20 18 answers to subjective questions of criminal law in French exam

Criminal law has always been the focus and difficulty of judicial examination. Many practical questions have many answers according to different theories. Moreover, in the examination, especially in the investigation of subjective questions, it focuses on a variety of processing angles, which also increases the difficulty of the law examination. Just like this 20 18 French exam, every teacher has a different understanding. Because I am in the learning stage, I should learn from all kinds of reference opinions to ensure that I can handle the next exam calmly. The most difficult part in the law exam is criminal law, but you can't give up because it is difficult. You still have to push yourself to keep trying.

The facts of a legal case

Wang organized underworld organizations, and Liu, Lin and Ding actively participated. One day, Wang He and Liu ate in a hotel and spent 3000 yuan. When Wang checked out, the cashier secretly adjusted the amount on the POS machine, and deliberately changed the meal fee from 3,000 yuan to 30,000 yuan and handed it over to Wang to check out. Wang did admit his mistake and paid 30,000 yuan.

When Wang found out, he overpaid. He and Liu Qu paid back the money, but refused to return it. Wang and Liu became angry from embarrassment and prepared to hijack and pay back the money. In the process of binding Wu Mou, Wu Mou was accidentally injured. He gave up the kidnapping and left the hotel for fear that other hotel staff would call the police.

When Wang and Liu walked out of the hotel, they were stopped by four security guards, including Wu. Wang asked Liu to call for help. Liu called Lin and Ding and privately asked them to bring the guns. Lin hid the gun in his clothes and escorted Wang into the private car.

When Wu and others saw it, they let four people leave. After Wang got on the bus, he was so angry that Liu "taught this security guard a good lesson" and then drove away. Liu immediately asked Lin and Ding to shoot. Lin and Ding shot Wu in the leg and in the abdomen. Only one bullet hit Wu's abdomen, causing his death. It is impossible to find out who hit him now.

question

1. What do you think of Wu Mou's behavior description? The reason must be explained.

2. What did Wang and Liu do? The reason must be explained.

3. What crimes did Wang, Liu, Lin and Ding commit against Wu Zhi's death? Among them, there are several ways to deal with Wang's behavior. The reason must be explained.

key word

(1) Necessary knowledge (property nature, quantity) of being cheated;

(two) illegal detention of debt, which aggravated the crime;

(3)*** with the crime, * * with the principal responsible for the results, there is a causal relationship;

(4) instigator;

(5) underworld organizations, the ringleaders of organized crime.

Reference answer

(1) There are three ways to deal with Wu Mou's behavior: theft, fraud and credit card fraud.

For the purpose of illegal possession, the amount of credit card was modified and Wang was defrauded. Whether it constitutes a crime of fraud involves the understanding of the necessary understanding of the consciousness of being cheated (whether it is necessary to know the amount of property).

Viewpoint 1: It constitutes theft.

The reason is that the sense of punishment of being cheated, as a constituent element of the crime of fraud, requires not only the nature of the property, but also the quantity of the property. So in this case, the deceived Wang didn't realize the overpayment and the fact that he transferred possession. The money (27,000 yuan) was transferred without the victim's knowledge. Wu Mou is a larceny, which constitutes larceny according to Article 264 of the Criminal Law.

Viewpoint 2: It constitutes a crime of fraud.

The reason is: if we think that the sense of being cheated as a constituent element of the crime of fraud, we only need to identify the nature of the transferred property, not the quantity of the property. Then Wang, who was cheated in this case, knew the fact that the money was transferred and occupied, and he had the behavior of disposing of property. Using fictitious figures to defraud Wang of disciplinary fines, the amount (27,000 yuan) has constituted the crime of fraud stipulated in Article 266 of the Criminal Law.

Another answer is the third point: credit card fraud.

The reason is: if Wang is tricked into swiping a credit card on the POS machine at the time of checkout, it can be considered as an indirect principal offender who uses the victim's mistake and belongs to an indirect principal offender who fraudulently uses someone else's credit card. According to the third item of Article 196 of the Criminal Law, it constitutes the crime of credit card fraud.

(2) Wang and Liu were guilty of illegal detention (causing serious injuries).

1, Wang and Liu objectively have legal claims for overpayment; Subjectively, there is no purpose of illegal possession. The act of hijacking and binding Wu Mou cannot constitute the crime of robbery or kidnapping.

2. Hijacking Wu Mou to return the money due, illegally depriving others of their freedom, and illegally detaining two people constitute the crime of illegal detention according to the third paragraph of Article 238 of the Criminal Law.

