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Case of Petitioning the Intermediate People's Court of Nanping City for Criminal Compensation by Zheng Chuanzhen (Case of petitioning for criminal compensation)
郑传振申请南平市中级人民法院刑事赔偿案
【法宝引证码】

Case of Petitioning the Intermediate People’s Court of Nanping City for Criminal Compensation by Zheng Chuanzhen (Case of petitioning for criminal compensation)
(Case of petitioning for criminal compensation)
郑传振申请南平市中级人民法院刑事赔偿案

Case of Petitioning the Intermediate People's Court of Nanping City for Criminal Compensation by Zheng Chuanzhen

 

郑传振申请南平市中级人民法院刑事赔偿案

BASIC FACTS 
Claimant for Compensation: Zheng Chuanzhen, male, 53 years old, resident of Fuqing City, Fujian Province, former person in charge of the freight transfer yard stationed in Shaikou, Shaowu City of the state-run Beidou Forestry Disafforestation and Cultivation Site of Taining County, Fujian Province 赔偿请求人:郑传振,男,53岁,福建省福清市人,原系福建省泰宁县国营北斗林业采育场驻邵武晒口中转发货场负责人。
Authorized Agent: Wu Yexing, lawyer from the Law Firm of Taining County 委托代理人:伍业兴,泰宁县律师事务所律师。
Organ with Indemnifying Obligation: the Intermediate People's Court of Nanping City, Fujian Province 赔偿义务机关:福建省南平市中级人民法院。
Legal Representative: Xu Zhicong, president of the court 法定代表人:许枝聪,院长。
The claimant for compensation, Zheng Chuanzhen (hereinafter referred to as Zheng), was dissatisfied with the decision of the Intermediate People's Court of Nanping City, Fujian Province on not granting state compensation and submitted a petition for reconsideration to the Higher People's Court of Fujian Province. 赔偿请求人郑传振不服福建省南平市中级人民法院不予国家赔偿的决定,向福建省高级人民法院提出复议申请。
Zheng claimed that: the original judgment on me made by the Intermediate People's Court of Nanping City was a joinder of punishments for plural crimes, I was not declared as completely innocent in the retrial, but it was adjudicated in the retrial that larceny shall be cancelled. As for larceny, I was innocent. In accordance with the provisions of Item (3) of Article 15 and Article 19 of the Law of the People's Republic of China on State Compensation, the Intermediate People's Court of Nanping City shall cancel its decision on not granting compensation and make compensation according to law. 赔偿请求人郑传振称:南平市中级人民法院对我的原判是数罪并罚,再审虽然没有改判全案无罪,但是认为盗窃罪不成立,予以撤销。就盗窃罪而言,我是无罪的,依照《中华人民共和国国家赔偿法》第十五条第(三)项和第十九条的规定,南平市中级人民法院应当撤销不予赔偿的决定,依法予以赔偿。
Upon trial, the compensation committee of the Higher People's Court of Fujian Province verified that: it was determined in the penal sentence of the first instance made by the People's Court of Shaowu City on May 14th, 1991 that: Zheng, without obtaining the license, purchased 25.932 cubic meters of logs with the price of 400 yuan/cubic meter in November 1988 and sold them to the Furniture Factory of Fengtai County, Anhui Province at the price of 500 yuan/cubic meter after changing the quantity of the logs to 29.035 cubic meters, thus obtained profits of 4148.30 yuan, his act constituted the crime of illegal speculation and profiteering and he shall be sentenced to a fixed-term imprisonment of one year. On December 27th of the same year, Zheng sold the 33.142 cubic meters of wood stockpiled by the village and town construction and building materials company of Jianyang District at Shaikou freight yard of Shaowu City, which constituted larceny, he shall be sentenced to a fixed-term imprisonment of 7 years. Zheng shall be subject to a joinder of punishments for plural crimes, namely, a fixed-term imprisonment of 7 years and 6 