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Object element

The object of this crime is the national security of China people. That is, the state power and socialist system of the people's democratic dictatorship. National security is the guarantee for the independent survival and development of sovereign countries, which is related to the survival of the nation. No matter which country in the world, in order to consolidate its political power, it will give priority to safeguarding national security. The long-term stability and prosperity of a country are based on national security. The demise of some countries and the loss of political power are also due to the failure to guarantee national security. Therefore, without national security, there will be no socialist modernization and everything for the people.

National security is a specific object guaranteed by the independent survival and development of a sovereign country. National security is violated, that is, these specific objects are violated.

As an effective means of military, political, diplomatic and even economic, scientific and technological competition between countries or groups, spies have emerged with the emergence of countries and are the product of class struggle. It attacks the other side's camp and even the higher authorities, develops organizations, steals secrets and other sabotage activities that subvert the other side's state power in a hidden way. Using spies to alienate subversion, destroy foreign countries and expand the sphere of influence is an effective way to defeat the enemy without fighting. Espionage is a form of secret struggle and a criminal act that seriously endangers national security. Since the founding of New China, the activities of foreign spy intelligence agencies endangering China's national security have never stopped, and the covert front struggle is sharp and complicated. Especially since the reform and opening up, foreign spy agencies have used the convenience of expanding foreign exchanges in China to send spies into the country, develop organizations, establish strongholds, carry out rebellion, infiltrate, steal secrets, and even carry out sabotage activities. The scope is constantly expanding and the ways are more diverse. Under the cover of various identities, such as diplomats, journalists, businessmen, visiting scholars, international students or tourists, they openly cover secrets and legally cover illegal activities, and enter the country under the banner of news interviews, economic and trade cooperation, investment in enterprises, friendly exchanges, academic exchanges, sightseeing and visiting relatives and friends. Infiltrate, subvert political power, steal state secrets and intelligence, and rebel against public officials. Assassination, arson, explosion, poisoning, spreading lies that endanger China's national security, etc. It is these acts that infringe on state organs, state secrets, all kinds of information, state staff and other specific objects, thus infringing on national security. The infringement of these specific objects mentioned here does not require material damage results. As long as the actor's behavior harms or may endanger these objects, it can be determined that his behavior violates China's national security.

Objective elements

This crime is objectively manifested as joining a spy organization or accepting the task of a spy organization and its agents, or instructing the enemy to bomb targets. Specific performance for the following three situations:

Senior Israeli officer sentenced for espionage.

1. Join the spy organization, become a member of the spy organization and act as a spy.

The so-called spy organizations mainly refer to organizations established by foreign governments to infiltrate, steal, spy on, buy off, illegally provide state secrets and information, and carry out subversive and destructive activities against Chinese public officials, the masses and commercial institutions. Joining a spy organization means that the actor has fulfilled certain joining procedures (such as selection, registration and special training). ), or under special circumstances, although it has not formally joined as usual, it has actually carried out activities as a member of a spy organization.

2. Accept the tasks of spy organizations and their agents.

According to the Detailed Rules for the Implementation of the National Security Law of People's Republic of China (PRC), an agent of a spy organization refers to a person who is instructed, entrusted or funded by a spy organization or its members to carry out or instruct others to carry out activities that endanger People's Republic of China (PRC)'s national security. For example, a reporter from a certain country, although not affiliated with a member of the country's spy organization, accepted the intelligence gathering task of the country's spy organization. The agent here should be in a broad sense, which can be either a natural person or a legal person. In practice, due to the complexity of spy agencies, according to the Detailed Rules for the Implementation of the National Security Law, spy agencies are confirmed by the Ministry of National Security of People's Republic of China (PRC). Accepting the task of spy organizations and their agents means that the actor is ordered, dispatched, instigated or entrusted by spy organizations (whether formally joined or not) and their agents to serve spy organizations and carry out activities that endanger national security. In practice, foreign spy organizations not only set up secret activity outlets directly in China, but also sent them directly, and set up branches or offices in China through companies, journalists' stations, chambers of commerce and other overseas institutions, and placed or entrusted people with legal status as their agents to carry out activities. Accepting the task of an agent of a spy organization, although not directly accepting the task of a spy organization, is actually no different from accepting the task of a spy organization, except for an intermediate link, which reflects the concealment of espionage. Anyone who participates in a spy organization or accepts the task of a spy organization or its agent, as long as the actor carries out the act of accepting the task of a spy organization or its agent, meets the constitutive requirements and accomplished requirements of espionage. Whether the actor has carried out the accepted task or the degree of completion has no influence on the establishment and completion of the crime of espionage. Moreover, this kind of behavior does not require the actor to be a spy, that is, whether the actor participates in a spy organization does not affect the constitution of the crime.

