Circular on Printing and Distributing the 52nd Batch of Guiding Cases of the Supreme People's Procuratorate
The People's Procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, the PLA Military Procuratorate, and the Xinjiang Production and Construction Corps People's Procuratorate:
On January 26, 2024, at the 23rd meeting of the 14th Procuratorial Committee of the Supreme People's Procuratorate, it was decided that four cases (JJ No. 209-212), including Zhu's case of reconsideration and review of non arrest and non prosecution for theft, were published as the 52nd batch of guiding cases (the subject of review of non arrest and non prosecution and criminal prosecution standards) for reference and application.
Supreme People's Procuratorate
April 23, 2024
Zhu is suspected of theft and does not approve arrest
(Exam No. 209)
Keywords
Repeated theft of larceny with obvious minor circumstances, no arrest, reconsideration and review
[Main point]
Although the perpetrator has "repeatedly stolen", according to the comprehensive consideration of the objective harm of the behavior, the circumstances and the subjective malignancy of the perpetrator, if the perpetrator does not have serious social harm and should not be punished by criminal punishment, the circumstances are obviously minor, the harm is not serious, and it is not considered a crime. The People's Procuratorate should make a decision not to approve arrest according to law. The People's Procuratorate shall carry out substantive examination of the reconsideration and review cases, and shall also appoint another procurator to handle the reconsideration cases.
Basic Case
The suspect Zhu, female, was born in March 1968, unemployed.
From July 4 to 6, 2021, when Zhu was walking near a unit in Wuhua District, Kunming City, Yunnan Province, he took home 16 pots of succulent plants planted by Xie at the door of the unit three times. At about 14:00 on July 7, Xie found that the succulent plants he planted had been stolen and called the police. At about 19:40 on the same day, when Zhu went to the crime scene for a walk to steal succulent plants again, the security guard found him and asked him to register his identity information. He left the scene after providing false information. On July 15, the police locked Mr. Zhu through video surveillance and went to find him near his residence. After the neighbors informed Mr. Zhu of the situation, Mr. Zhu went downstairs to the police and truthfully explained the fact that he had stolen succulent plants, and returned the stolen items to Mr. Xie. After identification, Zhu stole a total of 98 yuan worth of succulent plants.
[Performance process of procuratorial organs]
（1） Review arrest
On July 15, 2021, Wuhua Branch of Kunming Public Security Bureau put Zhu on file for investigation on suspicion of theft, and detained him the next day. On July 26, Wuhua Branch submitted to the People's Procuratorate of Wuhua District, Kunming for approval of arrest on the suspicion of theft of Zhu.
After examination, the People's Procuratorate of Wuhua District, Kunming City believed that Zhu's three thefts in different periods of time should be identified as multiple thefts. However, the value of the object of theft is small, only 98 yuan. After the crime, the victim voluntarily returned the stolen property to recover the economic losses of the victim, which belongs to the situation that the circumstances are obviously minor and the harm is not great. According to the provisions of Article 13 of the Criminal Law, it is not considered a crime. On August 2, 2021, the People's Procuratorate of Wuhua District made a decision not to approve arrest, and delivered a statement of reasons for not approving arrest to the public security organ, which should explain the reasons and basis to the public security organ.
（2） No arrest approval, reconsideration and review
On August 5, 2021, Wuhua Branch of Kunming Public Security Bureau believed that Zhu had repeatedly stolen, which was in line with the provisions of the Criminal Law on theft. It made a wrong decision not to approve the arrest based on the obvious circumstances and minor harm, and it was easy to blur the boundaries between illegal and criminal activities, which made it difficult to implement in practice, so it proposed to the procuratorial organ for reconsideration.