months (from October 30th, 1989 to April 29th, 1997); the illicit money of 42992.16 yuan shall be recovered from him and returned to the village and town construction and building materials company of Nanping District; its illegal gains of 2124.89 yuan and the amount of 1331.60 yuan recovered from the Furniture Factory of Fengtai County shall be confiscated and turned in to the national treasury. Zheng was dissatisfied with this judgment and appealed. The Intermediate People's Court of Nanping District made the panel judgment of the second instance on July 22nd, 1991 that: the appeal shall be rejected and the original judgment shall be sustained. The Higher People's Court of Fujian Province retried the case in accordance with the trial supervision procedure. It was affirmed in the retrial that Zheng's act of reselling wood for profiteering was true and constituted the crime of illegal speculation and profiteering. In the original judgment, under the circumstance of not completely eliminating the possibility that Zheng sold wood by mistake, it lacked evidence to determine that Zheng stole and sold wood by collaborating with Pan Guoming, the original instance was wrong to adjudicate that Zheng committed larceny and shall be corrected. Therefore, the Higher People's Court of Fujian Province made the panel judgment of the retrial on March 15th, 1995 that: the content of the original judgment on sentencing Zheng to a fixed-term imprisonment of one year for his crime of illegal speculation and profiteering and recovering the illicit money shall be sustained; and the content of the original judgment on sentencing Zheng to a fixed-term imprisonment of 7 years for larceny shall be canceled. 福建省高级人民法院赔偿委员会经审理查明:1991年5月14日,邵武市人民法院作出一审刑事判决:认定被告人郑传振于1988年11月以每立方米400元无证收购原木25.932立方米,然后以每立方米500元的价格倒卖给安徽省凤台县木器厂,且将原木数量改为29.035立方米,从中牟利4148.30元,构成投机倒把罪,判处有期徒刑一年;同年12月27日,郑传振将建阳地区乡镇建筑建材公司堆放在邵武晒口货场的杂木33.142立方米,卖给安徽省凤台县木器厂,构成盗窃罪,判处有期徒刑七年。对其数罪并罚,决定执行有期徒刑七年六个月(刑期从1989年10月30日起至1997年4月29日止);追缴其赃款人民币42992.16元,发还给南平地区乡镇建筑建材公司;没收其非法所得2124.89元及从凤台县木器厂追回的款项1331.60元,上缴国库。郑传振不服该判决,提出上诉。南平地区中级人民法院于1991年7月22日作出二审刑事裁定:驳回上诉,维持原判。福建省高级人民法院依照审判监督程序对此案再审。再审认为,郑传振倒卖木材的行为属实,构成投机倒把罪。原判在没有完全排除郑传振误卖木材的情况下,即认定郑传振伙同潘国铭盗卖木材,显属证据不足,判决郑传振犯盗窃罪不当,应予纠正。据此,福建省高级人民法院于1995年3月15日作出再审刑事判决:维持原判中以投机倒把罪对郑传振判处有期徒刑一年及追缴其赃款部分;撤销原判中以盗窃罪对郑传振判处有期徒刑七年的部分。
On Aprile 24th, 1995, Zheng was released from Jianyang Prison of Fujian Province after having been detained for 1638 days for erroneous judgment. 1995年4月24日,郑传振在福建省建阳监狱被释放,因错判被羁押1638天。
On June 15th, 1995, Zheng submitted a petition for compensation to the organ with indemnifying obligation, the Intermediate People's Court of Nanping City, and, under the reason that the judgment of larceny on him was erroneous and he suffered losses from the judgment, asked this court to compensate for his losses suffered from the erroneous judgment and return the funds recovered as illicit money and the goods and cash detained by the public security organ. The Intermediate People's Court of Nanping City held that, the Law on State Compensation came into force as of January 1st, 1995. It is stipulated in 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 Scope of Case Acceptance of the Compensation Committees of the People's Courts (hereinafter referred to as Reply No.1 [1995]) that the Law on State Compensation is not retroactive. The case of Zheng was a case sentenced before the Law on State Compensation came into force, thus the provisions of the Law on State Compensation