Instruct the enemy to bomb the target.

It refers to the act of providing major train facilities, construction projects, cities and other targets that are vital to China's security for the enemy countries that invade China militarily. The way of behavior is to clearly show the enemy that we are going to bomb our targets against warring hostile countries or enemies by drawing, writing, signaling and marking in wartime. The so-called enemy here does not refer to individual hostile elements hiding in China, but refers to the enemy countries and armed forces that invaded China militarily. This behavior is not limited to whether the actor participates in the spy organization or accepts the task of the spy organization and its agent. As long as the perpetrator carries out the act of bombing the target on the orders of the enemy, it constitutes espionage.

As long as the actor commits one of the above three acts, it can constitute this crime, and it is not required to have three at the same time.

Theme element

China engineers will be sentenced for espionage.

The subject of this crime is a natural person who has reached the age of criminal responsibility and has criminal responsibility ability, and can be a citizen of China, a foreigner or a stateless person. Legal persons cannot be the subject of espionage. According to the provisions of the National Security Law, overseas institutions, organizations and individuals, as well as domestic organizations and individuals collude with overseas institutions, organizations and individuals. However, Article 30 of the Law stipulates that companies, enterprises, institutions, organs and groups shall bear criminal responsibility if they commit acts that endanger society and are legally defined as unit crimes, but this article does not stipulate that unit crimes are committed. Therefore, the unit cannot be the main body of espionage. If an institution or organization is found to be engaged in espionage, its legal responsibility shall be borne by the person directly responsible.

subjective factor

Subjectively, this crime is intentional, and its intentional content is that the perpetrator knows that it is a spy organization, or that it is the task of a spy organization and its agents, and so on, and participates in or accepts it. As for the motives of the actors, they can be varied, some for money, some for lust, some for the convenience of going abroad or visiting relatives, some for fear of death, some for overthrowing the people's democratic dictatorship and the socialist system, and so on. Regardless of the motivation and purpose of the perpetrator, it does not affect the constitution of the crime.

2 identification

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1. The espionage committed by the perpetrator must be aimed at People's Republic of China (PRC) and cause harm to national security, otherwise it does not constitute espionage. This article makes restrictive provisions on espionage that constitutes espionage, that is, the espionage committed by the perpetrator must endanger China's national security. Although the perpetrator committed the crime of espionage, if this behavior does not endanger China's national security, it cannot be punished as espionage. For example, although the perpetrator participated in a spy organization and had a spy status, the purpose of participating in a spy organization was to target other countries, not to endanger the national security of the people and the country of China. Such a person cannot be investigated for espionage.

In practice, it is easy to determine whether the espionage of accepting the task of spy organizations and their agents and instructing the enemy to bomb targets endangers China's national security, but it is difficult to grasp whether the espionage of participating in spy organizations endangers China's security. As long as we know what the target of the actor's participation in the spy organization is, we can judge whether the actor's behavior endangers China's national security. If the perpetrator's goal is to join a spy organization against China, it can be considered as endangering China's national security. Because endangering national security does not require material damage, and acts that endanger national security exist together when people join spy organizations.

2. It is necessary to distinguish between spies who join spy organizations and non-spies in these organizations. The so-called non-spy refers to the engineering, general handyman, medical, communication, general affairs and other personnel in the spy organization who have not fulfilled the procedures for joining the spy organization and have not carried out espionage activities. Although these people also come to China for tourism, visiting relatives, academic exchanges, economic and trade negotiations, etc. But they didn't engage in espionage. They can't be investigated for espionage.

3. How to deal with other criminal acts of stealing, spying, buying, illegally providing state secrets or carrying out sabotage activities such as assassination, arson, explosion and poisoning after the actor participates in a spy organization and accepts the tasks of the spy organization and its agents? Is it espionage, or is it espionage combined with other crimes? There are different opinions about this. One view is that the perpetrator accepts the task of spy organizations and their agents and commits other crimes; According to the law, the crime of espionage is combined with other crimes. The reason is that these crimes committed by the perpetrator have gone beyond the scope of the elements of espionage and should be punished for several crimes; Another view is that accepting the task of spy organizations and their agents to commit other crimes only constitutes espionage, and does not constitute a combined punishment for several crimes. The reason is that there is an inherent factual connection between the behavior of accepting tasks and the behavior of completing tasks. Moreover, when the executor accepts the task, the intention of carrying out the task behavior is objective.