The People's Procuratorate of Wuhua District of Kunming City shall appoint procurators to handle the case separately. The prosecutor reviewed the case file, interrogated Zhu, and comprehensively reviewed the case facts, evidence, reasons for not approving arrest and reasons for reconsideration. After examination, it is believed that Zhu has committed three thefts, which is consistent with the multiple thefts specified in the specific provisions of the Criminal Law. However, the general provisions of the Criminal Law require that when judging whether a crime or not is a crime, it should be followed whether it has serious social harm and should be punished. After comprehensive consideration of Zhu's objective behavior, subjective purpose, property value, and recovery of stolen goods and damages, the circumstances are obviously minor and the harm is not serious, so it is not considered a crime.
On August 10, 2021, the People's Procuratorate of Wuhua District, Kunming City, after study by the procuratorial committee, upheld the original decision not to approve arrest, and explained to the public security organ the reasons and basis for the procuratorial organ's reconsideration decision.
（3） Review and review without arrest approval
On August 11, 2021, Wuhua Branch of Kunming Public Security Bureau submitted to Kunming People's Procuratorate for review. The public security organ believes that if the judicial interpretation clearly stipulates that "theft occurs more than three times within two years", it should be identified as "multiple theft". Zhu's repeated petty theft can be evaluated as minor, but it does not belong to "significant minor harm". The criminal act of "multiple theft" is reduced to an administrative illegal act, which breaks the boundary between criminal law and administrative law, and will make it difficult for public security organs to accurately define administrative illegal acts and criminal acts when handling multiple theft cases.
In the review stage, the prosecutor of Kunming People's Procuratorate comprehensively reviewed the papers, verified the evidence, and listened to the opinions of the public security organ, the lower level People's Procuratorate and Zhu. After examination, it is believed that the criminal law stipulates that "repeated theft" is intended to punish habitual criminals. Zhu's behavior is occasionally greedy for small profits. The value of the stolen succulent plants is only 98 yuan, and Zhu took the initiative to return the stolen succulent plants after the crime, without causing economic losses to the victim. Zhu's behavior is obviously minor and does not cause much harm. It is not considered a crime, and his behavior can be punished for public security.
The Kunming People's Procuratorate decided to uphold the reconsideration decision not to approve arrest, and delivered a document to the public security organ on August 25, 2021, explaining the law and reasoning in person.
（4） Processing results
On September 6, 2021, Wuhua Branch of Kunming Public Security Bureau revoked the criminal case and imposed a penalty of 15 days of administrative detention on Mr. Zhu. Since Mr. Zhu had been in criminal detention before, the date of criminal detention will be converted into the date of administrative detention.
【 Guiding significance 】
（1） The examination and determination of a crime should accurately grasp whether it has the essential characteristics of serious social harm according to law. To accurately distinguish the boundaries between crime and non crime, and between illegality and crime, we should be good at accurately grasping the substantive legal relationship from the complicated legal facts, be good at deeply understanding the spirit of the rule of law from the specific legal provisions, and be good at achieving fairness and justice in the organic unity of legal principles and feelings. To understand and grasp the provisions of "multiple theft", we should adhere to the substantive interpretation, and can not simply think that as long as "multiple theft" will be treated as criminal punishment. On the one hand, we should observe that "multiple theft" and "large amount, burglary, theft with lethal weapons, pickpocketing" are quite harmful; On the other hand, we should combine the specific provisions with the general provisions, and further review the degree of social harmfulness of their acts and whether they should be punished according to the provisions of Article 13 of the Criminal Law. For "multiple theft", it can be comprehensively judged whether it is identified as theft by combining the motives, purposes, time, place, means, objects, amount and other circumstances of the perpetrator's theft. In case of repeated theft by destructive means, taking theft as a profession, having received criminal punishment or administrative punishment for theft and repeated theft, and stealing the property of the disabled and the elderly alone and widowed for many times, the case shall be prosecuted according to law as theft. If the perpetrator steals a small amount of property and has a small value despite repeated theft, it shall be deemed that the circumstances are significant, the damage is minor, and it is not considered a crime.
