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Notice of the Supreme People's Court on Issuing the Fourth Group of Guiding Cases [Effective]
最高人民法院关于发布第四批指导性案例的通知 [现行有效]
【法宝引证码】

 
Notice of the Supreme People's Court on Issuing the Fourth Group of Guiding Cases 

最高人民法院关于发布第四批指导性案例的通知


(No. 24 [2013] of the Supreme People's Court)
 
(法〔2013〕24号)


The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region:
 
各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:

Upon discussion and decision of the Judicial Committee of the Supreme People's Court, the case of Wang Zhaocheng, et al.'s illegal transaction and storage of hazardous substances and other three cases (Guiding Cases No. 13-16) are hereby issued as the fourth group of guiding cases for reference in trial of seminal cases.
 
经最高人民法院审判委员会讨论决定,现将王召成等非法买卖、储存危险物质案等四个案例(指导案例13-16号),作为第四批指导性案例发布,供在审判类似案件时参照。

Supreme People's Court
 
最高人民法院

January 31, 2013
 
2013年1月31日

Guiding Case No. 13
 
指导案例13号

Case of Wang Zhaocheng et al.'s illegal trading and storage of hazardous substances
 
王召成等非法买卖、储存危险物质案

(Issued on January 31, 2013 as adopted by the Judicial Committee of the Supreme People's Court after deliberation)
 
(最高人民法院审判委员会讨论通过 2013年1月31日发布)

Keywords:
 
关键词

criminal; illegal trading; storage of hazardous substances; poisonous substances
 
刑事 非法买卖、储存危险物质 毒害性物质

Key Points of Judgment
 
裁判要点

 
1. Sodium cyanide and other highly toxic chemicals under strict state supervision and administration are easy to cause human intoxication or death and have great poisonousness and dangerousness to human body and environment. They are “poisonous” substances as provided in paragraph 2, Article 125 of the Criminal Law. 1.国家严格监督管理的氰化钠等剧毒化学品,易致人中毒或者死亡,对人体、环境具有极大的毒害性和危险性,属于刑法一百二十五条第二款规定的“毒害性”物质。

 
2. The “illegal trading” of poisonous substances refers to an act whereby poisonous substances are purchased or sold without approval of the relevant competent departments and in violation of laws and provisions of the competent state departments. It is unnecessary for this act to have both purchase and selling. 2.“非法买卖”毒害性物质,是指违反法律和国家主管部门规定,未经有关主管部门批准许可,擅自购买或者出售毒害性物质的行为,并不需要兼有买进和卖出的行为。

Relevant Legal Provisions
 
相关法条

Paragraph 2, Article 125 of the Criminal Law of the People's Republic of China
 
中华人民共和国刑法》第一百二十五条第二款

Basic Facts
 
基本案情

The public prosecution organ charged that: Defendants Wang Zhaocheng, Jin Guomiao, Sun Yongfa, Zhong Weidong, and Zhou Zhiming illegally traded sodium cyanide and impaired public security, and the crime was a joint crime. Such defendants should be prosecuted for the criminal liability for the crime of illegal trading of hazardous substances; however, since they have truthfully confessed their crime, their purchase of sodium cyanide was used for electroplating, and no serious consequence was caused, they may be imposed a mitigated penalty. The public prosecutor recommended that probation shall be applied to these five defendants.
 
公诉机关指控:被告人王召成、金国淼、孙永法、钟伟东、周智明非法买卖氰化钠,危害公共安全,且系共同犯罪,应当以非法买卖危险物质罪追究刑事责任,但均如实供述自己的罪行,购买氰化钠用于电镀,未造成严重后果,可以从轻处罚,并建议对五被告人适用缓刑。

The defense counsel of defendant Wang Zhaocheng argued that: Sodium cyanide was a restricted chemical other than a forbidden highly toxic chemical, and it was not poisonous substance. The act of Wang Zhacheng et al. of purchasing sodium cyanide without approval did not comply with the essential conditions as provided in paragraph 2, Article 125 of the Criminal Law. Where no serious consequence is caused, the defendant should not be prosecuted for the criminal liability. Therefore, the defense counsel requested the court to acquit Wang Zhaocheng.
 
