>>>welcome 河南大学, You have logged in.
Logout History Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
Yang Peifu v. People's Procuratorate of Yangcheng County, Shanxi Province (Application for Criminal Compensation)
杨培富申请刑事赔偿案
【法宝引证码】
  • Type of Dispute: Administrative-->Administrative Scope
  • Legal document: Decision
  • Judgment date: 11-02-1998
  • Procedural status: Other
  • Source: SPC Gazette,Issue 4,1999

Yang Peifu v. People’s Procuratorate of Yangcheng County, Shanxi Province (Application for Criminal Compensation)
(Application for Criminal Compensation)
杨培富申请刑事赔偿案

Yang Peifu v. People's Procuratorate of Yangcheng County, Shanxi Province
(Application for Criminal Compensation)

 

杨培富申请刑事赔偿案

BASIC FACTS 
Claimant to Compensation: Yang Peifu, male, born on December 16, 1958, native of Yangcheng County, Shanxi Province, presently working for the Public Security Bureau of Yangcheng County, Shanxi Province. 赔偿请求人:杨培富,男,1958年12月16日出生,山西省阳城县人,现在山西省阳城县公安局工作。
Organ Liable for Compensation: People's Procuratorate of Yangcheng County, Shanxi Province. 赔偿义务机关:山西省阳城县人民检察院。
Legal Representative: Wang Hongrui, chief procurator. 法定代表人:王洪瑞,检察长。
Yang Peifu (claimant to compensation, hereinafter referred to as Yang) filed an application letter for criminal compensation with the Compensation Committee of the Intermediate People's Court of Jincheng, Shanxi Province (hereinafter referred to as the Compensation Committee) on December 29, 1997 on the ground that he was wrongly arrested and detained by the People's Procuratorate of Yangcheng County, Shanxi Province (hereinafter referred to as Yangcheng County Procuratorate) for 380 days, and claimed against Yangcheng County Procuratorate for compensation of all his wages for the period of the custody, as well as a total amount of 24,800 yuan of economic losses including the retainer, the travel expenses and the loss due to missed working time during his appeal to higher authorities for help. In addition, he request Yangcheng County Procuratorate to eliminate the ill effects, resume his reputation and make an apology within Yangcheng County. 赔偿请求人杨培富以曾经被山西省阳城县人民检察院错误逮捕、关押380天为由,于1997年12月29日向山西省晋城市中级人民法院赔偿委员会递交刑事赔偿申请书,要求阳城县人民检察院赔偿其被关押期间的全部工资,赔偿其聘请律师费用和上访期间的差旅费、误工费等经济损失共计24800元,并且要求在阳城县范围内为其消除影响、恢复名誉和赔礼道歉。
It was found out by the Compensation Committee after trial: 晋城市中级人民法院赔偿委员会经审理查明:
Yang, along with Wang and Yuan (offenders in the same case) was arrested by Yangcheng County Procuratorate on March 29, 1994 because of cutting 1.75 KM of electric lines (weighing 1.15 tons) of the telephone line which connected the county seat of Yangcheng and Dongfanghong Factory and which had not been used for more than three years. He was bailed out on April 12, 1995 upon decision of the People's Court of Yangcheng County to await trial, and was detained for 380 days during that period. 赔偿请求人杨培富与同案人王某某、元某某因切割从阳城县城通往东方红厂、三年多时间未使用的电话线路中的1.75公里电线(重1.15吨)一事,被阳城县人民检察院于1994年3月29日逮捕,1995年4月12日由阳城县人民法院决定取保候审,期间被羁押380天。