（2） When handling reconsideration and review cases, substantive examination shall be carried out. With regard to reconsideration cases, the People's Procuratorate shall appoint another procurator to handle them. It shall pay attention to listening to the opinions of the public security organs, examining and reviewing evidence, strengthening communication and reasoning, and organizing hearings when necessary. If the original decision not to approve arrest is upheld after reconsideration, the People's Procuratorate shall explain the reasons when serving the reconsideration review decision on the public security organ.
[Relevant regulations]
Articles 13 and 264 of the Criminal Law of the People's Republic of China
Articles 90 and 92 of the Criminal Procedure Law of the People's Republic of China (revised in 2018)
Articles 290 and 291 of the Rules of Criminal Procedure of the People's Procuratorate (revised in 2019)
Paragraph 1 of Article 3 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft (FSH [2013] No. 8, implemented on April 4, 2013)
Procuratorate handling cases: Kunming People's Procuratorate, Yunnan Province Wuhua District People's Procuratorate, Kunming City, Yunnan Province
Procurator in charge: Wu Yunfeng, Duan Jinyan, Ren Junping
Case writer: Na Wenting, Yin Luyang, Wu Yunfeng, Duan Jinyan
Yang is suspected of false litigation and does not approve arrest for reconsideration
(Examination case No. 210)
Keywords
False litigation, tampering with evidence, comprehensive performance of duties, no approval of arrest, reconsideration
[Main point]
To determine the crime of false litigation, we should know whether the actor has fabricated civil legal relations and civil disputes. If the actor tampers with part of the evidence, but there are real civil legal relations and civil disputes between the parties, it is not considered a crime. The People's Procuratorate shall strengthen communication with the public security organ to promote the understanding and recognition of the reconsideration decision when handling the reconsideration case of disapproval of arrest. If the act of the perpetrator does not constitute a crime, but impairs the judicial order or infringes on the legitimate rights and interests of others, the People's Procuratorate shall make procuratorial suggestions to make the perpetrator bear corresponding legal responsibility.
Basic Case
The criminal suspect Yang, male, born in April 1966, is the legal representative and chairman of the board of directors of an eco-tourism development company in Ziyang, Sichuan.
On March 8, 2018, in order to expand the company's business project, Mr. Yang introduced citrus trees. After being introduced by an intermediary, he and four other farmers reached an agreement on purchasing 63000 citrus seedlings. Later, Zhong, an employee of the company, signed agreements with the above farmers in his own name. The agreement stipulates the order quantity, price, quality, delivery time, method and liability for breach of contract of citrus seedlings, but does not stipulate the delivery standard, conditions and consequences of termination of the agreement. Among them, the liability for breach of contract stipulates that "in case of breach of contract, the breaching party shall pay the non breaching party liquidated damages (calculated according to the standard of 5 yuan per citrus plant)". On March 9, Yang arranged Zhong to use the company's funds through the company's account and pay 63000 yuan in advance to the above farmers according to the standard of 1 yuan per plant. Later, due to the death of the intermediary, the original commitment that the farmers should be responsible for the inspection and quarantine procedures was delayed and failed. Until the expiration of the performance period on June 30, 2018, the agreement has not been actually implemented, and the citrus seedlings have not been moved.
As the market price of citrus seedlings continues to decline and the company is short of funds, at the beginning of 2020, Yang proposed to refund 63000 yuan of advance payment to He and others. After many unsuccessful negotiations, Yang changed the original agreement from "Zhong" to "Sichuan Ziyang Ecological Tourism Development Co., Ltd.", added "Plant Quarantine Certificate" as the delivery standard, forged the contents of "If the plant quarantine certificate cannot be issued, you have the right to terminate the agreement" and "the deposit, citrus seedlings, and any other funds received shall be returned in full", On September 23, 2020, he filed a lawsuit with the People's Court of Jianyang City, Sichuan Province, asking for a decree of "rescission of the original agreement", "return of 63000 yuan of seedling purchase money and interest on fund possession", "payment of 25200 yuan of liquidated damages". The court organized two hearings. In the trial, Yang did not actually claim the issue of liquidated damages. Later, Yang was found to have tampered with the agreement because He and other farmers submitted the original agreement to the court. The court held that the agreement provided by Yang was different from the original agreement in terms of contract subject and contract content, which may be suspected of false litigation crime. On November 8, 2020, the clue was transferred to Jianyang Public Security Bureau.