被告人王召成的辩护人辩称:氰化钠系限用而非禁用剧毒化学品,不属于毒害性物质,王召成等人擅自购买氰化钠的行为,不符合刑法一百二十五条第二款规定的构成要件,在未造成严重后果的情形下,不应当追究刑事责任,故请求对被告人宣告无罪。

In trial, the court found that: Without legally obtaining a license for purchasing and using highly toxic chemicals, defendants Wang Zhaocheng and Jin Guomiao agreed that Wang Zhaocheng was to purchase sodium cyanide. From October 2006 to the end of 2007, Wang Zhaocheng, in three times, purchased sodium cyanide from Ni Ronghua (dealt with in another case) at the price of 1,000 yuan per barrel, and paid Ni Ronghua 40,000 yuan in total. From August 2008 to the end of 2009, Wang Zhaocheng, in three times, purchased sodium cyanide from Li Guangming (dealt with in another case) at the price of 975 yuan per bag, and paid Li Guangming 117,000 yuan in total. Wang Zhaocheng and Jin Guomiao stored the aforesaid sodium cyanide for electroplating production in the warehouses with lockers of their respective workshops that were undertaken by them in Nanyang Metals Co., Ltd. in Shaoxing City, Zhejiang Province. Among the total amount of sodium cyanide, Wang Zhaocheng used 1/3 and Jin Guomiao used the rest 2/3. In May 2008 and July 2009, defendant Sun Yongfa purchased one barrel and one bag of sodium cyanide separately from Wang Zhaocheng by paying 2,000 yuan in total. In July and August 2008, defendant Zhong Weidong purchased five bags of sodium cyanide from Wang Zhaocheng at the price of 1,000 yuan per bag. In September 2009, defendant Zhou Zhiming purchased three bags of sodium cyanide from Wang Zhaocheng at the price of 1,000 yuan per bag. Sun Yongfa, Zhong Weidong and Zhou Zhiming stored the purchased sodium cyanide in warehouses with lockers or water channels in their respective workshops for electroplating production.
 
法院经审理查明:被告人王召成、金国淼在未依法取得剧毒化学品购买、使用许可的情况下,约定由王召成出面购买氰化钠。2006年10月至2007年年底,王召成先后3次以每桶1000元的价格向倪荣华(另案处理)购买氰化钠,共支付给倪荣华40000元。2008年8月至2009年9月,王召成先后3次以每袋975元的价格向李光明(另案处理)购买氰化钠,共支付给李光明117000元。王召成、金国淼均将上述氰化钠储存在浙江省绍兴市南洋五金有限公司其二人各自承包车间的带锁仓库内,用于电镀生产。其中,王召成用总量的三分之一,金国淼用总量的三分之二。2008年5月和2009年7月,被告人孙永法先后共用2000元向王召成分别购买氰化钠1桶和1袋。2008年7、8月间,被告人钟伟东以每袋1000元的价格向王召成购买氰化钠5袋。2009年9月,被告人周智明以每袋1000元的价格向王召成购买氰化钠3袋。孙永法、钟伟东、周智明购得氰化钠后,均储存于各自车间的带锁仓库或水槽内,用于电镀生产。

Judgment
 
裁判结果

On March 31, 2012, the People's Court of Yuecheng District, Shaoxing City, Zhejiang Province rendered a criminal judgment (No. 205 [2011], First, Criminal Division I, Yuecheng): For the crime of illegally trading and storing hazardous substances, defendant Wang Zhaocheng should be sentenced to a fixed-term imprisonment of three years, with a reprieve of five years; defendant Jin Guomiao should be sentenced to a fixed-term imprisonment of three years, with a reprieve of four years and six months; defendant Zhong Weidong should be sentenced to a fixed-term imprisonment of three years, with a reprieve of four years; defendant Zhou Zhiming should be sentenced to a fixed-term imprisonment of three years, with a reprieve of three years and six months; and defendant Sun Yongfa should be sentenced to a fixed-term imprisonment of three years, with a reprieve of three years. After this judgment was pronounced, the five defendants did not appeal and this judgment has come into force.
 
