某等9人系福建省石狮市永宁镇西岑村人。 |
Li and other seven criminal suspects were from Ziying Village, Yongning Town, Shishi City, Fujian Province. | |
犯罪嫌疑人李某某等8人系福建省石狮市永宁镇子英村人。 |
Xicen Village and Ziying Village, adjacent in Yongning Town, Shishi City, Fujian Province, once had a good relationship, but recently, there had been disputes between them over land use and drainage. To settle such disputes, the Government of Yongning Town organized personnel to perform construction in the area where disputes over land use and drainage existed, but had to stop construction due to obstructions many times. At 8 a.m. of December 17, 2008, the town government organized some town officers and a construction team to perform construction again. At 9 a.m., Shi and other eight criminal suspects and dozens of villagers from Xicen Village came to the construction scene, wearing hard hats and carrying bags of stones, sticks, spades and other instruments. Later, Li and other seven criminal suspects and dozens of villagers from Ziying Village also arrived at the construction scene, carrying sticks and spades. They confronted villagers of Xicen Village, and both sides started to fling abuses and stones to each other. Police officers from the Public Security Bureau of Shishi City arrived at the scene, and tried to persuade both parties to dismiss. However, some villagers continued fling abuses and stones, causing damage to two police vehicles (with an assessed loss of 761 yuan) and hand injury to three police officers (not up to the standard for a slight injury after identification). | |
福建省石狮市永宁镇西岑村与子英村相邻，原本关系友好。近年来，两村因土地及排水问题发生纠纷。永宁镇政府为解决两村之间的纠纷，曾组织人员对发生土地及排水问题的地界进行现场施工，但被多次阻挠未果。2008年12月17日上午8时许，该镇组织镇干部与施工队再次进行施工。上午9时许，犯罪嫌疑人施某某等9人以及数十名西岑村村民头戴安全帽，身背装有石头的袋子，手持木棍、铁锹等器械到达两村交界处的施工地界，犯罪嫌疑人李某某等8人以及数十名子英村村民随后也到达施工地界，手持木棍、铁锹等器械与西岑村村民对峙．双方互相谩骂、 互扔石头。出警到达现场的石狮市公安局工作人员把双方村民隔开并劝说离去，但仍有村民不听劝说，继续叫骂并扔掷石头，致使二辆警车被砸损(经鉴定损失价值人民币761元)，三名民警手部被打伤(经鉴定均未达轻微伤)。 |
[Proceedings] | |
【诉讼过程】 |
After this case occurred, the Public Security Bureau of Shishi City requested the People's Procuratorate of Shishi City to approve arrests of Shi and eight others from Xicen Village and Li and seven others from Ziying Village who were actively involved in the fights on charges of gang fights. To prevent situations from getting worse and create beneficial factors for settling disputes, when deciding to approve arrests of the aforesaid criminal suspects according to law, the People's Procuratorate of Shishi City also suggested that the public security organ and the relevant departments jointly assist the villagers' committees of both villages in settling disputes. On March 16, 2010, the Public Security Bureau of Shishi City transferred this case to the People's Procuratorate of Shishi City for prosecution examination. When handling this case, the People's Procuratorate of Shishi City, focusing on the key issue of unraveling feud, set up a dispute settlement task force to try to settle disputes between the two villages. With support from the local party committee, people's congress and government, the task force visited the local party committee and government of Yongning Town many times, carefully surveyed the disputed area, communicated with the villagers' committees, and made plans. After coordination, the local town government sought advice from experts, and performed construction in the disputed area