[Performance process of procuratorial organs]
（1） Review arrest
Jianyang Public Security Bureau filed a case for investigation on November 11, 2020, detained Yang on March 22, 2021, and submitted to Jianyang People's Procuratorate for approval of arrest on April 2 on suspicion of false litigation.
The People's Procuratorate of Jianyang City reviewed and found that Mr. Yang, as the legal representative of the company, negotiated with farmers and paid the advance payment on behalf of the company. The buyer of citrus seedlings, Mr. Zhong, was actually the company, which was well known and recognized by farmers such as Mr. He. Therefore, there is a real civil legal relationship between the company and farmers; The failure of Mr. Yang to negotiate with the farmer to return the advance payment is a civil dispute between the company and the farmer, which the farmer also knows and recognizes; Although Yang has objectively committed acts such as forging the executor of the agreement, it is subjectively to be able to sue, not to fabricate false lawsuits out of thin air to infringe upon the legitimate rights and interests of others. Therefore, Yang's behavior does not comply with the provision of Article 307-1 of the Criminal Law that "civil proceedings are initiated with fabricated facts", and does not constitute a crime of false litigation.
On April 9, 2021, the Jianyang People's Procuratorate made a decision not to approve the arrest of Mr. Yang according to law, and sent a statement of reasons for not approving the arrest to the public security organ, explaining the reasons for not approving the arrest. On the same day, Yang was released.
（2） No arrest approval, reconsideration and review
On April 14, 2021, Jianyang Public Security Bureau believed that Mr. Yang had tampered with the subject of the civil contract, which led to the change of the subject of the civil legal relationship, and caused the court to hold two court sessions, jeopardizing the normal judicial order, which was suspected of constituting a false lawsuit crime. The procuratorial organ made a mistake in making the decision not to approve arrest, and proposed reconsideration to Jianyang People's Procuratorate.
Jianyang Municipal People's Procuratorate shall appoint procurators to handle the case separately. The prosecutor reviewed the original case file, interrogated the criminal suspect and key witnesses, and comprehensively examined and verified the evidence. According to the review, according to Article 307-1 of the Criminal Law and the provisions of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation, the objective manifestation of the crime of false litigation is the act of fabricating civil legal relations, fabricating civil disputes and bringing a lawsuit to the people's court by means of falsifying evidence, false statements, etc. According to the facts about the ownership of rights and obligations and the subject of fund payment, it can be concluded that Party A (namely, Mr. Zhong) in the original agreement is not actually the subject of civil legal relationship. Mr. Yang's tampering with the executor only changed the form of the original agreement, but did not lead to the change of the subject of actual civil legal relationship. The fact that the two parties to the agreement failed to actually perform the contract and failed to return the advance payment through negotiation nearly two years after the expiration of the contract can be recognized as the true occurrence of the civil dispute, not a fiction. Yang tampered with the agreement in order to resolve the dispute by filing a lawsuit. His claim of "returning 63000 yuan of the purchase price of seedlings" is actually the content of the dispute. Therefore, Yang's behavior does not conform to the provisions of the crime of false litigation.
On April 21, 2021, Jianyang Municipal People's Procuratorate, after discussion by the procuratorial committee, upheld the original decision not to approve arrest. In the process of handling reconsideration cases, the Jianyang People's Procuratorate held discussions with the public security organs and actively strengthened communication. The public security organ recognized the reconsideration decision and did not submit it for review. On May 11, the public security organ revoked Yang's suspected false lawsuit according to law.
