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Seven Model Cases of “Carrying forward the Spirit of the Constitution and Implementing the Provisions of the Constitution” Published by the Supreme People's Procuratorate [Effective]
最高人民检察院发布7起“弘扬宪法精神 落实宪法规定”典型案例 [现行有效]
【法宝引证码】

Seven Model Cases of “Carrying forward the Spirit of the Constitution and Implementing the Provisions of the Constitution” Published by the Supreme People's Procuratorate 

最高人民检察院发布7起“弘扬宪法精神 落实宪法规定”典型案例

(December 3, 2019) (2019年12月03日)

Model Cases of “Carrying forward the Spirit of the Constitution and Implementing the Provisions of the Constitution” “弘扬宪法精神 落实宪法规定”典型案例
I. Serving and safeguarding sound development of the non-public sectors of the economy   一、服务保障非公有制经济健康发展
Article 11 of the Constitution of the People's Republic of China provides that “The state protects the lawful rights and interests of the non-public sectors of the economy, including individual and private sectors of the economy. The state encourages, supports, and guides the development of the non-public sectors of the economy.” 中华人民共和国宪法》第十一条规定:国家保护个体经济、私营经济等非公有制经济的合法的权利和权益。国家鼓励、支持和引导非公有制经济的发展。
In the following case, the procuratorial organ took the initiative to assign procuratorial personnel to intervene in advance, distinguished counterfeit and inferior products from innovative products, promoted the establishment of emerging industry standards, and protected the lawful rights and interests of the non-public sectors of the economy. 下面案例中,检察机关主动派员提前介入,辨别伪劣产品与创新产品,推动新兴行业标准确立,保护非公有制经济的合法权利和权益。
People v. Liu for production and sale of counterfeit and inferior products 刘某生产、销售伪劣产品案
[Key Point] 【要旨】
Starting from verifying the basic case facts, the procuratorial organ has handled the case with the idea of serving the economic development and supporting enterprises in making innovations, promoted the sound and standardized development of the industry, driven the generation of a new industrial standard by handling the case, and achieved the unification of “legal effects, political effects, and social effects.” 检察机关从核实案件基本事实出发,以服务经济发展、支持企业创新的理念办案,促进行业健康规范发展,办理一案推动一个新的行业标准产生,达到了法律、政治、社会“三个效果”统一。
[Basic Facts] 【基本案情】
On October 26, 2017, Zhejiang __ Industry and Trade Co., Ltd. produced 48 sets of electric treadmills (T600D), with the sales amount of CNY57,600. It was found upon sampling inspection that three indicators of the aforesaid electric treadmills did not conform to the product standards and they were determined as sub-quality products. 2017年10月26日,浙江某工贸有限公司生产T600D型电动跑步机48台,销售金额为5.76万元。经抽样检测,上述电动跑步机有3项指标不符合产品标准,被判定为不合格。
From November to December 2017, the Company researched and developed an innovative product, smart flat sport walking treadmill (hereinafter referred to as the “walking treadmill”), and sold it in the name of a sport walking treadmill, with the sales amount of over CNY7.01 million. It was found upon sampling inspection that the inspected items of the aforesaid walking treadmill conformed to the national standard for stationary fitness equipment, but there were three indicators did not conform to the national standard for treadmills, and the aforesaid walking treadmill was determined as a sub-quality product. 2017年11月至12月,该公司通过研发创新产品智能平板健走跑步机(以下称走步机),对外以健走跑步机名义进行销售,销售金额达701万余元。经抽样检测,上述走步机所检项目符合固定式健身器材的国家标准,但有三项指标不符合跑步机的国家标准,被判定为不合格。
[Case Handling Process] 【案件办理情况】
In February 2018, the public security organ placed this case on file for investigation into Liu, the operator of the Company, for being suspected of a crime of producing and selling counterfeit and inferior products. In December 2018, this case was transferred to the procuratorial organ for prosecution. Upon examination, the procuratorial organ returned this case for supplementary investigation for twice according to the law. 2018年2月,公安机关以涉嫌生产、销售伪劣产品罪对该公司经营者刘某立案侦查。2018年12月,该案移送检察机关审查起诉。检察机关经审查,依法退回补充侦查2次。
The procuratorial organ held upon examination that the walking treadmills produced by Liu's company were innovative products rather than counterfeit and inferior products and the production and sale of such walking treadmills should not be determined as a crime. The production and sale of 48 sets of sub-quality electric treadmills by the Company has constituted a crime of producing and selling counterfeit and inferior products. However, the sales amount was only over CNY50,000, reflecting minor subjective malice. In addition, no personal injury or property damage was identified upon investigation and the social harm was relatively small. The Company operated by Liu was an innovative enterprise, which was in the critical period for upgrading and development. By taking into full account of various factors, in April 2019, the procuratorial organ made a decision to not lodge a public prosecution against Liu. 检察机关经审查认为,刘某公司生产的走步机系创新产品,而非伪劣产品,对该部分事实不认定为犯罪。该公司之前生产、销售的48台不合格电动跑步机的行为已构成生产、销售伪劣产品罪,但销售金额仅5万余元、主观恶性较小,且经调查未发现消费者人身、财产受损的情况,社会危害性较小。刘某经营的公司属于创新型企业,正处于升级发展的关键期。检察机关综合考虑各种因素,于2019年4月对刘某作出相对不起诉决定。
[Significance] 【典型意义】
