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Notice of the Supreme People's Court on Issues concerning the Accurate Understanding and Application of “Provisions of the State” as Mentioned in the Criminal Law [Effective]
最高人民法院关于准确理解和适用刑法中“国家规定”的有关问题的通知 [现行有效]
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Notice of the Supreme People's Court on Issues concerning the Accurate Understanding and Application of “Provisions of the State” as Mentioned in the Criminal Law

 

最高人民法院关于准确理解和适用刑法中“国家规定”的有关问题的通知

(No. 155 [2011] of the Supreme People's Court) (法发〔2011〕155号)

The local people's courts at all levels across the country, military courts at all levels, intermediate and basic railway transportation courts, and courts of Xinjiang Production and Construction Corps at all levels: 全国地方各级人民法院、各级军事法院、各铁路运输中级法院和基层法院,新疆生产建设兵团各级法院:
Recently, the Legislative Affairs Office of the State Council unified and standardized the views regarding whether the relevant provisions of documents of the General Office of the State Council may be determined to be within the meaning of “provisions of the state” as mentioned in the Criminal Law. In order to effectively conduct trial of relevant criminal cases and accurately understand the criteria for determining a “violation of the provisions of the state” as mentioned in the relevant provisions of the Criminal Law, punish criminals in accordance with the law, and unify the application of law, you are hereby notified of relevant issues as follows: 日前,国务院法制办就国务院办公厅文件的有关规定是否可以认定为刑法中的“国家规定”予以统一、规范。为切实做好相关刑事案件审判工作,准确把握刑法有关条文规定的“违反国家规定”的认定标准,依法惩治犯罪,统一法律适用,现就有关问题通知如下:
I. In accordance with the provisions of Article 96 of the Criminal Law, “provisions of the state” as mentioned in the Criminal Law means the laws and decisions enacted by the National People's Congress and its Standing Committee and the administrative regulations issued, administrative measures prescribed, and decisions and orders issued by the State Council. The administrative measures prescribed by the State Council shall be decided by the State Council and usually included in the administrative regulations or documents issued by the State Council. The documents issued in the name of the General Office of the State Council and meeting the following conditions shall be deemed to be within the meaning of “provisions of the state” as mentioned in the Criminal Law: (1) Having clear legal basis or not contravening the relevant administrative regulations. (2) Having been deliberated and adopted at the executive meeting of the State Council or approved by the State Council. (3) Being published in the Gazette of the State Council.
......
   一、根据刑法第九十六的规定,刑法中的“国家规定”是指,全国人民代表大会及其常务委员会制定的法律和决定,国务院制定的行政法规、规定的行政措施、发布的决定和命令。其中,“国务院规定的行政措施”应当由国务院决定,通常以行政法规或者国务院制发文件的形式加以规定。以国务院办公厅名义制发的文件,符合以下条件的,亦应视为刑法中的“国家规定”:(1)有明确的法律依据或者同相关行政法规不相抵触;(2)经国务院常务会议讨论通过或者经国务院批准;(3)在国务院公报上公开发布。
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