3. Whoever negligently causes serious injuries during detention shall be punished as the crime of negligent causing serious injuries. According to the second paragraph of Article 238, it is an aggravated crime and constitutes the crime of illegal detention (causing serious injuries).

(3) About Wang, Liu, Lin and Ding's characterization of Wu's death.

1, for the principal offender Lin, constitutes the crime of intentional injury (causing death). With Ding, it constitutes a * * * crime within the scope of intentional injury.

(1) One of Lin and Ding caused death by intentional injury, while the other caused death by intentional homicide. According to the same theory of * * * (or some crimes * * *), according to Article 25 1 of the Criminal Law, it belongs to the * * * accomplice within the scope of intentional injury.

(2) Although it is impossible to find out who caused the death, it was caused by the behavior of * * * accomplices, so both of them should bear criminal responsibility for the death result.

(3) Lin's attempt to shoot Wu's leg is intentional subjectively and subjective objectively. According to Article 234 of the Criminal Law, it constitutes the crime of intentional injury (causing death).

2. For the principal offender Ding, it constitutes the crime of intentional homicide (accomplished). It constitutes a crime within the scope of intentional injury with Lin.

(1) Ding Mou and Mou Lin are both * * * criminals, and objectively * * * is responsible for the death result, which is fatal.

(2) Subjectively wanting to shoot Wu in the abdomen, subjectively intentionally killing people, and the unity of objectivity and subjectivity constitutes the crime of intentional homicide according to Article 232 of the Criminal Law.

3. For the instigator Liu, it constitutes a crime of intentional injury (causing death) and is an instigator.

(1) Objectively, the principal offender Lin committed the crime of injury and Ding committed the crime of murder; It was caused by Liu's instigation, and it was instigated to be implemented.

(2) Subjectively, Liu instigated the two men to be intentional based on the "lesson", which is the instigation of intentional injury, and the objective and subjective are unified in the crime of intentional injury (causing death). According to Article 29 of the Criminal Law, it constitutes an instigator.

4. For Wang, it may be considered as intentional injury (causing death) or intentional homicide (accomplished), which involves the scope of responsibility of the ringleaders of group crime.

Viewpoint 1: It constitutes the crime of intentional injury (causing death) and is an instigator. The reason is the same as what Liu said above. If we only consider the specific behavior of this case, we think that Ding's intentional homicide is a personal behavior outside the underworld organization. According to Article 29 of the Criminal Law, it constitutes an instigator of the crime of intentional injury (causing death) because it instigates others based on the "lesson" intention.

Viewpoint 2: It constitutes the crime of intentional homicide (accomplished). Because Wang is the leader of the underworld organization and belongs to the ringleader of organized crime. If we think that Ding's intentional homicide is a crime within the scope of underworld organizations. According to the third paragraph of Article 26 of the Criminal Law, all crimes committed by this specific criminal group should be punished according to the underworld nature. Therefore, Ding should be responsible for the crime of intentional homicide (accomplished).

(4) In addition, Wang organized underworld organizations, and Liu, Lin and Ding actively participated. According to Article 294 1 of the Criminal Law, Wang constitutes the crime of organizing an underworld organization, while Liu, Lin and Ding constitute the crime of participating in an underworld organization. Should be punished for several crimes.

Reference answer 2

Note: Yang Yanxia replied (Associate Professor of China University of Political Science and Law, famous teacher of law examination).

Answer 1. There are two ways to deal with Wu Mou's behavior characterization.

In the absence of a clear sense of punishment, there are different views on whether voluntary transfer of property can constitute fraud.

(1) In terms of punishment, Wu Mou's behavior constitutes a crime of fraud. In this case, when Wang paid for the meal, he did not realize that he actually paid 30,000 yuan instead of 3,000 yuan, but he did pay voluntarily. Wu Mou's behavior constitutes a crime of fraud if he thinks that he only needs to transfer the property voluntarily and does not need a clear expression of intention to dispose of the property.

(2) According to the necessity of punishment consciousness, Wu Mou's behavior constitutes theft. When Wang paid for the meal, he didn't realize that he was paying 30,000 yuan, and he didn't realize that he had to pay 30,000 yuan to the hotel, so he was robbed of 270,000 yuan without his knowledge. Therefore, Wu Mou's behavior constitutes theft.