After trying the case on the offence of Yang, et al. on sabotaging communication equipment in the first instance, the People's Court of Yangcheng County decided to pronounce the three defendants innocent on April 6, 1995 on the ground that the main evidence of the three defendants' joint intentional crime was insufficient. After Yangcheng County Procuratorate protested on the ground that “the three defendants have criminal conspiracy”, the Intermediate People's Court held after the trial of the second instance that: the telephone lines cut by the defendants had been dismantled by the Post Office because Dongfanghong Factory defaulted the phone bills for long after relocation; accordingly, the defendants' acts did not endanger the public security in respect of communication, and did not constitute the crime of sabotaging communication equipment, either; furthermore, it was after getting prior consent of the Post Office and being identified by Yuan (who was a staff member of the Post Office and also a defendant in the present case) that Yang and Wang cut the telephone lines when they thought the line belonged to the Post Office. Subjectively, they had no intention of illegally possessing the properties, thus their acts did not constitute the crime of larceny, but belonged to civil tort, and the offenders should bear civil liability for compensation. Therefore, the court made the final ruling on June 1, 1995 to reject the protest and to affirm the judgment of the first instance. On May 20, 1996, the People's Procuratorate of Shanxi Province lodged a protest on the ground that “the line may be started up at any time upon application, and shall be deemed as a line in operation; the three defendants conspired earlier to cut and steal the circuit, and thus have committed the crime of sabotaging communication equipment.” The higher People's Court of Shanxi Province (hereinafter referred to as Shanxi Higher Court) held after the post-final retrial: No matter whether Dongfanghong Factory's telephone line could be re-started up or whether the Factory prepared to apply for re-starting up, the line had in fact been left unused for three years before it was cut, and thus should not be deemed as a line in operation. The term “prior conspiracy” as mentioned by the prosecuting organ referred to the fact that the defendants met with each other for once. In fact, they met for the purpose of making sure whether the line was not in use. It was exactly due to this reason that Yuan went to the business room on the second day to inquire about the use of the line, and immediately told Wang of the fact. Then, Wang immediately went to look for partners. The prosecuting organ had all along thought that the meeting was conspiracy, but did not supplement the evidence on conspiracy even after the case had been returned by the court for several times for supplementary investigation. The evidence for determining that the three defendants “clearly knew the circumstance” and “conspired with each other” was insufficient, and their respective acts did not constitute any crime; meanwhile, the cut did not involve public security in respect of communication, nor did it have the character of theft. Therefore, their acts did not constitute the crime of sabotaging communication equipment or the crime of larceny. Shanxi Higher Court ruled as follows on January 2, 1997: The protest shall be rejected, and the judgment of the first instance shall be affirmed. 杨培富等破坏通讯设备一案经阳城县人民法院一审后,以认定三名被告人共同故意犯罪的主要证据不充分为由,于1995年4月6日判决宣告三名被告人无罪。阳城县人民检察院以“三名被告人有犯罪的共谋”为由提出抗诉后,晋城市中级人民法院二审认为:本案被告人切割的电话线,因东方红厂搬迁后长期拖欠通话费,已经被邮电局作拆机处理,因此被告人的行为不危及通讯方面的公共安全,故不构成破坏通讯设备罪;且杨培富与王某某是在事先通过邮电局同意,并由同为本案被告人的邮电局职工元某某指认后,当时认为该线路的产权属于邮电局的情况下才实施切割行为,主观上不存在非法据为己有的故意,因此也不构成盗窃罪。该行为属于民事侵权,应当由行为人承担民事赔偿责任。故于1995年6月1日终审裁定:驳回抗诉,维持原判。1996年5月20日,山西省人民检察院以“该线路是随时申请都可以启用的线路,应当视为正在运行的线路;三被告人事先经过密谋盗割此线路,因此构成破坏通讯设备罪”为由,对此案提出抗诉。山西省高级人民法院再审议为:无论东方红厂的电话线路是否可以重新启用或者该厂是否准备申请重新启用,由于该线路被切割时,事实上是已经闲置三年未用的线路,因此都不能视为正在运行的线路。检察机关所说的事先密谋,是指被告人事先见面一次。此次见面,是被告人想弄清该线路是否停用。正由于这个原因,才有元某某第二日到营业室查询线路使用情况,并当即告诉给王某某,王某某得知后立即去找人的举动。检察机关一直认为此次见面是密谋,经法院多次退回补充侦查后也没有补上密谋的证据。认定三人“明知”和“共谋”的证据不足,三人各自的行为又不能构成犯罪的犯罪,切割行为不涉及通讯方面的公共安全,也不具有秘密窃取的特征,故不构成破坏通讯设备罪或者盗窃罪。据此,山西省高级人民法院于1997年1月2日裁定:驳回抗诉,维持原判。