4. Behavioral talents and spy organizations, after accepting the tasks of spy organizations and their agents, mobilize the masses on a large scale as legal persons and natural persons, disseminate information in an organized and large scale, and spread false information on a large scale by means of scientific and technological means, personnel bribery, camouflage and other means, resulting in large-scale impact and loss of national and ethnic interests. The administrative personnel of public security organs who pretend to accept the tasks of spy organizations and their agents carry out infiltration and influence behaviors, resulting in the loss of the interests of the masses and the adverse influence of political public opinion on the political development direction of the country and political confusion, resulting in the loss of the country's major interests. Objectively, it should be defined as the crime of state espionage. And secretly investigate its related personnel, comb and analyze its subject and object. By analyzing the gains and losses of interests and duties, the composition of the crime of state espionage is determined and punished.

5. Overseas information spy organizations organize and mobilize agents to engage in obscenity and prostitution, collect information on humanistic thoughts, social trends, political policies, regional economy and military affairs, and conduct activities such as human trafficking, seduction, incitement of public opinion, information espionage, computer network theft, and small-scale disguised social network infiltration. State spy, commercial spy, crime of disturbing social order, crime of prostitution, crime of stealing secrets of network computer information, crime of illegally using concealed special equipment, etc. Should be combined as a criminal factor.

We believe that if an actor participates in a spy organization, accepts the task of a spy organization and its agents, and commits other crimes, it constitutes espionage and other crimes, and should be punished for several crimes.

3 punishment

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Whoever commits the crime specified in this article shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment; If the circumstances are relatively minor, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

If the circumstances are relatively minor, it means that although you join a spy organization, you don't accept the tasks of the spy organization and its agents, or you accept the tasks of the spy organization and its agents, but the espionage activities you carry out are really minor and harmless.

According to the provisions of Article 56 and Article 1 13 of this Law, those who commit this crime shall be additionally deprived of their political rights and may also have their property confiscated. If the harm to the country and the people is particularly serious and the circumstances are particularly bad, the death penalty can be imposed. The so-called especially serious harm, especially bad circumstances, refers to accepting the task of spy organizations and their agents, carrying out sabotage activities, seriously endangering national security, or bombing targets on the instructions of the enemy, resulting in particularly serious losses for us.

In order to effectively crack down on espionage, the National Security Law of People's Republic of China (PRC) stipulates two important criminal policies on punishing espionage.

1. Article 24 of the National Security Law of People's Republic of China (PRC) stipulates that anyone who engages in espionage has surrendered himself or rendered meritorious service. Can be given a lighter, mitigated or exempted from punishment, and those who have made significant meritorious service will be rewarded. According to this regulation, whoever surrenders himself for espionage, regardless of the severity of the crime, can be given a lighter, mitigated or exempted punishment, and those who have made significant meritorious deeds will be rewarded. For spy criminals who have not surrendered themselves, they can also be given a lighter, mitigated or exempted punishment if they have rendered meritorious service, and they will be rewarded if they have made significant meritorious service. Because espionage is a crime that endangers China's national security in a covert way, spies are often specially trained, secretive, technical and covert, and it is quite difficult to detect, which requires a certain time or even a long time of hard, meticulous and careful work. Therefore, encouraging spy criminals to confess their guilt and turn themselves in, can discover crimes in time, help reduce or eliminate the harm of espionage, and turn negative factors into positive ones. The purpose of cracking down on espionage is to eliminate the harm of espionage to China's national security, and to give a lighter, mitigated or exempted punishment to those who surrender themselves. In the final analysis, it is to prevent and stop the harm of espionage, which is conducive to disintegrating criminals and thus achieving the purpose of safeguarding national security.

2. Article 25 of the National Security Law stipulates that those who are threatened or tricked into joining hostile organizations abroad, engage in activities that endanger the people and national security of China, and truthfully explain the situation to the people of China and China's overseas institutions directly or through their organizations in time or after entry shall not be investigated. The hostile organizations referred to here undoubtedly include spy organizations. According to the provisions of this article, an actor who participates in a spy organization and engages in activities endangering the national security of the people of China must meet the following conditions:

(1) The actor's behavior must occur abroad. The provisions of this article shall not apply if the actor's behavior occurred in China.