（3） Comprehensive performance of duties
Jianyang People's Procuratorate followed up and supervised the illegal act of Yang who deliberately tampered with the evidence found in the handling of the case, and proposed to Jianyang People's Court a procuratorial proposal to give Yang judicial punishment according to law. On May 25, 2021, the court decided to impose a fine of 20000 yuan on Mr. Yang. Yang accepted the punishment and paid the fine on schedule.
【 Guiding significance 】
（1） When handling a criminal case of false litigation, it shall be examined whether the actor is "bringing a civil action with fabricated facts". The essential feature of the crime of false litigation is that there is no civil legal relationship and civil dispute between the actor and others, and there is nothing to fabricate civil legal relationship and civil dispute and initiate civil litigation. To judge whether it is a fabrication of civil legal relations and civil disputes, we should adhere to the substantive judgment. If there is actually a civil legal relationship and civil dispute between the actor and others, and in order to win the lawsuit, the actor tampers with part of the evidence without substantially changing the original civil legal relationship and civil dispute, it shall not be deemed as a false lawsuit crime. If it constitutes other crimes, it shall be investigated for legal responsibility in accordance with the relevant provisions.
（2） In handling reconsideration cases, attention should be paid to communication to promote the public security organs' understanding of the reconsideration decision. If the People's Procuratorate, after examining a case of arrest, considers that it does not constitute a crime, it shall, in accordance with law, make a decision not to approve arrest if it does not constitute a crime. When handling a case requiring reconsideration by the public security organ, attention should be paid to listening to the opinions of the public security organ, fully clarifying the facts of the case, the reasons for not approving arrest and the legal basis for the reconsideration decision, and promoting consensus.
（3） We should strengthen comprehensive performance of duties and improve the quality and efficiency of procuratorial supervision. False litigation infringes upon the legitimate rights and interests of other civil subjects, and impairs judicial credibility and judicial order. The People's Procuratorate should strengthen the comprehensive performance of duties in handling cases. If it is necessary to impose judicial punishment on those who do not constitute a crime but disrupt the normal order of civil proceedings, they should timely transfer the clues to the People's Court according to law and put forward procuratorial suggestions.
[Relevant regulations]
Paragraph 1 of Article 307-1 of the Criminal Law of the People's Republic of China
Article 92 of the Criminal Procedure Law of the People's Republic of China (revised in 2018)
Article 290 of the Rules of Criminal Procedure of the People's Procuratorate (revised in 2019)
Article 1 and Article 2 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of False Litigation (FSH [2018] No. 17, coming into force on October 1, 2018)
Articles 2, 3, 4 and 23 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Further Strengthening the Punishment of False Litigation Crimes (Fa Fa [2021] No. 10, coming into force on March 10, 2021)
Procuratorate handling cases: Jianyang People's Procuratorate of Sichuan Province
Undertaken by: Qin Minquan Qingfei
Case writer: Qian Xiaojun, Luo Na, Zhou Mingwei, Jiang Qinqin
Wang Mou's Case of Refusing to Approve the Arrest for Reconsideration by Covering up or Concealing the Proceeds of Crime
(Exam No. 211)
Keywords
Concealing or concealing criminal gains, knowing that the standard of prosecution is serious, does not approve arrest, review and review
[Main point]
The determination of the crime of concealing or concealing the proceeds of crime and the proceeds of crime "knowingly" should be based on the comprehensive judgment of the actor's professional nature, cognitive ability, stolen goods form, purchase price, and the proceeds obtained. When handling a case of concealing or concealing the proceeds of crime, the People's Procuratorate shall, according to the specific facts, circumstances, consequences and degree of social harm of the case, and in combination with the nature of the upstream crime, the balance between the sentencing of the upstream and downstream crimes, make a comprehensive judgment to decide whether to prosecute and whether to recognize it as "serious". If the people's procuratorate at a higher level discovers that there is an error in the reconsideration decision of the people's procuratorate at a lower level when handling a case of non approval of arrest review, it shall correct it according to law.