according to the drainage and sewage planning of the town. From the perspectives of traffic safety and environmental protection, fences and sidewalks were built around the disputed drainage conduits, as part of the unified planning of the town government. The aforesaid measures were generally accepted by villagers from both villages. During the period of dispute settlement, the task force also patiently explained laws and policies in detail, and paid attention to soothe villagers. Villagers involved in this case and their family members regretted their gang fights as a means to settle disputes. They all showed willingness for reconciliation. On April 23, 2010, the villagers' committees of Xicen Village and Ziying Village signed a reconciliation agreement, and the persons involved in this case also signed a letter of commitment to refraining from such acts and abiding by law. So far, the disputes between these two villages had been properly settled, and the deep-rooted cause for such disputes had been eliminated. | |
案发后，石狮市公安局对积极参与斗殴的西岑村施某某等9人和子英村李某某等8人以涉嫌聚众斗殴罪向石狮市人民检察院提请批准逮捕。为避免事态进一步扩大，也为矛盾化解创造有利条件，石狮市人民检察院在依法作出批准逮捕决定的同时，建议公安机关和有关部门联合两村村委会做好矛盾化解工作，促成双方和解。2010年3月16日，石狮市公安局将本案移送石狮市人民检察院审查起诉。石狮市人民检察院在办案中，抓住化解积怨这一关键，专门成立了化解矛盾工作小组，努力促成两村之间矛盾的化解。在取得地方党委、人大、政府支持后，工作小组多次走访两村所在的永宁镇党委、政府，深入两村争议地点现场查看，并与村委会沟通，制订工作方案。随后协调镇政府牵头征求专家意见并依照镇排水、排污规划对争议地点进行施工，从交通安全与保护环境的角度出发，在争议的排水沟渠所在地周围修建起护栏和人行道，并纳入镇政府的统一规划。这一举措得到了两村村民的普遍认同。化解矛盾工作期间，工作小组还耐心、细致地进行释法说理、政策教育、情绪疏导和思想感化等工作，两村相关当事人及其家属均对用聚众斗殴这种违法行为解决矛盾纠纷的做法进行反省并表示后悔，都表现出明确的和解意愿。20lO年4月23日，西岑村、子英村两村村委会签订了两村和解协议，涉案人员也分别出具承诺书，表示今后不再就此滋生事端，并保证遵纪守法。至此，两村纠纷得到妥善解决，矛盾根源得以消除。 |
In the view of the People's Procuratorate of Shishi City, Shi and other 16 persons had violated the provisions of Articles 292.1 and 25.1 of the Criminal Law of the People's Republic of China, and should be punished for the crime of gang fights. However, considering that Shi and other 16 persons participated in the gang fights not for personal enmity or regional control, only insignificant property loss and personnel injuries were caused, there were no serious consequences, the two villagers' committees reached a reconciliation agreement and Shi and other 16 persons signed a letter of commitment, under the principle of combining punishment with education and from the perspective of promoting social harmony, on April 28, 2010, the People's Procuratorate of Shishi City decided not to prosecute Shi and other 16 persons in accordance with Article 142.2 of the Criminal Procedure Law of the People's Republic of China. | |
石狮市人民检察院认为：施某某等17人的行为均已触犯了《中华人民共和国刑法》第二百九十二条第一款、第二十五条第一款之规定，涉嫌构成聚众斗殴罪，依法应当追究刑事责任。鉴于施某某等17人参与聚众斗殴的目的并非为了私仇或争霸一方，且造成的财产损失及人员伤害均属轻微，并未造成严重后果；两村村委会达成了和解协议，施某某等17人也出具了承诺书，从惩罚与教育相结合的原则出发以及有利于促进社会和谐的角度考虑，2010年4月28日，石狮市人民检察院根据《中华人民共和国刑事诉讼法》第一百四十二条第二款之规定，决定对施某某等17人不起诉。 |
Crime of abduction by Xin Yuanlong | |
忻元龙绑架案 |
(Case No. 2 of the Supreme People's Procuratorate) | |
(检例第2号) |
[Key Point] | |
【要旨】 |
When filing a protest concerning a death penalty, the procuratorial organs shall correctly understand the death penalty conditions, apply a strict probative standard, and legally perform their duty of supervision over criminal trials. | |
对于死刑案件的抗诉，要正确把握适用死刑的条件，严格证明标准，依法履行刑事审判法律监督职责。 |
[Basic Facts] | |
【基本案情】 |