Yang therefore applied to Yangcheng County Procuratorate for criminal compensation on December 29, 1997, and Yangcheng County Procuratorate notified Yang on February 20, 1998 of the refusal to make any compensation on the grounds that Yang's cut of the telephone line was distinctly slight and should not be deemed as a crime, and conformed to the circumstance prescribed in Item (3) of Article 17 of the “Law of the People's Republic of China on State Compensation” under which the state should not bear the liability for compensation. Yang was dissatisfied and applied to the People's Procuratorate of Jincheng for reconsideration on March 4, of the same year but the Procuratorate did not make any reply within the time limit. 赔偿请求人杨培富据此于1997年12月29日向阳城县人民检察院申请刑事赔偿,阳城县人民检察院于1998年2月20日以杨培富切割电话线路的行为显著轻微,不认为是犯罪,属于《中华人民共和国国家赔偿法》第十七条第(三)项规定的国家不承担赔偿责任的情形为由,杨培富不服,于同年3月4日向晋城市人民检察院申请复议,该院逾期未作答复。
JUDGMENT'S REASONING 
The Compensation Committee held: 晋城市中级人民法院赔偿委员会认为:
After the case on Yang's sabotaging communication equipment had been heard by the trial organs at three levels, Yang was confirmed as innocent. Yangcheng County Procuratorate mis-arrested Yang without any criminal fact, and thus Yang was entitled to apply for compensation in accordance with Item (2) of Article 15 of the Law on State Compensation. Yangcheng County Procuratorate as the organ liable for compensation should make compensation in accordance with Paragraph 1 of Article 20 都拉黑名单了,还接个Pof the Law on State Compensation. The judgments made by the people's courts at three levels were the confirmation of Yang's innocence, and did not contain any content saying that Yang's offence was distinctly slight and should not be deemed as a crime. Yangcheng County Procuratorate's ground for refusing to make the compensation by citing the liability exemption clause in the Law on State Compensation could not be tenable, and its “Notice on Examination of the Application for Criminal Compensation” to Yang should be revoked. 赔偿请求人杨培富因破坏通讯设备一案,经三级审判机关审理后,均确认其无罪。阳城县人民检察院对没有犯罪事实的杨培富错误逮捕,杨培富有权依照国家赔偿法十五条第(二)项的规定,申请取得赔偿。赔偿义务机关阳城县人民检察院应当依照国家赔偿法二十条第一款的规定,给予赔偿。三级人民法院的判决,是对杨培富没有犯罪事实的确认,其中并无认为杨培富犯罪情节显著轻微,不认为是犯罪的内容。阳城县人民检察院引用国家赔偿法规定的免责条款拒绝赔偿,理由不能成立,该院对杨培富 作出的“审查刑事赔偿申请通知书”应当撤销。
Yang was mis-arrested before the Law on State Compensation came into force, and was not released until the Law on State Compensation had already come into force. Article 1 of the “Reply of the Supreme People's Court on the Retroactivity of the Law of the People's Republic of China on State Compensation and the Issue on the Scope of Cases to Be Accepted by the Compensation Committees of People's Courts” prescribes: “For the cases occurred before December 31, 1994 but continued after January 1, 1995, and lawfully confirmed, …the part of compensation payable by December 31, 1994 … shall be paid with reference to the Law on State Compensation下跌你应该笑还是哭”. 赔偿请求人杨培富被错误逮捕的事实,发生于国家赔偿法施行之前,延续至国家赔偿法施行之后。根据最高人民法院《关于〈中华人民共和国国家赔偿法〉溯及力和人民法院赔偿委员会受案范围问题的批复》第一条规定:“发生在1994年12月31日以前但持续至1995年1月1日以后,并经依法确认的,………属于1994年12月31日以前应予赔偿的部分,………参照《国家赔偿法》的规定予以赔偿”。