Basic Case
The defendant Xu, male, born in January 1989, is a water electrician at a construction site.
The defendant Wang, male, born in September 1988, is a self-employed operator of the waste purchase station.
From April to May 2021, Xu, who is engaged in water and electricity work at an industrial park site in Mingguang City, Anhui Province, has stolen scaffold fasteners on the site 24 times, and sold them to Wang, who runs a waste purchase station 29 times. Wang, knowing that the origin of scaffold fasteners was unknown, still purchased at a low price and paid Xu more than 19700 yuan. The victim reported to the police when he found that the fasteners on the construction site were lost.
On May 15, 2021, Mr. Wang was captured, and Mr. Xu received a call from the police to inform him of his presence. The public security organ seized 1201 fasteners of the stolen scaffold and returned them to the victims. According to the price determination, the total value of the stolen scaffold fasteners is 32400 yuan. Later, Xu returned the stolen money.
[Performance process of procuratorial organs]
（1） Review arrest
On May 15, 2021, the Mingguang Public Security Bureau of Anhui Province filed a case for investigation of Xu's suspected theft, and the next day, filed a case for investigation of Wang's suspected crime of concealing and covering up the crime, and detained them for criminal purposes. On May 21, Xu was suspected of theft and Wang was suspected of covering up and concealing the crime place and submitted to Mingguang People's Procuratorate for approval of arrest.
After examination, Mingguang People's Procuratorate believed that Xu had committed a relatively large amount of theft, and could be sentenced to more than imprisonment according to law. If he did not arrest, he could commit a new crime, which was socially dangerous; Wang's behavior does not conform to the four situations specified in Paragraph 1 of Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering up and Concealing Criminal Proceeds and Proceeds from Crime (hereinafter referred to as the Interpretation), In the absence of a clear and specific standard in the provision of the second paragraph, "The people's court shall consider the nature of the upstream crime, the circumstances, consequences, and social harm of concealing and concealing the proceeds of crime and the proceeds of crime, and shall be convicted and punished according to law." Conceal the crime. Mingguang People's Procuratorate decided to approve the arrest of Mr. Xu on May 28, 2021, made a decision not to approve the arrest on the basis that Mr. Wang did not constitute a crime, and delivered a statement of reasons for not approving the arrest to the public security organ. Wang was released that day.
（2） No arrest approval, reconsideration and review
On May 31, 2021, Mingguang Municipal Public Security Bureau filed for reconsideration, believing that Wang, knowing that the origin of the scaffold fasteners sold to him by Xu was unknown, had still purchased them 29 times, which was in line with the provision of Item (2) of Paragraph 1 of Article 3 of the Interpretation that "concealing and concealing the proceeds of crime and the proceeds generated for more than 10 times, which was serious". According to the provisions of Article 312 of the Criminal Law, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. The procuratorial organ shall approve the arrest if it is improper not to approve the arrest if it does not meet the criteria for criminalization. Mingguang Municipal People's Procuratorate shall appoint another procurator for examination. After examination and with the approval of the Procurator General, the Prosecutor decided on June 7 to uphold the original decision against arrest on the same grounds.
（3） Review and review without arrest approval
On June 8, 2021, Mingguang Public Security Bureau submitted to Chuzhou People's Procuratorate for review. The Chuzhou People's Procuratorate shall appoint the department head to review. The procurators read the case files and listened to the opinions of the public security organs and Mingguang People's Procuratorate. After examination, it is believed that although Wang's behavior does not conform to the four situations specified in the first paragraph of Article 1 of the Interpretation, it should be comprehensively considered whether it constitutes a crime according to the provisions of the second paragraph. As an upstream theft crime, Xu stole 32400 yuan worth of property. The criminal facts have been identified and approved for arrest. Wang, a downstream person, has long been engaged in the purchase of waste products at a low price, and many fasteners are packaged in whole. It can be determined that he knows it is criminal income, and has made several consecutive low price purchases to obtain illegal interests, the amount of which is far more than the amount of the original Interpretation The stipulated amount standard of 3000 yuan to 10000 yuan or more has been suspected of constituting the crime of concealing or concealing the crime. In consideration of Wang's truthful confession of criminal facts, voluntary confession of guilt and punishment, and willingness to return the stolen goods after his arrest, after a comprehensive evaluation of his social danger, and with the approval of the Procurator General, he made a review decision on June 18 that he would not be arrested without social danger, and explained the reasons to the public security organ.