Defendant: Xin Yuanlong, male, Han Chinese, born on February 1, 1959, from Ningbo City, Zhejiang Province, with an educational background of senior high school, under criminal detention since September 15, 2005 for the crime of abduction, and arrested on September 27, 2005. | |
被告人忻元龙，男，1959年2月1日出生，汉族，浙江省宁波市人，高中文化。2005年9月l5日，因涉嫌绑架罪被刑事拘留，2005年9月27日被逮捕。 |
Unable to make ends meet, Xin Yuanlong came up with the idea of abduction and extorting money from the victim's parents. He cased several places of Cixi City, Zhejiang Province to look for potential victims. On the morning of August 18, 2005, Xin Yuanlong drove his Tongbao van (plate number: Zhe B3C751) from Ningbo City to the neighborhood of the Seniors University (located at Tuanquan Branch Road, Hushan Sub-district, Cixi City), and waited for a chance of abduction. Around 1 p.m., he saw a girl (Yang, born on June 1, 1996, a third-grader of Hushan East Gate Elementary School of Cixi City, Zhejiang Province, at the age of 9 when murdered) pass by alone with a schoolbag. He lured Yang into his van by saying that “Teacher Chen is expecting you”, covered her with a plastic tub, and drove to the back hill of “Qianhu Folks” in Dongqianhu Town, Ningbo City. Around 10 p.m., after cheating Yang of the cell phone number of her father and her home phone number, Xin Yuanlong drove to a shelter at Suanshan Village, Xiqi Town, Beilun District, Ningbo City, killed Yang by covering her mouth and nose, and buried her body. On August 19, Xin Yuanlong arrived by train at Guangde County, Anhui Province, and bought a BIRD1220 cell phone there. After midnight on August 20, he dialed the home phone number of Yang, claiming that he had abducted Yang and asking Yang's father to go to Changxing County, Huzhou City, Zhejiang Province before 6 p.m. on August 25 with a ransom of 600,000 yuan for her daughter. Afterwards, Xin Yuanlong took a train to Wuhu City, Anhui Province to dial another ransom call. However, because he lost the note recording the phone numbers, he could not remember the last four digits of Yang's home phone number, 2353. He tried 7353, but the person on the other side answered with a Ningbo accent. Because Yang's father spoke Mandarin, Xin Yuanlong suspected that police might have been notified, and stopped extorting money. On September 15, 2005, he was captured by the public security organ, and confessed to his abducting and killing Yang. He led police officers to the crime scene, where human remains were dug up. The police also picked up two hairs of Yang from Xin Yuanlong's Tongbao van (plate number: Zhe B3C751). Upon DNA test, it was confirmed that both the human remains and the hairs belonged to Yang. The police seized one BIRD1220 cell phone from Xin Yuanlong.
．．．．．． | |
被告人忻元龙因经济拮据而产生绑架儿童并勒索家长财物的意图，并多次到浙江省慈溪市进行踩点和物色被绑架人。2005年8月l8日上午，忻元龙驾驶自己的浙B3C751通宝牌面包车从宁波市至慈溪市浒山街道团圈支路老年大学附近伺机作案。当日下午1时许，忻元龙见女孩杨某某(女，1996年6月1日出生。浙江省慈溪市浒山东门小学三年级学生，因本案遇害，殁年9岁)背着书包独自一人经过，即以“陈老师找你”为由将杨某某骗上车，将其扣在一个塑料洗澡盆下，开车驶至宁波市东钱湖镇“钱湖人家”后山。当晚lO时许，忻元龙从杨某某处骗得其父亲的手机号码和家中的电话号码后，又开车将杨某某带至宁波市北仑区新碶镇算山村防空洞附近，采用捂口、鼻的方式将杨某某杀害后掩埋。8月19日，忻元龙乘火车到安徽省广德县购买了一部波导1220型手机，于20日凌晨O时许拨打杨某某家电话，称自己已经绑架杨某某并要求杨某某的父亲于当月25日下午6时前带60万元赎金到浙江省湖州市长兴县交换其女儿。尔后，忻元龙又乘火车到安徽省芜湖市打勒索电话，因其将记录电话的纸条丢失，将被害人家的电话号码后四位2353误记为7353，电话接通后听到接电话的人操宁波口音，而杨某某的父亲讲普通话，由此忻元龙怀疑是公安人员已介入，遂停止了勒索。2005年9月15日忻元龙被公安机关抓获，忻元龙供述了绑架杀人经过，并带领公安人员指认了埋尸现场，公安机关起获了一具尸骨，从其渐B3C751通宝牌面包车上提取了杨某某头发两根(经法医学DNA检验鉴定，是被害人杨某某的尸骨和头发)。公安机关从被告人忻元龙处扣押波导1220型手机一部。
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