In the course of case handling, the procuratorial organ intervened in advance and under the circumstances where the basic case facts have been basically found and main evidence has been fixed, considering that Liu was the person in charge of the enterprise, it proposed that the public security organ should use the custody measure with caution from the perspective of guaranteeing the normal operation of the enterprise. The procuratorial organ paid attention to grasping the nature of the case and the constitution of the relevant crime, specified the focal disputes through conscientious review, and determined through investigation in various ways that the walking treadmills involved had significant differences with conventional treadmills in terms of the running speed and product structure and it was inappropriate to directly determine that the walking treadmills involved were sub-quality ones according to the national compulsory standards for treadmills. In the course of case handling, the procuratorial organ did not blindly admit the Technical Inspection Report in which the products involved were determined as sub-quality ones, took the initiative to intervene, went around in an in-depth manner, conscientiously researched and judged, safeguarded the lawful rights and interests of the parties, guaranteed the normal operation of the private enterprise, and maintained a good environment for the development of the private enterprise. Concurrently, by urging the enterprise to improve the enterprise standard, report for archival purposes as required, and take the initiative to consult with the competent industrial department and supervisory department, the procuratorial organ promoted the industrial department to provide professional advice, specified the national standard applicable to walking treadmills, and promoted the sound and standardized development of the industry. 案件办理过程中,检察机关及时提前介入,在案件事实已基本查清,主要证据已固定的情况下,考虑刘某系企业负责人,从保障企业正常经营角度出发,建议公安机关慎用羁押措施。注意把握案件性质和相关犯罪的构成,通过认真梳理,明确了争议焦点,通过多方调查认定涉案走步机在运行速度、产品结构等方面均与传统跑步机存在显著区别,不宜根据跑步机的国家强制性标准径行认定涉案走步机不合格。该案办理过程中,检察机关不盲目采信判定产品不合格的《技术检测报告》,主动介入、深入走访、认真研判,保护当事人的合法权益,保障民营企业正常经营,维护民营企业发展的良好环境。同时,检察机关通过督促企业完善企业标准及按规定上报备案、主动与行业主管及监管部门会商研究等,推动行业部门提供专业意见,明确了走步机适用的国家标准,促进了行业的健康规范发展。
II. Punishing pyramid sale according to the law and maintaining social and economic order   二、依法惩治传销,维护社会经济秩序
Article 11 of the Constitution of the People's Republic of China provides that “The lawful private property of citizens may not be encroached upon. The state protects by law the right of citizens to own private property.” 中华人民共和国宪法》第十三条北京大学互联网法律中心规定:公民的合法的私有财产不受侵犯,国家依照法律规定保护公民的私有财产权。
Article 15 of the Constitution of the People's Republic of China provides that “The state prohibits in accordance with the law any organization or individual from disturbing the social-economic order.” 中华人民共和国宪法》第十五条规定:国家依法禁止任何组织或者个人扰乱社会经济秩序。
In the following case, the procuratorial organ saw through a fraud of BTC pyramid sale, legally lodged a public prosecution in the court in a timely manner on the ground of suspected crime of organizing and leading pyramid sale activities, and protected the legitimate private properties of citizens from being encroached upon. 下面案例中,检察机关识破比特币传销骗局,及时以涉嫌组织、领导传销活动罪依法向法院提起公诉,保护公民合法私有财产不受侵犯。
People v. Lu, Cheng, et al. for organizing and leading pyramid sale activities by using a “virtual currency” 卢某某、成某某等人利用“虚拟货币”组织、领导传销活动案
[Key Point] 【要旨】
The procuratorial organ has seen through a crime of fraud and pyramid sale committed by some criminals with “blockchain,” “virtual currencies,” “consumption and investment,” “charity and mutual assistance” and other new terms and concepts as stunts and high returns as baits and legally cracked down on acts of encroachment upon people's property rights and interests. 检察机关识破一些不法分子以“区块链”“虚拟货币”“消费投资”“慈善互助”等新名词、新概念为噱头,以高额回报为诱饵进行的诈骗传销犯罪,依法打击侵害人民群众财产权益的行为。
[Basic Facts] 【基本案情】
In September 2015, seeing “virtual currency” and other hot concepts, Lu, Cheng, and other persons set up __ Science and Technology Co., Ltd. and they jointly deliberated the bonus system of GGP Win-win Points, recruited members in the name of making investment and purchasing products, determined the membership levels (general membership, silver membership, gold membership, and diamond membership) according to the amounts of funds invested, and released the corresponding GGP at the proportion of 5:1 between the amount of funds invested and the GGP, and such GGP may be traded in cash on the website of BTC100. At the same time, for the purpose of recruiting more subordinates, the Company set such awards as recommendation award, mutual assistance award, management award, and level award and granted members bonuses at variable proportions according to the membership levels and the management levels. It was found upon investigation that there were 30 levels in the pyramid sale network involved, over 10,000 member accounts were involved, and the amount of funds involved was over CNY320 million. 2015年9月,卢某某、成某某等人看到“虚拟货币”等概念火爆,设立某科技有限公司,共同商议设立GGP共赢积分奖金制度,以投资购买产品的名义发展会员,并按照投资金额的多少确定会员级别,设普卡、银卡、金卡、钻卡四种,以投资额5:1的比例释放相应的GGP积分,可以在BTC100网站上交易变现。同时,为了发展更多下线,公司设置推荐奖、互助奖、管理奖、平级奖,并按照会员级别、管理级别给予会员不同比例的奖金。经查,该传销网络共计30个层级,涉及会员账号1万余个,涉案金额共计人民币3.2亿余元。
[Case Handling Process] 【案件办理情况】