开弓没有回头箭

were not applicable to the case. In addition, it is stipulated in Item (3) of Article 15 of the Law on State Compensation that: it falls within the scope of state compensation only when “innocence is found in a retrial held in accordance with the trial supervision procedure and the original sentence has already been executed”. The panel judgment made by the Higher People's Court in the retrial only canceled larceny from the original judgment, but did not change the original judgment and declare Zheng innocent, so Zheng did not fall within the scope of state compensation and shall not be compensated.
 1995年6月15日,赔偿请求人郑传振向赔偿义务机关南平市中级人民法院提出赔偿申请,以其因被错判盗窃罪而遭受损失为由,要求该院赔偿因错判被羁押的损失费,退还以赃款名义被追缴的款项和被公安机关扣押的货物及现金。南平市中级人民法院认为,国家赔偿法于1995年1月1日起施行。最高人民法院在《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》(以下简称法复(1995)1号批复)中规定,国家赔偿法不溯及既往。郑传振一案是国家赔偿法施行前判处的案件,不适用国家赔偿法我能说我还比较喜欢洗碗吗的规定。况且国家赔偿法十五条第(三)项规定:“依照审判监督程序再审改判无罪,原判刑罚已经执行的”才属于国家赔偿范围。福建省高级人民法院的再审刑事判决只是撤销了原判的盗窃罪,并未改判郑传振无罪,因此郑传振不属于国家赔偿范围,决定不予赔偿。
The compensation committee of the Higher People's Court of Fujian Province held that: 福建省高级人民法院赔偿委员会认为:
The provision that the Law on State Compensation is not retroactive as stipulated in the Reply No.1 [1995] refers to that the Law on State Compensation does not apply to the acts of infringing upon the legitimate rights and interests of citizens, legal persons and other organizations, which are committed by state organs and their functionaries, occurred and finished before December 31st, 1994. These acts shall be handled in accordance with the corresponding provisions existing when they occurred. As for this case, the content of the original judgment on larceny was canceled in the retrial on March 15th, 1995. Zheng was detained and not released until April 24th, 1995 because of the erroneous judgment of larceny on him. The infringement caused by erroneous judgment occurred before January 1st, 1995, but the act of tort lasted all along till it was after January 1st, 1995. Therefore, as for the criminal compensation petitioned by Zheng, the compensation that should be made for the losses suffered after January 1st, 1995 shall be made in accordance with the Law on State Compensation, the compensation that should be made for the losses suffered before December 31st, 1994 shall be governed by the Law on State Compensation by analogy in case there was no provision then. 法复(1995)1号批复中关于国家赔偿法不溯及既往的规定,是指国家机关及其工作人员行使职权时侵犯公民、法人或者其他组织合法权益的行为,发生并结束于1994年12月31日以前的,不适用国家赔偿法,应当适用行为时的规定进行处理。本案是1995年3月15日再审改判撤销了原审对郑传振盗窃罪的判决部分。郑传振因盗窃罪被错判,一直羁押至1995年4月24日才被释放。错误判决造成的侵权虽然发生在1995年1月1日之前,但是侵权行为一直持续至1995年1月1日以后。所以对郑传振的刑事赔偿申请中属于1995年1月1日以后应予赔偿的部分,应当适用国家赔偿法予以赔偿,属于1994年12月31日以前应予赔偿的部分,当时没有规定的,也可以参照国家赔偿法予以赔偿。
In the Law on State Compensation, criminal compensation shall be made in accordance with the principle of compensating for the detainment of innocents. Only the illegal detainment conforming to the provisions of the Law on State Compensation北大法宝,版权所有 may result in state compensation. The provision of Item (3) of Article 15 of the Law on State Compensation shall be understood as aiming at a specific crime. The judgment of the retrial made by the Higher People's Court of Fujian Province regarding the case of Zheng did not declare the whole case as innocent, but it cancelled the content of the original judgment on sentencing Zheng to a fixed-term imprisonment of 7 years for larceny. The retrial changed the original judgment because the facts verified in the original judgment were unclear and the evidences were insufficient and not because the circumstance of the larceny committed by Zheng was obviously minor thus shall not be deemed as a crime. As for this case, larceny shall not be established at all and this case did not fall within the circumstances under which the state is exempted from liabilities as stipulated in Article 17 of the Law on State Compensation. Zheng's larceny had been cancelled, thus the criminal punishment executed against him had no legal basis any more, and an infringement had been constituted. Therefore, Zheng was entitled to obtaining state compensation according to law. 