Problem description:
1. A person can be sentenced to death for taking bribes, but he used the money to help some poor people and let them live a happy life. He hasn't moved a penny, and his job is fine.
How should the court judge?
2. A man's mother has cancer, and she is in pain every day. Sadly, her daughter had to take off her oxygen mask. She killed someone.
How should the court judge?
A person's ID password was stolen on the Internet, and the thief used his name to talk nonsense on the Internet, which broke the law. It happened that that time was the time when he often surfed the Internet, but it happened that he was playing games at that time, and the computer was a home computer. The public security organ decided that he was talking nonsense on the Internet and asked him to bear legal responsibility.
What is he going to do?
Experts, help me answer these questions, thank you, thank you!
Analysis:
First, 1 and 2 can be found guilty.
1 constitutes a crime of accepting bribes, and the whereabouts of the stolen money does not affect the composition of the crime of accepting bribes.
2 constitutes the crime of intentional homicide, and the motive of murder does not affect the constitution of intentional homicide. The first two cases, if there is evidence to prove that their actions are in good faith, can be used as sentencing circumstances for judges to consider lightening or reducing criminal responsibility when making judgments.
In the third case, if only from the legal point of view, if he can't produce evidence to prove that he didn't do these things, he needs to bear the corresponding legal responsibility. Because the hacker used his ID and made an illegal act in his name. We can refer to the concept of agency by estoppel in contract law. (agency by estoppel means that although the actor has no agency, the behavior of the principal has caused enough superficial characteristics, so that the bona fide counterpart objectively has sufficient reasons to believe that the actor has an agency. In short, it is an act without an agent, but on the surface it is enough to make people believe that it has an agent and regard it as an agent. In this case, the hacker's illegal act of stealing his ID online is enough to convince the public security organs that he did it, so if he can't produce evidence to prove that the act is not his own, he will bear the corresponding legal consequences, because the law pays attention to evidence.
In addition, I want to analyze the problems existing in individual cases from common sense:
In the first case, how can he prove that all the money he took bribes was used for relief, and he didn't move a penny? Secondly, why didn't he turn over the money he took bribes to the state, and the relevant departments should investigate the responsibility of the briber? The ancients said: it is better to teach people to fish than to teach people to fish! The happy life of those poor people can't last long on his relief. Can it be a reason for him to take bribes to help a small number of poor people? As for saying that he has no problems at work, it is even more unbelievable. We all know the old saying, "Be soft and tough". The amount of bribes that can be sentenced to death is more than 654.38+10,000 yuan stipulated in China's criminal law, and the circumstances are bad. With these huge sums of money, how can we not do something beneficial to the bribers?
Then forward a real case, taken from (lawexpert/bbs/printpage? board id = 1 & amp； ID=82424)
"The deputy mayor of Linxiang City, Hunan Province, took bribes to help the poor and caused controversy."
On the evening of July 9, 2004, Yu Bin, then deputy mayor of Linxiang City, Hunan Province (a county-level city under the jurisdiction of Yueyang City), received a notice from the Anti-Corruption Bureau of Yueyang City Procuratorate and wanted to talk to you. Yu Bin said that he was well aware that the Municipal Anti-Corruption Bureau had conducted a month-long investigation and evidence collection on his "bribery" problem.
On July 16, the People's Procuratorate of Yueyang City criminally detained Yu Bin on suspicion of accepting bribes, and approved his arrest on July 30. In the same year1October 22nd, 65438, according to the designation of Yueyang Municipal People's Procuratorate, the People's Procuratorate of Junshan District of Yueyang City filed a public prosecution with Junshan District People's Court for accepting bribes.
Junshan District Procuratorate accused: "From April 5438, 2006 to the first half of 2003, Yu Bin took advantage of his position and accepted bribes from Zhong Xijin and others totaling RMB 225,000."
"These allegations were all voluntarily confessed by me when I was under investigation." Yu Bin said that he has worked in the Commission for Discipline Inspection for more than ten years and has been in charge of the procuratorial work of cases. "I am too familiar with the handling process. As long as I don't say it, it's hard to find it. " He said that he thought he was enlightened and took the initiative to truthfully state all the facts that organizations and procuratorial organs needed to know.
It is a crime to accept bribes to "help the poor"
On June 25, 2004, the Junshan District People's Court heard the case. Defendant Yu Bin presented 1 1 bills and dozens of testimonies to the court, confirming that 154700 yuan of the money he received was used for poverty alleviation, social sponsorship and official activities, and thought it unnecessary to determine the amount of bribes. The court held that of the 225,000 yuan accused by the procuratorate, 95,000 yuan was a bribe, and another 654.38 million yuan was a gift from a friend, but it should be regarded as illegal income. The allegations of other funds are not accepted because of "insufficient evidence".