浙江省绍兴市越城区人民法院于2012年3月31日作出(2011)绍越刑初字第205号刑事判决,以非法买卖、储存危险物质罪,分别判处被告人王召成有期徒刑三年,缓刑五年;被告人金国淼有期徒刑三年,缓刑四年六个月;被告人钟伟东有期徒刑三年,缓刑四年;被告人周智明有期徒刑三年,缓刑三年六个月;被告人孙永法有期徒刑三年,缓刑三年。宣判后,五被告人均未提出上诉,判决已发生法律效力。

Judgment Reason
 
裁判理由

In the effective judgment, the court held that: Knowing that sodium cyanide was a highly toxic chemical, defendants Wang Zhaocheng, Jin Guomiao, Sun Yongfa, Zhong Weidong, and Zhou Zhiming, without obtaining the license for the use of a highly toxic chemical, still illegally traded and stored sodium cyanide in violation of the provisions of the Regulation of the State Council on the Safety Management of Hazardous Chemicals, which has impaired public security. The acts of such defendants have constituted the crime of illegal trade and storage of hazardous substances and it was a joint crime. As to the defensive arguments put forward by the defense counsel of Wang Zhaocheng, upon investigation, it was found that though sodium cyanide was not a forbidden highly toxic chemical, it was a restricted highly toxic chemical that was listed in hazardous chemicals and should be under strict supervision and administration, it was easy to cause human intoxication or death, had great poisonousness and extreme dangerousness to human body and environment, and easily caused major threat and harm to environment and people's life and health. Therefore, it was a “poisonous” substance as provided in paragraph 2, Article 125 of the Criminal Law; the “illegal trading” of poisonous substances refers to an act whereby poisonous substances were purchased or sold without approval of the relevant competent departments and in violation of laws and provisions of the competent state departments, and it was unnecessary to have both purchase and selling; Wang Zhaocheng et al. were not qualified to purchase and store sodium cyanide, but they illegally traded and stored a large amount of highly toxic chemicals in violation of the relevant state regulatory provisions and evaded the safety supervision and administration of the relevant competent departments, which has destroyed the administration order of hazardous chemicals, yielded real threat to people's life, health and property safety, and been enough to impair public security. Therefore, the acts of Wang Zhaocheng et al. have constituted the crime of illegal trade and storage of hazardous substances, and the aforesaid defensive arguments should not be admitted. After Wang Zhaocheng, Jin Guomiao, Sun Yongfa, Zhong Weidong, and Zhou Zhiming were captured, they truthfully confessed their crimes. The sodium cyanide they purchased was used for electroplating production, without causing any accident, serious environmental pollution, or serious consequence. Therefore, they could be given mitigated penalties in accordance with law. According to the crime circumstances and repentance of these five defendants, they could be granted probation in accordance with law. The sentencing proposals put forward by the public prosecution organ and the opinions of Wang Zhaocheng, Zhong Weidong and Zhou Zhiming on request for mitigated penalties were admitted and therefore the aforesaid judgment was rendered in accordance with law.
 