国家赔偿法中的刑事赔偿贯彻的是无罪羁押予以赔偿原则。只有符合国家赔偿法感觉黑人都特别团结规定的违法羁押,才能导致国家赔偿。国家赔偿法十五条第(三)项的规定,应当理解为是针对具体个罪而言。福建省高级人民法院对郑传振一案的再审判决,虽然没有全案宣告无罪,但是撤销了对郑传振以盗窃罪判处有期徒刑七年的判决部分。再审改判不是因为郑传振的盗窃情节显著轻微不认为是犯罪,而是因为原判认定的事实不清,证据不足,盗窃罪根本不能成立,也不属于国家赔偿法十七条规定的国家免责情形。郑传振的盗窃罪已被撤销,被执行的刑罚已经失去了合法的根据,构成侵权。因此,郑传振依法有取得国家赔偿的权利。
It is stipulated in Article 26 of the Law on State Compensation that: “If the personal freedom of a citizen is infringed upon, compensation money for each day shall be calculated in accordance with the state daily average pay of staff and workers in the previous year. In accordance with the provision of Article 6 of the Interpretations of the Supreme People's Court on Several Issues Concerning the Implementation of the Law of the People's Republic of China on State Compensation by the People's Courts, the state daily average pay of staff and workers in the previous year shall be calculated by dividing the working days of the whole year with the annual average pay of staff and workers. The compensation for the losses suffered by Zheng from his detainment before December 31st, 1994 may be governed by the Law on State Compensation by analogy. 国家赔偿法二十六条规定:“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”。根据最高人民法院《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》第六条的规定,国家上年度职工日平均工资数额,应当以职工年平均工资除以全年法定工作日数的方法计算。至于郑传振在1994年12月31日以前被羁押的损失部分,也参照国家赔偿法的规定予以赔偿。
In conclusion, as the larceny sentenced in the original instance was canceled, although Zheng was not completely declared as innocent, as for the punishment executed for larceny, Zheng was entitled to petitioning for state compensation according to law. Among the recovered illicit money and properties, 3456.49 yuan was gained by engaging in speculation and profiteering. As the crime of illegal speculation and profiteering was not cancelled, the illicit money shall not be returned; 42992.16 yuan was obtained by Zheng from his act of selling the wood owned by the village and town construction and building materials company of Nanping District and shall be returned to the proprietor. Zheng's petition for returning the recovered illicit money and properties was unreasonable and shall not be approved. The Intermediate People's Court of Nanping City was the court that made the original judgment that had already come into force, thus shall undertake the liabilities for compensation according to law. The other claims made by Zheng did not conform to the provisions on state compensation and shall not be supported. The compensation committee of the Higher People's Court of Fujian Province made the decision that: 综上,由于原判盗窃罪被撤销,虽然不属于全案宣告无罪,郑传振对因盗窃罪被执行的刑罚,有依法申请取得国家赔偿的权利。已追缴的赃款和财物中,有3456.49元是投机倒把牟利所得。此罪未被撤销,赃款不能退还;有42992.16元是郑传振卖南平地区乡镇建筑建材公司所有的木材所得,应当退还所有权人。郑传振申请退还已追缴的赃款和财物无理,不予准许。南平市中级人民法院是作出原生效判决的法院,依法应当承担赔偿责任。郑传振提出的其他赔偿请求,不符合国家赔偿法的规定,不予支持。福建省高级人民法院赔偿委员会作出决定:
JUDGMENT 
1. the decision of the Intermediate People's Court of Nanping City on refusing to make compensation shall be cancelled; 一、撤销南平市中级人民法院的拒绝赔偿决定;
2. the Intermediate People's Court of Nanping City shall compensate 16501.12 yuan to Zheng; 二、南平市中级人民法院赔偿郑传振人民币16501.12元;
3. Zheng's petition for returning the recovered illicit money and properties shall be rejected.

 三、驳回郑传振关于退还已追缴的赃款和财物的申请。
 

     
     
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