The procuratorial organ lodged a public prosecution against Lu, Cheng, and other nine persons on the ground that they were suspected of a crime of organizing and leading pyramid sale activities. In September 2019, the court entered a judgment that Lu, Cheng, and other nine defendants should be sentenced to fixed-term imprisonments ranging from two to five years and imposed on fines. 检察机关以卢某某、成某某等11人涉嫌组织、领导传销活动罪向法院提起公诉。2019年9月,法院对本案作出判决,判处卢某某、成某某等11名被告人两至五年不等有期徒刑,并处罚金。
[Significance] 【典型意义】
In pyramid sale activities, the number of members recruited is directly or indirectly used as the basis for calculating remunerations or bonuses. The acts of inducing or intimidating participants to carry on recruiting members for the purpose of defrauding properties have disturbed the economic and social order and impaired the lawful rights and interests of the people. With “blockchain,” “virtual currencies,” “consumption and investment,” “charity and mutual assistance,” and other new terms and concepts as stunts and high returns as baits, some criminals have attracted ordinary people to participate in such activities through various publicity and trainings. These complex criminal means, especially various financial investment business in the name of “financial innovation,” have high confusability and are difficult to be identified. Ordinary people may be easily swindled, resulting in economic losses, and such criminal means have seriously disturbed the social and economic order. By severely cracking down on pyramid sale, fraud, illegal fund-raising, and other crimes with new concepts as stunts, the procuratorial organ has demonstrated the reverence for the law, effectively safeguarded the properties of the people, and maintained good social and economic order. 传销活动直接或间接以发展人员的数量作为计酬或者返利依据,引诱、胁迫参加者继续发展他人参加,骗取财物,扰乱经济社会秩序,损害人民群众的合法权益。一些不法分子以“区块链”“虚拟货币”“消费投资”“慈善互助”等新名词、新概念为噱头,以高额回报为诱饵,通过各种宣传培训吸引老百姓参与其中。这些纷繁复杂的犯罪手段,特别是以“金融创新”等名义开展的各类金融投资业务,迷惑性强、难以识别,群众容易上当受骗,造成经济损失,严重扰乱社会经济秩序。检察机关通过严厉打击这类以新概念为噱头的传销、诈骗、非法集资犯罪,彰显法律的威严,切实维护人民群众的财产,维护良好的社会经济秩序。
III. Protecting the people's health through administrative public interest litigation   三、通过行政公益诉讼保护人民健康
Article 11 of the Constitution of the People's Republic of China provides that “The state develops medical and health services, promotes modern medicine and traditional Chinese medicine, ..., all for the protection of the people's health." 中华人民共和国宪法》第二十一条规定:国家发展医疗卫生事业,发展现代医药和我国传统医药,……保护人民健康。
In the following case, upon receipt of public tip-offs and complaints on false publicity in the market of health care products, the procuratorial proposal raised a procuratorial proposal to the market regulation bureau and promoted the regulation of chaos in the field of health care products, which safeguarded the people's life and health rights and the safety of every bite of food for thousands of households. 下面案例中,检察机关接到群众举报投诉保健品市场虚假宣传,及时向市场监督管理局提出检察建议,并推动保健品领域乱象整治,保障人民群众生命健康权利和千家万户舌尖上的安全。
Administrative public interest litigation case regarding false publicity of health care products in __ City, Zhejiang Province 浙江省某市保健品虚假宣传行政公益诉讼案
[Key Point] 【要旨】
By raising a procuratorial proposal, the procuratorial organ has urged the administrative organ with regulatory duties to perform its duties according to the law, advanced the rectification of chaos in the field of health care products, and safeguarded the physical health and economic interests of the people, especially the elderly and patients. 检察机关通过检察建议,督促负有监督管理职责的行政机关依法履职,推动保健品领域乱象整治,保护人民群众特别是老年人、病人的人身健康和经济利益。
[Basic Facts] 【基本案情】
At the beginning of 2019, Yijiantang, Miao's Yangshengtang, and other merchants in __ City sold “high potential energy health care instruments,” “Kanghui Weigu capsules,” “massage stools,” goat milk powder, and other health care products at high prices by means of hanging billboards, making oral marketing, and organizing the elderly to participate in meeting marketing, and holding customer appreciation meetings. Concurrently, they used such terms of disease treatment as “therapies to high blood pressure and diabetes and drugs for anti-tumor and cancer” in violation of regulations to exaggerate the product functions, fabricate the use effects, and mislead or cheat on consumers by making false publicity. The market regulation department failed to effectively investigate and punish such merchants, which has infringed the public interests. 2019年初,某市益健堂、苗家养生堂等商户通过悬挂广告牌、口头推销、组织老人会销、举办答谢会等方式,高价兜售“高电位能置养生仪”、“康汇牌维固胶囊”、“按摩凳”和羊奶粉等保健产品,同时违规使用“治疗高血压、糖尿病、抗肿瘤癌症”等疾病治疗用语,夸大产品功能、虚构使用效果,虚假宣传误导和欺骗消费者,市场监管部门未能有效查处,损害了社会公共利益。
[Case Handling Process] 【案件办理情况】
At the beginning of 2019, the procuratorial organ of __ City received over 50 tip-offs from the public against the chaos in the market of health care products. Accordingly, the procuratorial organ deployed a special action and conducted a thorough search of violations of law in the market of health care products in __ City. By carrying out 39 private investigations, took 117 pieces of evidence online, inquired 64 persons related to the case, collected 108 pieces of physical evidence, documentary evidence, and audio-visual materials, and basically grasped major violations of law in the field of health care products within its jurisdiction. In light of the investigation situations, the procuratorial organ raised a procuratorial proposal to the Market Regulation Bureau of __ City (hereinafter referred to as the “market regulation bureau”) and urged the latter to make more efforts to law enforcement