Explain that 1 can also be answered from the point that the establishment of fraud requires a sense of punishment, but whether the sense of punishment is a sense of punishment for specific amounts and goods (strict punishment) or a sense of punishment for money and goods of the same nature (moderate punishment). If we think that the crime of fraud should be established, the victim must have a full understanding of the property he disposes of. In this case, he must realize that he has paid 30,000 yuan. In this case, Wang has no sense of punishment, which constitutes theft. On the other hand, if you think that the victim only needs to realize that he is disposing of property, but not what and how much he has disposed of, then Wang is aware of punishment in this case, and his behavior constitutes fraud.

2. What did Wang and Liu do? The reason must be explained.

(1) Wang and Liu were guilty of illegal detention. The purpose of Wang and Liu's hijacking is to get back the money that Wang inadvertently paid, and it does not have the purpose of illegal possession. Therefore, their behavior does not constitute robbery. According to the criminal law, illegally detaining others for the purpose of demanding debts constitutes the crime of illegal detention. Therefore. Their behavior constitutes the crime of illegal detention.

When they bound Wu Mou, they accidentally beat Wu Mou seriously. According to the criminal law, this is a case of "illegal detention causing serious injuries", and the result of the crime of illegal detention is aggravated.

3. What crimes did Wang, Liu, Lin and Ding commit against Wu Zhi's death? Among them, there are several ways to deal with Wang's behavior. The reason must be explained.

(1) Lin is guilty of intentional injury and Ding is guilty of intentional homicide. Both of them were found guilty of intentional injury, and both of them were responsible for the death result. The reason for this is the following：

1) Liu ordered them to "shoot", but it was not clear whether to kill Wu or hurt Wu, so it was difficult to conclude that Lin and Ding had the same intentional homicide. Lin shot Wu Mou in the leg, indicating that he only had a criminal intention to hurt Wu Mou, while Ding shot Wu Mou in the abdomen, indicating that he had a criminal intention to kill Wu Mou. According to the principle of consistency between subject and object, Lin constitutes the crime of intentional injury and Ding constitutes the crime of intentional homicide.

2) Because the two men shot at Wu Mou at the same time after receiving Liu's instructions, they had the same intention to hurt Wu Mou, so they constituted the same crime within the scope of intentional injury.

3) Although it is impossible to find out who shot Wu in the abdomen, both of them are responsible for each other's injury behavior because they constitute the same crime within the scope of intentional injury, and Ding's murder behavior can also be evaluated as injury behavior. Therefore, no matter who hits Wu in the abdomen, both of them are responsible for the death result.

(2) Liu was guilty of intentional injury (causing death) to Wu. Its isomorphism with Lin and Ding is a cost crime. The reason for this is the following：

Liu instructed the two men to shoot Wu Mou, and his behavior was an instigator of intentional injury. According to the principle of accessory nature of * * *, the instigator needs to be responsible for the behavior of the instigated person, so Liu Ye constitutes the crime of intentional injury and he needs to be responsible for Wu Mou's death.

(3) There are two different views on the constitutive elements of Wang's behavior.

1) Wang's behavior constitutes the crime of intentional injury (causing death). Wang instructed Liu to "teach this security guard a good lesson". Lin and Ding also carried guns privately, and Wang didn't know. Therefore, subjectively, he only has the criminal intention of intentionally hurting Wu, and Ding's murder behavior exceeds his criminal intention and he is not responsible.

2) Wang's behavior constitutes the crime of intentional homicide. Wang is the ringleader of this underworld organization. According to the criminal law, the ringleader of a criminal group should be responsible for all the crimes committed by the group. Ding's murder was carried out at Liu's instigation, and it was a crime to complete the task of a criminal group. Therefore, Wang should be responsible for Ding's murder.

Explanation 2: Some teachers believe that this question also needs to answer the crimes of Wang, Liu, Lin and Ding forming an organization, leading and participating in an underworld organization, and be punished together with the following crimes. I don't think so. Because this question is a specific question, you just need to answer it according to the specific question.

Explain that three teachers think that Liu, Lin and Ding constitute the crime of intentional homicide. This view has some truth. Because shooting is an act with high risk of death. Liu ordered "shooting", which can at least be considered as an indirect intention to kill Wu.

However, judging from the topic of "shooting", instead of "shooting and killing him", with special emphasis on Lin shooting at Wu's leg, I think it may be more in line with the principle of modesty of criminal law to interpret Liu's "shooting" as intentional injury.

It should be said that "shooting" refers to injury or killing, which is not very clear in this issue, and it is a controversial expression (the proponent may feel that there is no dispute).

Judging from the marking, whether it is to answer that three people are guilty of intentional homicide or intentional injury, as long as all three people are responsible for the death result, this question can get basic points. The official answer may also be (1) an accomplice of intentional homicide or (2) an accomplice of intentional injury.