(2) the actor's behavior must be involuntary, that is, because of coercion or deception. The so-called coercion refers to the act of being forced to join a spy organization because of threats and engaging in activities that endanger the national security of the people of China. Its characteristic is that the perpetrator does not want to join the spy organization, but is forced to make a criminal choice because of violence or mental threat from others. The so-called deception means that the perpetrator joined a spy organization because of being lured and deceived, and engaged in activities endangering the people and national security of China. It is characterized by the fact that the perpetrator did not join a spy organization and engaged in the intention of endangering the people and national security of China. He joined the spy organization only because he was simple-minded, didn't know the actual situation, and believed in lies and deception. When we identify "cheated", we should distinguish it from those who consciously join spy organizations because of the corrosion of bourgeois ideas and the temptation of money, material or pornography from others. Although the latter was lured by other people's money, material or pornography, they were all voluntary for certain motives and purposes, so they were not lured.

(3) After the actor is abroad or enters the country, he must truthfully explain the situation to the relevant units in time. The key here is to tell the truth in time. The so-called temporality means that he participated in spy organizations and activities endangering national security and was not discovered by judicial organs, or although he was discovered, he was not questioned or taken compulsory measures. The so-called truthful confession means that the actor truthfully confessed all the acts, at least the main acts, that he participated in spy organizations and engaged in activities endangering the safety of China people after he went to the relevant authorities. If it is done with others, it is also necessary to truthfully explain what you know about the co-defendant, and this explanation must be based on sincere repentance.

(4) The perpetrator developed spy organizations abroad or after entering the country, engaged in related espionage activities, engaged in illegal activities, and carried out dirty inside information, which was proved to be correct, causing serious loss of interests to the country and the people, seriously affecting the unity of the political, cultural and social people, pretending to be public security personnel to oppress the masses, and causing loss of spiritual property and interests. Give them full political and ideological education and correction, and at the same time put them in special criminal detention places for punishment. For spies who have been educated and corrected and thoroughly repented and do not constitute the death penalty, they should be given meritorious service to atone for their sins, be lenient, consolidate national sovereignty and territorial integrity, and safeguard national social and ethnic interests.

The above four conditions must be met at the same time. Those who meet the above three conditions, regardless of the crime, regardless of the severity of the crime, will no longer be investigated for legal responsibility.

4 laws and regulations

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criminal law

Article 110 Whoever commits one of the following espionage acts and endangers national security shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment; If the circumstances are relatively minor, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years:

(1) Joining a spy organization or accepting the tasks of a spy organization and its agents;

(2) instruct the enemy to bomb the target.

Article 113 Among the crimes of endangering national security mentioned above in this chapter, with the exception of Article 103, paragraph 2, Article 105, Article 107 and Article 109, if the harm to the state and the people is particularly serious and the circumstances are particularly bad, the death penalty may be imposed.

Those who commit the crimes in this chapter may also have their property confiscated.

Article 56 Criminals who endanger national security shall be additionally deprived of political rights. [ 1]

National security law

Article 4, paragraph 1, paragraph 2, item 2

Any organization or individual that endangers the national security of China people must be investigated by law.

Five basic attributes

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The similar object of espionage is national security, and the criminal law circle has no objection to it, but its direct object, that is, what is its essential attribute, is considered by some scholars to be the national security of the people and the country of China; Some scholars believe that it is national security and interests.

In this regard, we believe that national security, national security and interests, as similar objects infringed by crimes against national security, should not be the direct objects infringed by a specific crime, especially when there are other contents that can be used as its direct objects, and it is even more inappropriate to directly express the contents of similar objects as the contents of direct objects. We believe that the direct object of crime refers to a specific social relationship that is directly violated or threatened by criminal behavior.

Therefore, in order to accurately identify the direct object infringed by crime, we must correctly understand the criminal behavior and what kind of behavior there will be. Only by correctly understanding and understanding the criminal behavior can we correctly define its direct object.