and case-handling, investigate and punish Yijiantang, Miao's Yangshengtang, and Hengnian Health Care Products Firm in __ City for their illegal acts of false publicity of health care products, and transfer such merchants that were suspected of a crime to the public security organ in a timely manner. Upon receipt of the procuratorial proposal, the market regulation bureau attached great importance, immediately organized key inspections on entities engaging in illegal operations involved in the procuratorial proposal. Over 30 cases have been docketed and fines of over CNY540,000 have been imposed. Jointly with the public security organ, the township people's government, and sub-district office, the market regulation bureau investigated and closed down five dens involved in the pyramid sale of health care products, transferred four cases to the public security organ, and sentenced seven persons to criminal detention, which has effectively rectified chaos in the market of health care products in __ City. 2019年初,该市检察机关接到群众对保健品市场乱象的举报投诉线索达50余条。检察机关据此部署专项行动,对本市范围内的保健品市场违法问题进行摸排,开展暗访调查39次,网上取证117条,询问案件相关人员64人次,收集物证、书证和视听音频资料108份,基本掌握了辖区内保健品领域存在的主要违法情况。结合调查情况,检察机关向该市市场监督管理局发出检察建议,督促其加大执法办案力度,依法对该市益健堂、苗家养生堂、恒念保健品商行保健品虚假宣传等违法行为进行查处,对涉嫌犯罪的及时移送公安机关。市场监督管理局收到检察建议后,立即组织对检察建议涉及的违法经营单位进行重点检查,共立案30余件,罚没款54万余元,并联合公安、乡镇(街道)等查处关停涉及保健品传销的黑窝点5个,移送公安机关立案4件刑拘7人,有效整治了当地保健品市场乱象。
[Significance] 【典型意义】
Article 21 of the Constitution provides that “The state develops medical and health services, promotes modern medicine and traditional Chinese medicine, ..., all for the protection of the people's health.” Food is the paramount necessity of the people and safety concerns first in food. The food and drug safety concerns the people's physical health and life safety and the people's increasing need for a better life raises new and higher requirements for food and drug safety. In recent years, the chaos in the market of health care products has becoming prominent and the occasional occurrences of “deceiving and entrapping the elderly” and “deceiving and entrapping patients” has infringed on consumers' health safety and economic rights and interests. The procuratorial organ has insisted on a people-centered approach, deployed and carried out a special supervision action against chaos in the market of health care products, with the procuratorial proposal before public interest litigation as the starting point, given play to the roles of the clue discovery mechanism of “Grid + Procuratorate,” expanded the research channels for clue discovery, taken the initiative to strengthen the follow-up supervision, given support to the market regulation department in conducting a comprehensive identification, expanded the governance effects, effectively guaranteed the safety of every bite of food for thousands of households, and actually realized the good effects of win-win. 宪法》第二十一条规定:“国家发展医疗卫生事业,发展现代医药和我国传统医药,……保护人民健康。”民以食为天,食以安为先。食品药品安全关系人民群众身体健康和生命安全,人民日益增长的美好生活需要对加强食品药品安全工作提出了新的更高要求。近年来,保健品市场乱象突出,“骗老坑老”“骗病坑病”等时有发生,侵害消费者健康安全和经济权益。检察机关坚持以人民为中心,部署开展整治保健品市场乱象专项监督行动,以行政公益诉讼诉前检察建议为切入点,发挥“网格+检察”线索发现机制,拓宽线索发现研判渠道,并主动加强后续跟踪监督,支持市场监管部门全面排查,扩大治理成效,切实保障千家万户舌尖上的安全,真正实现了双赢多赢共赢的良好效果。
IV. Safeguarding employees' lawful rights and interests through an administrative protest   四、通过行政抗诉保障劳动者合法权益
Article 45 of the Constitution of the People's Republic of China provides that “Citizens of the People's Republic of China have the right to material assistance from the state and society when they are old, ill or disabled. The state develops social insurance, social relief, and medical and health services that are required for citizens to enjoy this right." 中华人民共和国宪法》第四十五条你怀了我的猴子规定:中华人民共和国公民在年老、疾病或者丧失劳动能力的情况下,有从国家和社会获得物质帮助的权利。国家发展为公民享受这些权利所需要的社会保险、社会救济和医疗卫生事业。
In the following case, the procuratorial organ effectively conducted the procuratorial work, conscientiously performed the functions of legal supervision, assisted the parties in proving the evidence relevance, and safeguarded the lawful rights and interests of employees. 下面案例中,检察机关做实行政检察工作,认真履行法律监督职能,帮助当事人证明证据关联性,保障劳动者合法权益。
Case of Huang's application for supervision over work-related injury dispute 黄某申请工伤纠纷监督案
[Key Point] 【要旨】
The procuratorial organ has insisted on a people-centered approach, spared no effort to effectively conduct administrative procuratorial work, constantly intensified supervision over administrative litigation activities, promoted the substantial resolution of administrative disputes, safeguarded the lawful rights and interests of citizens, and positively served and promoted modernization of the national governance system and the governance capacity. 检察机关坚持以人民为中心,着力做实行政检察,不断加强对行政诉讼活动的监督,促进行政争议实质性化解,保障公民合法权益,积极服务和推进国家治理体系和治理能力现代化建设。
[Basic Facts] 【基本案情】