法院生效裁判认为:被告人王召成、金国淼、孙永法、钟伟东、周智明在未取得剧毒化学品使用许可证的情况下,违反国务院《危险化学品安全管理条例》等规定,明知氰化钠是剧毒化学品仍非法买卖、储存,危害公共安全,其行为均已构成非法买卖、储存危险物质罪,且系共同犯罪。关于王召成的辩护人提出的辩护意见,经查,氰化钠虽不属于禁用剧毒化学品,但系列入危险化学品名录中严格监督管理的限用的剧毒化学品,易致人中毒或者死亡,对人体、环境具有极大的毒害性和极度危险性,极易对环境和人的生命健康造成重大威胁和危害,属于刑法一百二十五条第二款规定的“毒害性”物质;“非法买卖”毒害性物质,是指违反法律和国家主管部门规定,未经有关主管部门批准许可,擅自购买或者出售毒害性物质的行为,并不需要兼有买进和卖出的行为;王召成等人不具备购买、储存氰化钠的资格和条件,违反国家有关监管规定,非法买卖、储存大量剧毒化学品,逃避有关主管部门的安全监督管理,破坏危险化学品管理秩序,已对人民群众的生命、健康和财产安全产生现实威胁,足以危害公共安全,故王召成等人的行为已构成非法买卖、储存危险物质罪,上述辩护意见不予采纳。王召成、金国淼、孙永法、钟伟东、周智明到案后均能如实供述自己的罪行,且购买氰化钠用于电镀生产,未发生事故,未发现严重环境污染,没有造成严重后果,依法可以从轻处罚。根据五被告人的犯罪情节及悔罪表现等情况,对其可依法宣告缓刑。公诉机关提出的量刑建议,王召成、钟伟东、周智明请求从轻处罚的意见,予以采纳,故依法作出如上判决。

Guiding Case No. 14
 
指导案例14号

Case of robbery committed by Dong and Song
 
董某某、宋某某抢劫案

(Issued on January 31, 2013 as adopted by the Judicial Committee of the Supreme People's Court after deliberation)
 
(最高人民法院审判委员会讨论通过 2013年1月31日发布)

Keywords:
 
关键词

criminal; crime of robbery; juvenile crime; injunction
 
刑事 抢劫罪 未成年人犯罪 禁止令

Key Points of Judgment
 
裁判要点

The “injunction” may apply to a juvenile defendant who is sentenced to control or granted probation according to the specific circumstances of a crime he or she has committed and the relevance of matters prohibited and crime committed. Where a juvenile is induced to commit a crime due to surffing the Internet, he or she may be prohibited from entering Internet bars and other specific premises within a prescribed time limit.
 
对判处管制或者宣告缓刑的未成年被告人,可以根据其犯罪的具体情况以及禁止事项与所犯罪行的关联程度,对其适用“禁止令”。对于未成年人因上网诱发犯罪的,可以禁止其在一定期限内进入网吧等特定场所。

Relevant Legal Provisions
 
相关法条

Paragraph 2, Article 72 of the Criminal Law of the People's Republic of China
 
中华人民共和国刑法》第七十二条第二款

Basic Facts
 
基本案情

Defendants surnamed Dong and Song (17-years-old at that time) were indulged in video games. They usually went to Internet bars together and frequently stayed out all night. Around 11:00 on July 27, 2010, because their expenses for surfing the Internet were all used up in the Internet bar, the two defendants, in collusion with Wang (who did not attain the age for criminal liability when he committed the crime), went to the fitness equipment area in the Hongqi Commodity, Pingdingshan City, Henan Province, robbed victims surnamed Zhang and Wang by holding a knife, and snatched 5 yuan in cash and one mobile phone away from Zhang. Afterwards, they sold the robbed mobile phone and used the illegal proceeds to log on to the Internet.
 
被告人董某某、宋某某(时年17周岁)迷恋网络游戏,平时经常结伴到网吧上网,时常彻夜不归。2010年7月27日11时许,因在网吧上网的网费用完,二被告人即伙同王某(作案时未达到刑事责任年龄)到河南省平顶山市红旗街社区健身器材处,持刀对被害人张某某和王某某实施抢劫,抢走张某某5元现金及手机一部。后将所抢的手机卖掉,所得赃款用于上网。

Judgment
 
裁判结果

On May 10, 2011, the People's Court of Xinhua District, Pingdingshan City, Henan Province rendered a criminal judgment (No. 29 [2011], First, Criminal Division I, Xinhua) finding defendants Dong and Song guilty of the crime of robbery, sentencing them to a fixed-term imprisonment of two years and six months, with a reprieve of three years respectively, and imposing a fine of 1,000 yuan upon them. At the mean time, Dong and Song were prohibited from entering Internet bars, video game rooms and other premises within 36 months. After this judgment was pronounced, the two defendants did not appeal and this judgment has come into force.
 
河南省平顶山市新华区人民法院于2011年5月10日作出(2011)新刑未初字第29号刑事判决,认定被告人董某某、宋某某犯抢劫罪,分别判处有期徒刑二年六个月,缓刑三年,并处罚金人民币1000元。同时禁止董某某和宋某某在36个月内进入网吧、游戏机房等场所。宣判后,二被告人均未上诉,判决已发生法律效力。

Judgment Reason
 
裁判理由

In the effective judgment, the court held that: Defendants Dong and Song, for the purpose of illegal occupation, robbed other person's property by means of violence and threat, whose acts have constituted the crime of robbery. Seeing that Dong and Song committed the robbery by holding a knife; when they committed the crime, both of them were under 18 years old, it was their first crime, and after being captured, they had good attitude in confession and repentance, and that Song was a student, they satisfied conditions for probation. The court decided to sentence the two defendants to a fixed-term imprisonment of two years and six months, with a reprieve of three years. Considering that the defendants were induced to commit robbery for expenses for going to the Internet bar, they were indulged in video games for a long period and Internet bars and other premises had close contacts with the crime they committed; if the defendants were isolated from premises that induced them to commit a crime, it would facilitate their parents and communities to effectively educate them during the probation period so as to prevent them from committing crime again; and whey they committed the crime, they were under 18 years old and they had poor self-control, if the applied term of the injunction was determined to three years the same as that of probation, it would be good for them to be reformed. Therefore, in the judgment, the two defendants were prohibited from entering Internet bars and other specific premises during the period of probation.
 
法院生效裁判认为:被告人董某某、宋某某以非法占有为目的,以暴力威胁方法劫取他人财物,其行为均已构成抢劫罪。鉴于董某某、宋某某系持刀抢劫;犯罪时不满十八周岁,且均为初犯,到案后认罪悔罪态度较好,宋某某还是在校学生,符合缓刑条件,决定分别判处二被告人有期徒刑二年六个月,缓刑三年。考虑到被告人主要是因上网吧需要网费而诱发了抢劫犯罪;二被告人长期迷恋网络游戏,网吧等场所与其犯罪有密切联系;如果将被告人与引发其犯罪的场所相隔离,有利于家长和社区在缓刑期间对其进行有效管教,预防再次犯罪;被告人犯罪时不满十八周岁,平时自我控制能力较差,对其适用禁止令的期限确定为与缓刑考验期相同的三年,有利于其改过自新。因此,依法判决禁止二被告人在缓刑考验期内进入网吧等特定场所。

Guiding Case No. 15
 
指导案例15号

Xuzhou Construction Machinery Group Co., Ltd. v. Chengdu Chuanjiao Industry and Trade Co., Ltd., et al. (Sales contract dispute)
 
徐工集团工程机械股份有限公司诉成都川交工贸有限责任公司等买卖合同纠纷案

(Issued on January 31, 2013 as adopted by the Judicial Committee of the Supreme People's Court after deliberation)
 
(最高人民法院审判委员会讨论通过 2013年1月31日发布)

Keywords:
 
关键词

civil; affiliated companies; personality confusion; joint and several liability
 
民事 关联公司 人格混同 连带责任

Key Points of Judgment
 
裁判要点

 
1. Where there is overlapping or confusion in staff members, business and financial affairs of affiliated companies, which causes failure to differentiate each other's property and loss of independent personality, personality confusion is constituted. 1.关联公司的人员、业务、财务等方面交叉或混同,导致各自财产无法区分,丧失独立人格的,构成人格混同。

 
2. Where the personality confusion of affiliated companies seriously damage the interests of creditors, affiliated companies shall mutually assume joint and several liability for external debts. 2.关联公司人格混同,严重损害债权人利益的,关联公司相互之间对外部债务承担连带责任。

Relevant Legal Provisions
 
相关法条

Article 4 of the General Principles of the Civil Law of the People's Republic of China
 
中华人民共和国民法通则》第四条

Paragraph 1 of Article 3 and paragraph 3 of Article 20 of the Company Law of the People's Republic of China
......
 
中华人民共和国公司法》第三条第一款、第二十条第三款
......

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