The court also held: "The defendant's defense opinion holds that the part of the money collected for official activities cannot be recognized as the amount of bribes, because the defendant Yu Bin's bribery has been implemented, and the whereabouts of the money will not affect the composition of the crime of accepting bribes; But in this case, it can be considered as discretionary sentencing circumstances, and then Paul Yu Pin was released on bail pending trial.
On February 23rd, 65438, Junshan District People's Court made a judgment of first instance: "1. Defendant Yu Bin was convicted of accepting bribes, sentenced to three years in prison, suspended for five years, and confiscated 60,000 yuan of property. 2. According to the law, the defendant Yu Bin's illegal income of 95,000 yuan and 65,438+10,000 yuan shall be recovered and turned over to the state treasury. "
1.5 million bribes for help.
After the judgment of the first instance, the Junshan District Procuratorate of Yueyang filed a protest on the grounds that the sentence was too light, and Yu Bin also filed an appeal on the grounds that he should not be sentenced.
On March 10, 2005, Yueyang Intermediate People's Court held a second trial to hear the case. Defender once again pointed out that during his tenure as director and deputy mayor of Linxiang City, Yu Bin used 154700 of the money received in the name of the Education Bureau or the city * * * to help subordinate towns, enterprises and schools, which solved many practical problems.
Yu Bin admitted that he accepted other people's property privately, but he thought that he only violated the party discipline and state laws and did not commit crimes. All the property he received was used for official activities, and there was no subjective intention to take it for himself.
Yu Bin's defense lawyer believes that the defendant used 154700 yuan for poverty alleviation, social sponsorship and official activities, which fully shows that the defendant's behavior does not have the purpose and motivation of personal possession. Can not be punished according to the crime of corruption in the criminal law.
When all walks of life are still arguing fiercely about the case of accepting bribes by Yu Bin, Yueyang Intermediate People's Court made a final ruling of "rejecting the protest, appealing and upholding the original judgment" on July 7, 2005, and delivered the ruling on July 26. Yu Bin expressed regret about this.
Poverty alleviation factors have been considered in sentencing.
(Reporter Lang) Legal experts believe that Yu Bin's bribery case was moderately sentenced, and he did not even severely punish Yu Bin, probably considering that he used the bribes to help the poor. "Of course, this has played a certain role."
Tian Pingan, a doctoral supervisor at Southwest University of Political Science and Law, pointed out that all the facts can completely prove that Yu Bin constituted the crime of accepting bribes. The crime of accepting bribes and how to use the money of accepting bribes are two different concepts. "His uniqueness may be due to his conscience." However, Professor Tian was still surprised that Bin used the proceeds of bribery to help the poor.
"However, according to the judgment, the court still considered the factors of using bribery to help the poor when sentencing, and did not impose a heavier punishment on its judgment."
Former secretary of the iron fist discipline inspection commission
Shen Hongbo, member of the Standing Committee of the Discipline Inspection Commission of Linxiang City, told reporters that Yu Bin was once an influential figure of the Discipline Inspection Commission, with high professional level and strong external coordination ability. During the work of the Commission for Discipline Inspection, five cadres at the official level (administrative level and Yu Bin level) who violated discipline were investigated.
"What happened to him shocked me." Shen Hongbo told reporters, "In my impression, Yu Bin is a cadre who is not greedy for money and does not take advantage of petty gain."
A cadre of the Discipline Inspection Commission of Linxiang City, who did not want to be named, told the reporter that when Yu Bin was handling the case of a director of Linxiang City, a classmate of the director was a leading cadre in Yueyang City. When the superior leaders greeted him, Yu Bin was under pressure to find out the case and removed the post of director.
Qiu, deputy secretary of the Discipline Inspection Commission of Linxiang City, said that Yu Bin was very dedicated during the work of the Discipline Inspection Commission and was the "backbone" of the unit. He is a very frank person and is not afraid of offending leaders or colleagues. He has different opinions, so long as it makes sense, he will stick to it. "Now some leaders like to flatter their subordinates." Qiu said that Yu's straightforward personality offended many people.
"When dealing with specific problems, the leader greets and writes a note, and he never appreciates it." Liu Shijun, deputy secretary of the Discipline Inspection Commission of Linxiang City, said that as a colleague for many years, he knew very well that Paul Yu Pin was a principled person.