On the way of Huang (vice general manager of Jiangsu __ Construction Co., Ltd.) to Xuzhou City by taking a car driven by Xiao, a traffic accident occurred and Xiao was sentenced to a penalty for committing the crime of traffic offence. It was identified that Huang was injured and suffered intellectual deficiency and personality change. Huang filed an application for work-related injury certification with the local human resources and social security bureau on the ground that he was injured on the way to Xuzhou City for bidding on behalf of the Company. The human resources and social security bureau did not certify Huang's injury as a work-related one on the ground that the seal affixed in the bidding materials and the power of attorney and the seal affixed in the employment contract were inconsistent with the impression preserved in the department of industry and commerce. Huang filed an administrative lawsuit with the court and requested the court to revoke the decision of not certifying Huang's injury as a work-related injury made by the human resources and social security bureau and certify Huang's injury as a work-related one. In the judgments of first instance and second instance, the court dismissed Huang's claim. Huang refused to accept the aforesaid judgments and filed an application for supervision with the procuratorial organ. 江苏某建设有限公司副总经理黄某在乘坐肖某驾驶的轿车去徐州途中发生交通事故,肖某因犯交通肇事罪被判处刑罚。经鉴定,黄某因受伤致智能损害、人格改变。黄某以其代表公司前往徐州投标途中受伤为由向当地人社局申请工伤认定。人社局以黄某提供的投标资料、授权委托书中所盖的公司印章、聘用合同书上所盖的公司印章和该公司在工商部门所存的印模不一致,无法证明黄某是因工受伤为由不予认定工伤。黄某向法院提起行政诉讼,请求撤销人社局作出的不予认定工伤的决定,认定其为工伤。法院一审、二审均驳回了黄某诉讼请求。黄某不服法院判决,向检察机关申请监督。
[Case Handling Process] 【案件办理情况】
After accepting this case, the procuratorial organ promptly carried out the work. It arranged interviews with the parties according to the law, emphasized on investigating and verifying whether the official seal was a seal used by the Company, and found that although the seal affixed in the bidding materials held by Huang and other persons was inconsistent with the impression archived in the department of industry and commerce, the Company has also used the seal in bidding materials of other projects. By taking into full account of the whole case facts, in the view of the procuratorial organ, it may be proved that the seal was owned by the Company and Huang's bidding was a duty-related act for performing a work task and it was within the scope of work-related injury certification. 检察机关受理该案后迅速展开工作,依法会见当事人,并着重就公章是否由该公司使用的问题展开调查核实,查明黄某等人所持投标文件中所盖公司印章虽与工商部门存档印模不一致,但该公司在其他项目的投标文件中也曾使用过该印章。检察机关综合全案认为,可以证明该印章为该公司所有,黄某前往投标系执行工作任务的职务行为,属于工伤认定范围。
The procuratorial organ lodged a protest. The court fully adopted the opinions of the procuratorial organ and amended the judgments. After the court entered the amended judgment, the Company and Huang reached a settlement and the Company paid Huang the corresponding work-related injury compensation. 检察机关对该案提出抗诉。法院全面采纳检察机关意见,依法改判。法院判决后,该公司与黄某达成和解,支付其相应的工伤补偿金。
[Significance] 【典型意义】
In accordance with the provisions of the Regulation on Work-Related Injury Insurance, where an employee is injured in an accident or suffers from an occupational disease due to his work, the state and the relevant entity should, in accordance with the provisions of the work-related injury insurance system, grant the employee and his or her relatives necessary medical care and economic compensation. This system is the materialization of the provisions of the Constitution on citizens' rights and it also fully reflects the superiority of China's socialist system. In this case, through investigation and verification, the procuratorial organ found the case facts, legally initiated the protest procedure, supervised the court in entering a just judgment, and made the employee obtain the work-related injury compensation. The practice of the procuratorial organ has maintained the reverence of the Constitution and safeguarded the lawful rights and interests of citizens. 根据《工伤保险条例》规定,劳动者因工作遭受事故伤害或者患职业病的,国家和相关单位根据工伤保险制度规定,给予劳动者及其亲属必要医疗救治和经济补偿。这一制度是对宪法关于公民权利规定的具体化,也充分体现了我国社会主义制度的优越性。本案中,检察机关通过调查核实,查明了案件事实,依法启动抗诉程序,监督法院作出公正判决,使职工获得工伤补偿,维护了宪法尊严,保障了公民的合法权益。
V. Safeguarding citizens' right to obtain material assistance   五、保障公民获取物质帮助的权利
Article 45 of the Constitution of the People's Republic of China provides that “Citizens of the People's Republic of China have the right to material assistance from the state and society when they are old, ill, or disabled.” 中华人民共和国宪法》第四十五条规定:中华人民共和国公民在年老、疾病或者丧失劳动能力的情况下,有从国家和社会获得物质帮助的权利。
In the following case, by means of public hearing, the procuratorial organ assisted the victim's family member in untying the knots in his mind and the law and smoothly applying for national judicial aid, which has demonstrated the people-centered judicial vision. 下面案例中,检察机关通过公开听证的形式,帮助被害人家属解开心结、法节,并成功申请国家司法救助,彰显以人民为中心的司法情怀。
Case regarding public hearing for a criminal complaint raised by Gao B 高某刑事申诉公开听证案
[Key Point] 【要旨】
In order to increase transparency in the handling of a criminal complaint case and improve the case-handling quality and judicial credibility, the procuratorial organ has held a hearing and untied the knots in the complainant's mind and the law. 为增加办理刑事申诉案件透明度,提高办案质量和司法公信力,检察机关举行听证会,解开申诉人的心结、法结。
[Basic Facts] 【基本案情】
In July 2003, Kong and Sun deliberated on taxi robbery and purchased two iron rods as tools for criminal purpose. They induced the driver Gao A to drive the taxi to the outskirts and hit out Gao with the iron rods they carried with surprise, causing Gao's death. After grabbing one mobile phone, they fled the scene. Knowing that his brother Kong was suspected of a crime of robbery, defendant Kong Chun (middle name withheld) still provided Kong with cash and instigated Kong to hide himself in other places. 2003年7月,孔某某、孙某某计议抢劫出租车,并购得铁棍2根作为作案工具。二人诱使驾驶员高某某将出租车开至郊外,趁高某某不备,用携带的铁棍猛打高某某,致其死亡,抢得手机1部逃离现场。被告人孔某春明知其弟弟孔某某涉嫌抢劫罪,仍资助孔某某现金,并唆使其到外地躲藏。