Article 26 of the Law on State Compensation prescribes: “If the personal freedom of a citizen is infringed upon, compensatory payment for each day shall be assessed in accordance with the State average daily pay of staff and workers in the previous year.” The Supreme People's Court interpreted the term “last year” in the “Interpretation on Several Issues for People's Courts to Implement the Law of the People's Republic of China on State Compensation” (No. 15 [1996]) as follows: (Last year) shall be the last year when the organ liable for compensation, the reconsideration organ or the compensation committee of the people's court made the decision on compensation. In the present case, Yang had been detained for 380 days from the date when he was arrested to the date when he was released upon bail to await trial. If the daily average wage of each employee in 1997 was calculated at 25.47 yuan, Yang should be entitled to receive 9,678.60 yuan of compensation. 国家赔偿法
不接我们电话 也不给拒接原因
二十六条规定:“侵犯公民人身自由的,每日的赔偿金按照国家上年度职工日平均工资计算。”最高人民法院在《关于人民法院执行〈中华人民共和国国家赔偿法〉几个问题的解释》(法发〔1996〕15号)第六条中对“上年度”所作的解释是:应为赔偿义务机关、复议机关或者人民法院赔偿委员会作出赔偿决定时的上年度。赔偿请求人杨培富自被逮捕之日起至取保候审之日止,共被羁押380天。按照1997年度职工日平均工资25.47元计算,应当赔偿9678.60元。
Article 30 of the Law on State Compensation prescribes: “If the presence of any of the circumstances stipulated in Items 1 and 2 of Article 3 and Items 1, 2 and 3 of Article 15 of this Law has been lawfully confirmed and victim's reputation and honor were injured, the organ liable for compensation shall, within the scope of influence of the tortious act, eliminate the ill effects for the victim, rehabilitate his reputation, and make an apology.” Yang's claim that Yangcheng County Procuratorate should, within Yangcheng County, eliminate the ill effects and resume the reputation for him as well as make an apology to him, had legal basis and should be upheld. Yang's claim against Yangcheng County Procuratorate for compensation of his economic losses including the retainer, the travel expenses and the loss due to missed working time during his appeal to higher authorities for help, had no legal basis and should not be upheld. 国家赔偿法三十条规定:“赔偿义务机关对依法确认有本办法第三条第(一)、(二)项、第十五条第(一)、(二)、(三)项规定的情形之一,并造成受害人名誉权、荣誉权损害的,应当在侵权行为影响的范围内,为受害人消除影响,恢复名誉,赔礼道歉。”赔偿请求人杨培富要求阳城县人民检察院在阳城县范围内为其消除影响、恢复名誉和赔礼道歉,于法有据,应当支持。杨培富要求阳城县人民检察院赔偿其聘请律师费用和上访期间的差旅费、误工费等经济损失,没有法律依据,不予支持。
JUDGMENT 
To sum up, the Compensation Committee made the decision as follows on November 2, 1998: 综上,晋城市中级人民法院赔偿委员会于1998年11月2日作出决定:
1. The “Notice on Examination of the Application for Criminal Compensation” made by Yangcheng County Procuratorate on February 20, 1998 should be revoked. 一、撤销阳城县人民检察院1998年2月20日作出的“审查刑事赔偿申请通知书”。
2. Yangcheng County Procuratorate should pay 9,678.60 Yuan of compensation to Yang for the actual detainment of 380 days. And 二、阳城县人民检察院支付杨培富被实际关押380天的赔偿金9678.60元。
3. Yangcheng County Procuratorate should, within Yangcheng County, eliminate the ill effects and resume reputation for Yang as well as make an apology to Yang. 三、阳城县人民检察院在阳城县范围内为杨培富消除影响、恢复名誉、赔礼道歉。
The Compensation Committee's decision has been implemented.

 晋城市中级人民法院赔偿委员会的此项决定,已经执行。
 

     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese