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The People's Procuratorate of Lion Mountain District, Tongling City v. Zha Congyu and Huang Baogen (Case of Illegal Trading of Explosives)
铜陵市狮子山区人民检察院诉查从余、黄保根非法买卖爆炸物案
【法宝引证码】
  • Type of Dispute: Criminal-->Endangering Public Security
  • Legal document: Ruling
  • Judgment date: 11-05-2004
  • Procedural status: Other
  • Source: SPC Gazette,Issue 5,2005

The People’s Procuratorate of Lion Mountain District, Tongling City v. Zha Congyu and Huang Baogen (Case of Illegal Trading of Explosives)
(Case of Illegal Trading of Explosives)
铜陵市狮子山区人民检察院诉查从余、黄保根非法买卖爆炸物案

The People's Procuratorate of Lion Mountain District, Tongling City v. Zha Congyu and Huang Baogen
(Case of Illegal Trading of Explosives)

 

铜陵市狮子山区人民检察院诉查从余、黄保根非法买卖爆炸物案

 【裁判摘要】
 被告人非法买卖炸药的行为,已构成非法买卖爆炸物罪,但鉴于其确因生活所需非法买卖炸药,没有造成严重社会危害,经教育确有悔改表现,可以在法定刑以下判处刑罚。
Criminal Verdict of the Supreme People's Court 中华人民共和国最高人民法院
 刑事裁定书
Criminal Review No.216 [2004] (2004)刑复字第216号
BASIC FACTS 
Defendant: Zha Congyu, male, born on September 16, 1957, Han nationality, from Tongling County, Anhui, with the educational background of primary school graduate, blaster with the Stone Materials Factory of Chaitang Village, West Lake Town, Lion Mountain Area of Tongling City, living in the Nonglin Administrative Village, Xihu Town, Lion Mountain Area of Tongling City. He was arrested on November 5, 2003, and was under detention now. 被告人查从余,男,1957年9月16日出生,汉族,安徽省铜陵县人,小学文化,铜陵市狮子山区西湖镇柴塘村石料厂放炮员,住铜陵市狮子山区西湖镇农林行政村。 2003年11月5日被逮捕。现在押。
Defendant: Huang Baogen (also called Huang Baogen), male, born on January 12, 1966, Han nationality, from Tongling county, Anhui Province, with the educational background of primary school graduate, a farmer living in the Nonglin Administrative Village, Xihu Town, Lion Mountain District of Tongling City. He was arrested on November 5, 2003, and was under detention now. 被告人黄保根(又名黄宝根),男,1966年1月12日出生,汉族,安徽省铜陵县人,小学文化,农民,住铜陵市狮子山区西湖镇农林行政村。2003年11月5日被逮捕。现在押。
The People's Court of Lion Mountain District, Tongling City, heard the case of prosecution that was instituted by the Lion Mountain District People's Procuratorate of Tongling City against the defendants Zha Congyu and Huang Baogen, of committing the crime of illegal trading of explosives by Criminal Judgment No. 8 [2004] of the First Instance of Criminal Suit on March 3, 2004, and convicted the defendants Zha Congyu and Huang Baogen of the crime of illegal trading of explosives, and sentenced them to fixed term of imprisonment for ten years respectively, and deprived of their political rights for one year. After the case was adjudicated, Zha Congyu and Huang Baogen were not satisfied with the judgment and both of them appealed. Tongling Intermediate People's Court convicted the defendants Zha Congyu and Huang Baogen of committing the crime of illegal trading of explosives by Criminal Judgment No. 17 [2004] of the Final Instance of Criminal Suit of Tongling Intermediate People's Court on May 31, 2004, and sentenced Zha Congyu to fixed-term imprisonment of three years, which is below the statutory penalty; and sentenced Huang Baogen to fixed-term imprisonment of three years, which is below the statutory penalty, but to be reprieved for three years. The Higher People's Court of Anhui Province approved the judgment after review and reported to this Court for approval according to law. This Court formed a collegial bench to hold a review according to law. The review has now been concluded. 安徽省铜陵市狮子山区人民法院审理铜陵市狮子山区人民检察院指控被告人查从余、黄保根犯非法买卖爆炸物罪一案,于 2004年3月3日以(2004)狮刑初字第8号刑事判决,认定被告人查从余、黄保根犯非法买卖爆炸物罪,分别判处有期徒刑十年,剥夺政治权利一年。宣判后,查从余、黄保根不服,均提出上诉。铜陵市中级人民法院于2004年5月31日以(2004)铜中刑终字第17号刑事判决,认定被告人查从余、黄保根犯非法买卖爆炸物罪,在法定刑以下判处查从余有期徒刑三年;在法定刑以下判处黄保根有期徒刑三年,缓刑三年。安徽省高级人民法院经复核同意并依法报请本院核准。本院依法组成合议庭,对本案进行了复核。现已复核终结。