[Case Handling Process] 【案件办理情况】
In December 2003, the court entered an incidental civil judgment and determined that Kong Shu (middle name withheld) and Sun were guilty of robbery and they were separately sentenced to death penalty and life imprisonment; Kong Chun (middle name withheld) was guilty of harboring a criminal and he was sentenced to a fixed-term imprisonment of three years with suspended execution of three years. Kong Shu (middle name withheld) refused to accept the judgment and appealed. The court of second instance entered a criminal ruling to uphold the original judgment. 2003年12月,法院作出刑事附带民事判决,认定孔某树、孙某某犯抢劫罪,分别判处死刑、无期徒刑;孔某春犯窝藏罪,判处有期徒刑三年缓刑四年。孔某树不服,提出上诉,二审法院作出刑事裁定,维持原判。
Gao B, victim Gao A's father, refused to accept the criminal ruling, raised such grounds that when committing the crime, Sun has reached the age of 18 and he should be sentenced to death penalty, and lodged a complaint to the procuratorial organ of Jiangsu Province. The procuratorial organ of Jiangsu Province held upon examination that the grounds raised by the complainant were untenable and the case may be concluded by examination. Gao B still refused to accept the conclusion of the case by examination and lodged a complaint to the Supreme People's Procuratorate. The Supreme People's Procuratorate held that the grounds raised by the complainant were untenable, it did not uphold such grounds, and the case may be concluded by examination. 被害人父亲高某不服,提出孙某某作案时已年满18周岁,应改判其死刑等理由,向江苏省检察机关提出申诉。江苏省检察机关审查认为申诉人的申诉理由不能成立,予以审查结案。高某仍不服,向最高检提出申诉。最高检认为申诉人的申诉理由不能成立,不予支持,审查结案。
In order to increase transparency in the handling of the criminal complaint case, improve the case-handling quality and judicial credibility, and untie the knots in the complainant's mind and the law, the Supreme People's Procuratorate held a public hearing. The undertaking procurators made an explanation on issues raised by the complainant and particularly explained why Sun was presumed to be under 18. The supervisors participating in the hearing held that the procedure under which the original judgment was entered was legitimate, the determination of nature was accurate, and the original judgment complied with laws and the relevant judicial interpretations. Considering that Gao B was advanced in years and such actual situations that he had no source of fixed income and did not get economic compensation, the procuratorial organ decided to grant Gao B the national judicial aid of CNY100,000 according to the law. Gao B, 77-year-old, wrote a long letter, in which he said, “you have saved me out of 16 years of pains and long-time criticism and blame and now I can start to enjoy my old age.” 为增加办理刑事申诉案件透明度,提高办案质量和司法公信力,解开申诉人的心结、法结,最高检举行公开听证。承办检察官针对申诉人提出的问题,作出说明。其中详细解释了为何推定孙某某不满18周岁。参加听证的监督员认为,原审判决程序合法,定性准确,符合法律和相关司法解释的规定。检察机关考虑到高某年事已高,没有固定收入来源,又没有得到经济赔偿的实际情况,依法决定给予高某10万元的国家司法救助。77岁的高某写了一封长信,其中写道:“帮助我从16年的痛苦中拯救出来,从漫长的非难之日走出来,开始走向能够享受晚年的道路”。
[Significance] 【典型意义】
The hearing has fully reflected the idea that the procuratorial organ must respond to the people's call, demonstrated the judicial vision of insisting on a people-centered approach and practicing equity and justice, and achieved the organic unification of law, efforts, and warmth. It is a down-to-earth, reliable, and warm action. 此次听证会充分体现了民有所呼、检必有所应的理念,彰显了以人民为中心、践行公平正义的司法情怀,做到了法度、力度、温度的有机统一,是一次接地气、敢担当、又暖心的行动。
VI. Protecting the lawful rights of citizens to a proper extent   六、保护公民合法权利有度有节
Article 39 of the Constitution of the People's Republic of China provides that “The residences of citizens of the People's Republic of China are inviolable. Unlawful search of, or intrusion into, a citizen's residence is prohibited.” 中华人民共和国宪法》第三十九条规定:中华人民共和国公民的住宅不受侵犯。禁止非法搜查或非法侵入公民的住宅。
In the following case, in light of the specific case facts, through review, supplementary examination, and overall judgment of details, the procuratorial organ accurately distinguished and determined justifiable defense and unjustifiable defense. 下面案例中,检察机关结合具体案情,通过细节的审查、补查和整体判断,对正当防卫和防卫过当作出准确区分和认定。
People v. Zhu Shan (middle name withheld) for intentional injury (unjustifiable defense) 朱某山故意伤害(防卫过当)案
[Key Point] 【要旨】
In the intensification of folk contradictions, for an ongoing unlawful intrusion into a residence or minor physical assault, a justifiable defense is allowed. However, where the intensity of defense is not necessary, resulting in the serious injury or death of and the unlawful infringer, it is a material injury that significantly exceeds the necessary extent and the defender should bear the criminal liability, but he or she should be given a mitigated punishment or exempted from punishment. 在民间矛盾激化过程中,对正在进行的非法侵入住宅、轻微人身侵害行为,可以进行正当防卫,但防卫行为的强度不具有必要性并致不法侵害人重伤、死亡的,属于明显超过必要限度造成重大损害,应当负刑事责任,但是应当减轻或者免除处罚。
[Basic Facts] 【基本案情】