（4） Processing results
On June 24, 2021, Mingguang Municipal Public Security Bureau transferred Xu to Mingguang Municipal People's Procuratorate for investigation and prosecution as he was suspected of theft and Wang was suspected of concealing the crime.
After examination, Mingguang People's Procuratorate believed that Wang had been suspected of covering up and concealing the crime, but it was not a "serious case". The identification of "serious circumstances" cannot be judged simply from the form. Wang, based on the general intention of concealing and covering up, purchased the same kind of stolen goods of the same unit in a relatively short time, and should not be mechanically identified as "serious circumstances". On July 23, Mingguang People's Procuratorate indicted Xu on suspicion of theft and Wang on suspicion of concealing the crime.
On August 19, 2021, Mingguang People's Court sentenced Xu to one year and six months in prison for theft, and fined him 18000 yuan; Wang was sentenced to seven months' imprisonment and a fine of 8000 yuan for covering up and concealing the crime. After the judgment was pronounced, neither of the two defendants filed an appeal, and the judgment became effective.
【 Guiding significance 】
（1） When handling a case of concealing or concealing the proceeds of crime, a comprehensive review shall be conducted according to the specific circumstances, consequences, degree of social harm, as well as the nature and harmful consequences of the upstream crime, to decide whether to prosecute or not. When determining "knowingly", it should be judged comprehensively in combination with the actor's professional nature, cognitive ability, stolen goods form, purchase price, income, etc. When identifying the "serious circumstances", we should not simply take the number of stolen goods as the judgment standard, but should make a comprehensive judgment based on the actor's intentional content, the number of stolen goods, the value of stolen goods, the duration, the target of the crime, the harmful consequences, and the sentencing balance of upstream and downstream crimes.
（2） If the people's procuratorate at a higher level makes mistakes in the decision not to approve arrest and in the reconsideration of a case after review, it shall correct them according to law. With regard to the case submitted by the public security organ for review, the People's Procuratorate shall comprehensively review whether the decision not to approve arrest is correct in determining the facts and applying the law, whether it is properly handled, whether it violates the legal procedures, whether the use of documents is accurate, whether there are errors and omissions in the citation of laws and regulations, whether the interpretation and reasoning are sufficient, and whether new facts and evidence are presented after reconsideration. If the reason for the public security organ's request for review is correct, it shall be adopted in accordance with the law and the improper decision of the lower court shall be corrected.
[Relevant regulations]
Paragraph 1 of Article 312 of the Criminal Law of the People's Republic of China
Article 67, Paragraph 1, Article 81, Paragraphs 1 and 2, and Article 92 of the Criminal Procedure Law of the People's Republic of China (revised in 2018)
Article 86, the first paragraph of Article 128, Article 134, Article 290, and Article 291 of the Rules of Criminal Procedure of the People's Procuratorate (revised in 2019)
Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering up and Concealing the Proceeds of Crime and the Proceeds of Crime (Fa Shi [2015] No. 11, revised on April 7, 2021, and implemented on April 15, 2021) Paragraph 2 of Article 1, Paragraph 2 of Article 3
Procuratorate handling cases: People's Procuratorate of Chuzhou City, Anhui Province People's Procuratorate of Mingguang City, Anhui Province
Undertaken by: Yang Song
Case writer: Du Wei, Liu Bin, Wang Pingwei, Yang Song
A case of review of Mao's organization of prostitution without prosecution
(Exam No. 212)
Keywords
Organizing Prostitution to Stay Prostitution Substantive Review Higher level Review Correction No Prosecution Review Review
[Main point]
When there are both formal consumption items and prostitution activities in the place involved, the place operator argues that he/she does not know that there are prostitution activities in the place, he/she should comprehensively review the evidence on record, and use logical rules and rules of experience to analyze and judge whether he/she has subjective knowledge. A place operator who knowingly manages or controls the prostitution of others by means of recruitment, employment or other means after others lease their places, but still provides places for them, manages and agrees on the distribution ratio of prostitution funds, and manages prostitution places and personnel shall be deemed as the crime of organizing prostitution. If the People's Procuratorate, when handling a case of non prosecution review, considers after examination that the decision of non prosecution made by the People's Procuratorate at a lower level is truly wrong, it shall, in accordance with law, instruct the People's Procuratorate at a lower level to correct it, or revoke or change the decision of non prosecution made by the People's Procuratorate at a lower level.