It is ascertained upon review that: On October 23, 2003, the defendant Huang Baogen, who, for the purpose of repairing houses for his elder brother who was disabled, asked the defendant Zha Congyu to help him purchase explosives for the use of blasting stones at mountains, and Zha agreed. Thereafter, Zha, who, availing himself of the convenience for undertaking the job as a blaster with the Stone Materials Factory, brought home 12 kilogram explosives from the rock type powder emulsified explosives he obtained. In the evening of October 27 of the same year, Huang picked up the explosives from Zha's home, and paid RMB 100 Yuan to Zha. Huang was arrested by the public security organ when he was on his way home with the explosives he carried with him. 经复核确认:2003年10月23日,被告人黄保根为了给其有残疾的哥哥维修房屋,让被告人查从余帮其购买炸药,用于上山炸石头,查从余答应帮忙。此后,查从余利用在石料厂从事放炮工作的便利,从领取的岩石型粉状乳化炸药中将12千克炸药带回家。同年10月27日晚,黄保根到查从余家取炸药后,付给查从余人民币100元。黄保根在携带炸药回家的途中被公安机关抓获。
The aforesaid facts were supported by the seized explosives and the expert's conclusions, the list of explosive issuance, and the testimony of the witness. And the defendants Zha and Huang also confessed to them, which were sufficient enough for determination. 上述事实,有查获的炸药及鉴定结论、炸药发放清单和证人证言证实。被告人查从余、黄保根亦供认,足以认定。
JUDGMENT'S REASONING 
This Court held that the act of illegal trading of explosives by the defendants Zha and Huang had constituted the crime of illegal trading of explosives. And the circumstance of illegal trading of explosives was serious, and they shall be punished according to law. Considering that Zha and Huang traded the explosives really due to the need of living, and did not result in serious social harmfulness, and they really had the behavior of repentance after being educated, so the two defendants may be sentenced below the statutory penalty. The courts of the first and second instances clearly determined the facts, and the evidences thereof were reliable and sufficient, and the conviction was accurate. The procedures for the hearing were legitimate. The sentence made by the court of second instance was proper. This Court ruled as follows in accordance with paragraph Two of Article 63 我能说我还比较喜欢洗碗吗of the Criminal Law of the People's Republic of China and the provisions of Article 270
下跌你应该笑还是哭
of the Interpretations of the Supreme People's Court on Some Issues concerning the Implementation of the Criminal Procedure Law of the People's Republic of China:
 本院认为,被告人查从余、黄保根非法买卖炸药的行为,已构成非法买卖爆炸物罪。非法买卖爆炸物情节严重,应依法惩处。鉴于查从余、黄保根确因生活所需非法买卖炸药,没有造成严重社会危害,经教育确有悔改表现,对二被告人可以在法定刑以下判处刑罚。一、二审判决认定的事实清楚,证据确实、充分,定罪准确。审判程序合法。二审判决量刑适当。依照《中华人民共和国刑法》第六十三条第二款和《最高人民法院关于执行<中华人民共和国刑事诉讼法>若干问题的解释》第二百七十条法小宝的规定,裁定如下:
JUDGMENT 
We approve the Criminal Judgment No.17 [2004] of the Final Trial of Criminal Suit of Tongling Intermediate People's Court of Anhui Province on the conviction of the defendants Zha and Huang's crime of illegal trading of explosives with a fixed-term imprisonment of three years to the defendant Zha, and a fixed-term imprisonment of three years to the defendant Huang, but to be reprieved for three years; and the illegal proceeds RMB 100 Yuan shall be recovered. 核准安徽省铜陵市中级人民法院 (2004)铜中刑终字第17号以非法买卖爆炸物罪判处被告人查从余有期徒刑三年;判处被告人黄保根有期徒刑三年,缓刑三年;非法所得人民币100元予以追缴的刑事判决。
The ruling of this court shall take legal effect after it is served to the defendants. 本裁定送达后即发生法律效力。
Chief Justice: Ren Xiancheng 审判长   任宪成
Judge: Wang Guixiao 审判员   王桂霄
Acting Judge: Dong Bei 代理审判员 董 蓓
November 5, 2004 二00四年十一月五日
Clerk: Liu Shiqian

 书记员   刘世倩
 

     
     
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