Qi and Zhu A (daughter of Zhu Shan (middle name withheld)) were husband and wife. In January 2016, Zhu A filed a divorce lawsuit and they separated. Zhu took her daughter to stay with Zhu Shan (middle name withheld) and his wife. Qi disagreed with divorce and he repeatedly went to Zhu Shan (middle name withheld)'s residence for kicking up a row. On May 8, after drinking, Qi went to Zhu Shan (middle name withheld)'s residence by driving a car and intended to enter the courtyard from the side gate. After failing to enter the courtyard, Qi shouted curses outside the gate, stood and wobbled on the car hood, climbed the front gate of the courtyard, and threw tiles to Zhu Shan (middle name withheld) on the wall. Zhu Shan (middle name withheld) brought a knife for slaughtering sheep from the room. Afterwards, Qi jumped down to the courtyard and tore with Zhu Shan (middle name withheld) in a bare-handed manner. In this course, Zhu Shan (middle name withheld) stabbed Qi in the chest. Seeing that Qi was injured, Zhu Shan (middle name withheld) opened the front gate and took the initiative to call the police. Qi died of acute massive hemorrhage. 朱某山之女朱某与齐某系夫妻,朱某于2016年1月提起离婚诉讼并与齐某分居,朱某带女儿与朱某山夫妇同住。齐某不同意离婚,反复到朱某山家外吵闹。5月8日齐某酒后驾车到朱某山家,欲从小门进入院子,未得逞后在大门外叫骂,并站在汽车引擎盖上摇晃、攀爬院子大门,在墙上用瓦片掷砸朱某山。朱某山从屋内拿出宰羊刀防备。随后齐某跳入院内徒手与朱某山撕扯。撕扯中,朱某山刺中齐某胸部一刀。朱某山见齐某受伤,把大门打开,并主动报警。齐某因急性大失血死亡。
[Case Handling Process] 【案件办理情况】
In the trial of first instance, according to the relationship between Zhu Shan (middle name withheld) and Qi and the specific case facts, the court held that the unlawful act of Qi has not reached the extent that Zhu Shan (middle name withheld) must stab him with a knife for stopping such act, the act of Zhu Shan (middle name withheld) was not defense in nature and it was not unjustifiable defense. However, Zhu Shan (middle name withheld) voluntarily surrendered himself and truthfully confessed to the principal criminal facts, it was a voluntary surrender and he should be given a mitigated penalty. Therefore, Zhu Shan (middle name withheld) was sentenced to a fixed-term imprisonment of 15 years with deprival of political rights for five years. 法院一审对该案判决认为,根据朱某山与齐某的关系及具体案情,齐某的违法行为尚未达到朱某山必须通过持刀刺扎进行防卫制止的程度,朱某山的行为不具有防卫性质,不属于防卫过当,但其自动投案并如实供述主要犯罪事实,系自首,依法从轻处罚,判处朱某山有期徒刑15年、剥夺政治权利5年。
Zhu Shan (middle name withheld) appealed on the ground of unjustifiable defense. The procuratorial organ appeared in court in the trial of second instance and pointed out that the act of Zhu Shan (middle name withheld) was unjustifiable defense and he should bear the criminal liability; however, he should be given a mitigated penalty or exempted from punishment. The grounds of appeal of Zhu Shan (middle name withheld) were tenable. In the trial of second instance, the court supported the opinions raised by the procuratorial organ when appearing in court and determined that the act of Zhu Shan (middle name withheld) was unjustifiable defense and he should be given a mitigated penalty. It ruled to revoke the sentencing part in the judgment of first instance and sentenced Zhu Shan (middle name withheld) to a fixed-term imprisonment of seven years. 朱某山以防卫过当为由提出上诉。检察机关在二审出庭时指出,朱某山的行为属于防卫过当,应当负刑事责任,但是应当减轻或者免除处罚,朱某山的上诉理由成立。法院二审支持检察机关出庭意见,认定朱某山行为属防卫过当,应当依法减轻处罚,判决撤销一审判决的量刑部分,改判朱某山有期徒刑7年。
[Significance] 【典型意义】
In the judicial practice, it is relatively easy to grasp the determination of material injuries. However, it is relatively complex to determine an injury that “significantly exceeds the degree of necessity.” A judgment should be made by taking into full account of the nature, intensity, and harm extent of the unlawful infringement. With respect to common circumstances in the practice, attention should be paid to the following: First, an overall judgment should be made, namely, the causes and effects and the rights and wrongs should be identified. We should neither be consequence-oriented and nor fail to or dare not to determine whether it is a justifiable defense or unjustifiable defense due to the temporary failure to resolve conflicts and other factors; second, with respect to an unlawful infringement between close relatives, a stricter limitation must be imposed in light of the specific case facts; and third, whether the victim is at fault and whether it is an ongoing unlawful infringement should be accurately distinguished and determined through examination and supplementary examination of details. 司法实践中,重大损害的认定比较好把握,但对“明显超过必要限度”的认定相对复杂,要根据不法侵害的性质、强度和危害程度等因素,进行综合判断。针对实践当中的常见情形,可注意把握以下几点:一是应作整体判断,即分清前因后果和是非曲直,不能唯结果论,也不能因矛盾暂时没有化解等因素而不去认定或不敢认定;二是对于近亲属之间发生的不法侵害,对防卫强度必须结合具体案情作出更为严格的限制;三是对于被害人有无过错与是否正在进行的不法侵害,应当通过细节的审查、补查,作出准确的区分和认定。
In the handling of a criminal case, the procuratorate should attach great importance to the opinions of the criminal suspect or defendant, and his or her defender on justifiable defense or unjustifiable defense. Where the opinions raised are tenable, the procuratorate should adopt or support such opinions in a timely manner, so as to effectively safeguard the lawful rights and interests of the parties. 检察院办理刑事案件,高度重视犯罪嫌疑人、被告人及其辩护人所提正当防卫或防卫过当的意见,对于所提意见成立的,及时予以采纳或支持,依法保障当事人的合法权利。
VII. Protecting the lawful rights of juveniles in the No. 1 procuratorial proposal   七、一号检察建议保护未成年人合法权利
Article 49 of the Constitution of the People's Republic of China provides that “Marriage, family, mothers, and children are protected by the state.” 中华人民共和国宪法》第四十九条规定:婚姻、家庭、母亲和儿童受国家的保护。
In the following case, the Supreme People's Procuratorate lodged a protest in the Supreme People's Court under the trial supervision procedure on the grounds that the application of law in the original judgment was erroneous and the sentencing was abnormally light. It has fully demonstrated the strong determination and clear-cut stand of the procuratorial organ in legally and severely punishing crimes of infringing on the juveniles. 下面案例中,最高人民检察院依照审判监督程序向最高人民法院提出抗诉,理由是原判决适用法律错误,量刑畸轻,充分体现了检察机关依法严厉惩治侵害未成年人犯罪案件的坚强决心和鲜明态度。