"He offended individual leaders, and the specific situation is not convenient to say." Liu Shijun lamented that Yu Bin is a cadre who can be strict with himself, but he is not good at protecting himself.
On July 24, the reporter saw Yu Bin in a dilapidated rental house on the east side of the Third Bridge in Linxiang City.
Another practical idea
Yu Bin does not deny that he accepted a bribe of RMB85,000 from Zhong Xijin, the project manager of the office building of the Education Bureau, during his tenure as the director of the Education Bureau.
"I worked in the Commission for Discipline Inspection 1 1 year, during which I was responsible for the supervision of project bidding. I deeply feel that China's current project bidding system and the existing budget quota standards for infrastructure projects have formed a huge profit margin in the process of infrastructure construction, which is an important reason why many infrastructure bosses become rich overnight. So, when Zhong Xijin gave me 85,000 cash, I didn't refuse. My idea at that time was that as long as it was not my own money, using it to solve some practical problems and contradictions in my work did not constitute a matter of principle. " Yu Bin explained the reasons for accepting bribes.
"I am a deputy mayor who can control this 10,000 yuan, which is not as good as an ordinary wage earner." Yu Bin said that during his tenure as deputy mayor, he was in charge of finance, urban construction, land, politics and law, * * * and so on. There are many contradictions and problems that need to be solved by funds in the branch pipeline, and the municipal finance is very tight.
In this regard, the evidence presented in the trial also shows that Yu Bin is the deputy mayor, and the annual expenses allocated by the county finance are only 6.5438 million yuan, including the cost of Yu Bin's car.
"Take it from the people and use it for the people"
According to two court investigations, before the Spring Festival in 2002, the secretary of a township party committee found Paul Yu Pin, then the deputy mayor, and said that there were still several township cadres' salaries in the township, so Paul Yu Pin took out 10,000 yuan from these "gifts" to solve the salary problems of several township cadres. In the summer of 2003, a village caused a dispute because of the damaged channel, and the villagers went to the city to ask the mayor for instructions to repair the channel. Yu Bin immediately gave the village 5,000 yuan to settle the dispute. ...
Yu Bin said that over the years, he has distributed at least 6.5438+0.5 million yuan in bribes and gifts from friends.
"My practice, formally speaking, is indeed a crime of accepting bribes, but I don't have my own possession, so it doesn't constitute a crime of accepting bribes." Yu Bin believes that he has adopted an unconventional "take it from the people and use it for the people".
At the same time, he also explained why the stolen money should be turned over in accordance with the organizational procedures. "Nothing more than three departments, their own units, procuratorates and discipline inspection commissions. Give it to your own unit and procuratorate, and this money may become a bonus for some unit staff; Handed over to the Commission for Discipline Inspection, I will be stretched as a deputy mayor and solve practical problems. "
Another official of people's parents
Yu Bin said that before he became the director of the Education Bureau, the organization had talked to him: "You have worked in the Procuratorate of the Commission for Discipline Inspection for too long and suffered too many grievances. Go to the Education Bureau for a while to avoid contradictions, so that you can work in the general election. "
After serving as the director of education for one year and eight months, Yu Bin was elected as the deputy mayor of Linxiang City. During his more than one year working in the Education Bureau, he left a deep impression on his colleagues.
Chen Jianlin, deputy director of Linxiang Education Bureau Office, told reporters that the Education Bureau manages thousands of teachers and tens of thousands of students, and it is inevitable that teachers will send red envelopes to ask him for help. He resolutely refused the red envelope sent by the teacher and returned it to the party through the office staff.
Chen Jianlin also said that Yu Bin was never greedy for petty gain. He never took home cigarettes and alcohol given to him by some friends, classmates and colleagues, and put them in the office and the canteen of the Education Bureau to receive guests. When he is going to work in * * *, the office of the bureau will calculate these consumed cigarettes and alcohol into cash for him. Yu Bin severely criticized the comrades in the office: "This is corruption." Finally, I joked: "I didn't buy these things myself, but I took them from the people and used them for the people." Anyway, the unit has to receive guests. "
"What crime did Yu Bin commit?" Feng Gang, assistant director of Linxiang Education Bureau, bluntly said, "The corrupt officials who have been investigated now have cars, villas and mistresses. What does Yu Bin have? "
"His alternative bribery led to his alternative sadness, although the starting point was for the people." Someone lamented. (The pictures in this edition are provided by special correspondent Wang Ganlin except the signature. )