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No.11 of the Second Group of Model Cases involving the Protection of People's Livelihood Issued by the Supreme People's Court: People v. Zhou XΧ in Shanghai (case of robbery: helping educate a juvenile delinquent after his sentence)
最高人民法院公布保障民生第二批典型案例之十一:上海周某抢劫案(判后帮教少年犯)
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No.11 of the Second Group of Model Cases involving the Protection of People's Livelihood Issued by the Supreme People's Court: People v. Zhou XΧ in Shanghai (case of robbery: helping educate a juvenile delinquent after his sentence)
(case of robbery: helping educate a juvenile delinquent after his sentence)
最高人民法院公布保障民生第二批典型案例之十一:上海周某抢劫案(判后帮教少年犯)
[Key Terms]
placed on probation ; community correction ; shall execute ; may apply
[核心术语]
宣告缓刑;社区矫正;应当执行;可以适用
[Disputed Issues]
Where an actor is sentenced to fixed-term imprisonment and placed on probation, may a court decide to impose community correction on him?
[争议焦点]
行为人被判处有期徒刑并宣告缓刑的情况下,法院能否决定对其进行社区矫正?
[Case Summary]
Community correction is a method to utilize community resources to educate and transform criminals without separating criminals from community. In 2011 Amendment (VIII) to the Criminal Law clarifies community correction which provides that “a convict on probation shall be subject to community correction during probation and if none of the circumstances as set out in Article 77 of this law occurs the original sentence shall no longer be executed upon expiration of the probation...
[案例要旨]
社区矫正是一种不使罪犯与社会隔离并利用社区资源教育改造罪犯的方法。2011年《刑法修正案(八)》明确规定了社区矫正即对宣告缓刑的犯罪分子在缓刑考验期限内依法实行社区矫正如果没有本法第七十七条规定的情形...
No.11 of Second Group of Model Cases regarding Guaranteeing People's Livelihood Issued by the Supreme People's Court: Case of Robbery Committed by Zhou in Shanghai Municipality (Post-trial Help and Education of Juvenile Delinquents) 最高人民法院公布保障民生第二批典型案例之十一:上海周某抢劫案(判后帮教少年犯)
1. Basic Facts 主要案情
On the afternoon of October 9, 2002, upon planning in advance, Defendant surnamed Zhou and the accomplice Deng Xiaoyong (who has been sentenced) came to the victim Pan Hongliang's temporary domicile in Room 403, Lane 10, No. 380 Honggu Road, Shanghai Municipality, bound Pan's hands and feet with packing tapes, threaten Pan with a knife, robbed Pan of 650 yuan in cash, a mobile phone (Bird S2000) valued at 1,760 yuan and a bank debit card, intimidated the victim into providing the passwords of the bank debit card, and afterwards withdrew 1,200 yuan from the card at the bank. Subsequently, Zhou left Shanghai and spent more than five years in panic in Dongguan City, Guangdong Province and other places. During this period, the accomplice was captured by the public security authority and was sentenced to a fixed-term imprisonment of ten years. 2002年10月9日下午,被告人周某与同案人邓小勇(已被判刑)经预谋至上海市虹古路380弄10号403室被害人潘红亮暂住处,用封箱胶带捆绑被害人潘红亮手脚,并持刀威胁,抢劫被害人潘红亮人民币650元、价值人民币1,760元的波导牌S2000型移动电话一部以及银行储蓄卡一张,并威逼被害人提供储蓄卡密码,随后持该储蓄卡至银行提取人民币1,200元。随后,周某离开上海,辗转于广东东莞等地,胆战心惊地过了5年多的时间。期间,其同案犯被警方抓获,并被判处有期徒刑十年。
In December 2007, Zhou left a message on HYPERLINK "http://www.yangguangxia.com" www.yangguangxia.com (“Hotline for Delinquents in China”) that was established by Wang Jinyun, a volunteer of Shenzhen Help and Education Volunteers' Organization to confide his anguish and depression. On March 21, 2008, Defendant Zhou finally summoned all his courage to surrender himself to the public security authority of Shanghai Municipality under the company of Wang Jinyun. 2007年12月,周某在深圳帮教志愿者王金云创办的“中华失足者热线”上留言,倾诉心中的苦闷与压抑。2008年3月21日,被告人周某最终鼓起勇气在王多金云的陪伴下前往上海公安机关投案自首。
2. Judgment 裁判结果
The court held that: Defendant Zhou, in collusion with others, robbed the properties of a citizen by means of violence for the purpose of illegal possession. His act has constituted a crime of robbery and he should assume criminal liabilities according to law. When committing the crime, Defendant Zhou was under 18 years old. He voluntarily surrendered himself and had repentance; therefore, he should be subject to a mitigated punishment in accordance with law. Defendant Zhou voluntarily confessed to his crime and paid compensation for the victim's economic losses. The facts charged by the public prosecution organ were clear and the evidence was sufficient. The defense opinion of the defender that Defendant Zhou should be sentenced to a suspended sentence was legal and based on evidence and therefore should be adopted; the defense opinion of the defender that the act of Defendant Zhou was a general robbery and Zhou was an accessory offender should not be adopted according to the facts and circumstances of this case; and the relatively light subjective malevolence and crime circumstances of Defendant Zhou in the joint crime should be fully considered in sentencing. In order to protect the personal and property rights of citizens, in accordance with item (1) of Article 263, paragraphs 1 and 3 of Article 17, paragraph 1 of Article 67, Article 72, paragraphs 2 and 3 of Article 73, Article 53, and Article 64 of the Criminal Law of the People's Republic of China and Article 1 of the Interpretation of the Supreme People's Court on Several Issues concerning the Specific Application of Law in the Handling of Voluntary Surrender and Meritorious Behaviors, Defendant Zhou was sentenced to a fixed-term imprisonment of three years with a three-year suspended execution, and a fine of 2,000 yuan for having committed the crime of robbery. 法院认为,被告人周某以非法占有为目的,伙同他人采用暴力方法入户抢劫公民财物,其行为已构成抢劫罪,依法应当承担刑事责任。被告人周某犯罪时不满十八周岁,具有自首情节,确有悔改表现,依法减轻处罚。被告人周某自愿认罪,并对被害人的经济损失作了退赔,公诉机关的指控事实清楚,证据确实充分。辩护人关于对被告人周某判处缓刑的辩护意见,合法有据,予以采纳;辩护人关于被告人周某的行为系一般抢劫犯罪,且系从犯的辩护意见,根据本案事实和情节,不予采纳;被告人周某在共同犯罪中主观恶性、作案情节相对较轻,量刑时予以充分考虑。为保护公民人身和财产权利,依照《中华人民共和国刑法》第二百六十三条第(一)项、第十七条第一款、第三款、第六十七条第一款、第七十二条、第七十三条第二款、第三款、第五十三条、第六十四条以及《最高人民法院关于处理自首和立功具体应用法律若干问题的解释》第一条之规定,判决被告人周某犯抢劫罪,判处有期徒刑三年,缓刑三年,并处罚金人民币二千元。
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