People v. Qi for rape and child molestation 齐某强奸、猥亵儿童案
[Key Point] 【要旨】
In this case, the Procurator-General of the Supreme People's Procuratorate attended the judicial committee of the Supreme People's Court for the first time, which has demonstrated the firm attitude of the procuratorial organ in severely cracking down on crimes of infringing on juveniles, and wasted no time in issuing this case as a guiding case for the purpose of guiding all regions in accurately and effectively punishing crimes of sexual assaults of juveniles. This case has generated great social impacts. 本案中,最高检检察长首次列席最高法审判委员会,体现了检察机关严厉打击侵害未成年人犯罪的坚定态度,并及时将本案作为指导性案例下发,指导各地准确有力惩治性侵未成年人犯罪,在社会上产生了较大影响。
[Basic Facts] 【基本案情】
During the period from the summer of 2011 to October 2012 when defendant Qi was the head teacher of a class, by taking opportunities of noon breaks, self-studies at night, and checking of dormitories, he committed rape and child molestation of the victim girls A (10-year-old) and B (10-year-old) in the office, classroom, bath house, boys' dormitory, and other places on campus for several times and on the ground of taking A out to see a doctor, he took A to his home and raped her. In the girls' dormitory and other places, Qi also committed molestation of five victim girls (10 to 11-year-old). 2011年夏天至2012年10月,被告人齐某在担任班主任期间,利用午休、晚自习及宿舍查寝等机会,在学校办公室、教室、洗澡堂、男生宿舍等处多次对被害女童A(10岁)、B(10岁)实施奸淫、猥亵,并以带A女童外出看病为由,将其带回家中强奸。齐某还在女生集体宿舍等地猥亵其他5名被害女童(10-11岁)。
[Case Handling Process] 【案件办理情况】
On April 14, 2013, the local intermediate people's court held upon trial that Qi committed a crime of rape and he should be sentenced to death with suspended execution of two years and deprival of political rights for life. After the judgment came into force, it was submitted to the Higher People's Court of __ Province (hereinafter referred to as the “Higher People's Court”) for review. The Higher People's Court ruled to set aside the original judgment and remand the case for retrial on the ground that some fact-finding in the original judgment was unclear. The local intermediate people's court retried the case and entered a judgment to execute life imprisonment with deprival of political rights for life. Qi refused to accept the judgment and appealed. Upon trial, the Higher People's Court entered a final judgment and decided to execute the fixed-term imprisonment of ten years with deprival of political rights for one year. At the request of the People's Procuratorate of __ Province, the Supreme People's Procuratorate lodged a protest in the Supreme People's Court under the trial supervision procedure and raised that the facts in this case were clear, evidence was authentic and sufficient, the circumstances were execrable, the judgment entered by the Higher People's Court was erroneous in the application of law and the sentencing was abnormally light. In July 2018, the Supreme People's Procuratorate entered a final judgment, fully adopted the protest opinions of the Supreme People's Procuratorate, determined that Qi, defendant in the original trial, was guilty of rape and child molestation, and decided to execute life sentence with deprival of political rights for life. 2013年4月14日,当地中级人民法院经审理认定齐某犯强奸罪,判处死刑缓期二年执行,剥夺政治权利终身。判决生效后,报省高级人民法院复核。高级人民法院以原判认定部分事实不清为由,裁定撤销原判,发回重审。该中级人民法院经重新审理,作出判决决定执行无期徒刑,剥夺政治权利终身。齐某不服提出上诉。省高级人民法院经审理,作出终审判决,决定执行有期徒刑十年,剥夺政治权利一年。根据该省检察院提请,最高检依照审判监督程序向最高人民法院提出抗诉,提出本案事实清楚,证据确实充分,情节恶劣,省高级人民法院判决属于适用法律错误,量刑畸轻。2018年7月,最高法作出终审判决,全面采纳最高检抗诉意见,认定原审被告人齐某犯强奸罪、猥亵儿童罪,决定执行无期徒刑,剥夺政治权利终身。
[Significance] 【典型意义】
In this case, the Supreme People's Procuratorate lodged a protest according to the law. The Procurator-General of the Supreme People's Procuratorate attended the Judicial Committee of the Supreme People's Court in person, which was the first time for the Procurator-General of the Supreme People's Procuratorate to attend the Judicial Committee of the Supreme People's Court. This case has reflected the firm attitude of the Supreme People's Procuratorate in severely cracking down on crimes of infringing on juveniles. The Supreme People's Procuratorate wasted no time in issuing this case as a guiding case, determined the standards for accurately grasping evidence in sexual assaults of juveniles, and guided all regions in accurately and effectively punishing sexual assaults of juveniles, which has generated great social impacts. In October 2018, according to the campus safety issues reflected in this case and in light of the relevant investigation and research situations, the Supreme People's Procuratorate issued to the Ministry of Education the “No. 1 Procuratorial Proposal” for promoting the campus safety construction and effectively preventing crimes of sexual assaults of juveniles. 本案中,最高检依法提出抗诉,最高检检察长亲自列席最高法审判委员会,这是最高检检察长首次列席最高法审判委员会,体现了最高检严厉打击侵害未成年人犯罪的坚定态度。最高检及时将本案作为指导性案例下发,确定了准确把握性侵害未成年人证据标准,指导各地准确有力惩治性侵害未成年人犯罪,在社会上产生了较大影响。2018年10月,最高检还根据本案反映出的校园安全问题,结合相关调研情况,向教育部发出了“一号检察建议”,推动校园安全建设,有效预防性侵害未成年人违法犯罪。
 
     
     
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