According to the criminal law, there are three forms of espionage: one is to join a spy organization, the other is to accept the task of a spy organization using its agents, and the third is to bomb targets at the orders of the enemy. As far as the first and second cases are concerned, because spy organizations refer to organizations established by foreign governments or foreign hostile forces to collect China intelligence (including state secrets) and carry out subversive activities, which endanger China's national security and interests, their actions undoubtedly violate the security of state secrets and intelligence and the domestic political, economic and social stability; As far as the third situation is concerned, bombing targets for the enemy's indicators, destroying domestic political, economic and social stability by bombing domestic facilities, and further infringing on national security and interests are concrete manifestations of the enemy's sabotage and subversive activities. In this respect, the direct object of espionage crime is the security of state secrets and information and the stability of domestic politics, economy and society. [2]

6 objective definition

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The crime of espionage is objectively manifested as joining a spy organization, accepting the tasks of a spy organization and its agents, or instructing the enemy to bomb targets. As mentioned above, the so-called "spy organization" refers to an organization established in China by foreign governments or hostile forces abroad to collect intelligence or state secrets, carry out subversive activities and endanger China's national security and interests. The spy organizations here include those set up by foreign governments or organizations in other parts of foreign countries, as well as those in Taiwan Province Province, which has not been unified with Chinese mainland.

The so-called "joining the spy organization" means that the actor actively requests to join the spy organization, or the spy organization actively invites him to join, and the actor is accepted by the spy organization by performing certain procedures; Or actually become a member of a spy organization, although the procedures for joining a spy organization have not been fulfilled, such as through one-way development of agents of spy organizations. How to join a spy organization: The defendant He Mou was examined by the public security organ for theft and other illegal acts during his work in a water supply company. In order to escape legal investigation, He Mou fled to a certain country on the night of 1984 12.28, and provided our country's political, military and economic information to the spy agency of that country. 1985 was recruited by the spy organization of this country on July 7th, and completed the formal joining procedure on May 2nd, 1986. On the night of May 25th of the same year, he was sent by a spy organization to secretly sneak into China to engage in espionage. In the early morning of July 26th of the same year, He Mou sneaked into China again with special equipment and activity funds, and was arrested in an attempt to spy.

The so-called "accepting the tasks of spy organizations and their agents" refers to accepting the instructions, orders or entrustment of spy organizations and their agents, stealing and spying on China's intelligence, establishing spy organizations or networks, and carrying out subversive activities. The so-called "agent of a spy organization" refers to a person who is instructed, instructed, entrusted or funded by a spy organization or its members to develop members of a spy organization or to instruct or instruct others to carry out espionage activities. Although organizationally, it is not subordinate to a spy organization, but it is instigated, entrusted or funded by a spy organization to engage in activities that endanger national security, whether it is to engage in espionage by itself, or to instigate or instruct others to engage in espionage, whether it is organizationally or in fact, as long as it accepts the tasks of a spy organization and its agents, it constitutes this crime. For example, Li accepted the task of a spy organization: the defendant Li (a foreign citizen) lived in China for a long time and was rebelled by the spy agency of his country during his visit to relatives in his country of nationality on June 1984. He provided the spy organization with the basic information about the heads of some provinces and cities in China, and accepted and participated in the dispatching tasks and training. After Li returned to China in June, 5438+February of the same year, he repeatedly contacted foreign spy organizations by secret letter. According to the secret order of "reporting once a month", he reported the military information of our air force fighter model, a training place of the air force and so on to the spy organizations in that country directly or through a third country. In June165438+1October of the same year, according to the instructions of the country's spy organization, Li secretly reported the conversation between the leaders of China and a foreign parliamentary delegation twice.

The so-called "indicating the bombing target for the enemy" means indicating and displaying the position, characteristics, time and route of the enemy bombing our target. There are many ways to instruct bombing targets, such as making phone calls, sending faxes, igniting, and firing flares. No matter what means the perpetrator takes, whether the indicated target is wrong or not, whether he joins a spy organization or not, as long as he bombs the target for the enemy's index, the crime is established. The so-called "enemy" refers to countries, regions and organizations that are enemies of China, including hostile countries, regions, troops and organizations that fought side by side with China in wartime, and the above-mentioned countries, regions, troops or organizations that attacked our territory by bombing in non-war times.

According to the provisions of the criminal law, as long as the actor has carried out one of the three acts of participating in spy organizations, accepting the tasks of spy organizations and their agents, and instructing the enemy to bomb targets, it does not need to have all of them, which constitutes this crime. Even if all the above acts are carried out, it can only be regarded as one charge of this crime, and there are not many charges, let alone combined punishment for several crimes. [2]