Basic Case
Defendant Mao, male, born in May 1967, is a shareholder and actual operator of a bathing place.
Mao invested in the operation of a bathing place and was responsible for the actual operation and management. Since December 2012, knowing that Wang (sentenced for organizing prostitution) and others were recruiting and hiring prostitutes for prostitution, Mao still leased the box area on the first floor of the bathing place to Wang and others, agreed with Wang and others on the distribution ratio of prostitution funds, and managed the prostitution place. In the meantime, Mr. Wang and others were responsible for the management of prostitutes, and the bathing place was responsible for collecting the whoring funds in a unified way, and drawing profits from the bathing place according to the agreed proportion, and then transferring the remaining whoring funds to Mr. Wang and others. During the operation period, the bathhouse was fined twice by the public security organ for prostitution. On May 30, 2013, the Public Security Bureau of Tiantai County, Zhejiang Province seized 6 prostitutes from the bathhouse on the spot. After investigation, 992 prostitution records were recorded in this prostitution place, with a total illegal profit of more than 300000 yuan, of which Mao earned about 100000 yuan.
[Performance process of procuratorial organs]
（1） Review arrest
In May 2013, the Tiantai County Public Security Bureau of Zhejiang Province put Wang and others on file for investigation on the crime of organizing prostitution. In the meantime, Mao was summoned many times. Mao argued that the bathing place operated a formal project, and the manager and cashier were responsible for the daily management and external leasing of the box area. He did not know about the prostitution activities organized by Wang and others. The Tiantai County Public Security Bureau considered that the evidence proving Mao's crime was insufficient and did not file a case for investigation. In 2018, Taizhou Public Security Bureau believed in the special evaluation that Mao was responsible for the lease and management of the bathing place and was seriously suspected of committing a crime, so it asked Tiantai Public Security Bureau to continue the investigation.
On January 22, 2019, the Public Security Bureau of Tiantai County made a criminal detention decision on Mao and pursued him online. On August 26, Mao surrendered, but still said he was unaware of prostitution in the bathhouse. The Public Security Bureau of Tiantai County believed that the staff of the bathing place proved that the lease of the box area must be approved by Mr. Mao, and the manager of the bathing place proved that he had been instructed by Mr. Mao to avoid the yellow check. It can be concluded that Mr. Mao, knowing that Mr. Wang and others were engaged in prostitution, still provided a place for them, and was suspected of harbouring prostitution. On September 17, he submitted to the People's Procuratorate of Tiantai County for approval of arrest.
The People's Procuratorate of Tiantai County reviewed and found that in the case of Wang organizing prostitution, the manager of the bathing place (sentenced for assisting in organizing prostitution) and Mao shifted the blame between each other, saying that the bathing place was managed by the other party and that both parties had interests, so the testimony of the manager of the bathing place was weak, and there was no objective evidence, which proved that the evidence of Mao's subjective knowledge was insufficient. On September 20, 2019, Mao made a decision not to arrest, And put forward supplementary investigation opinions, requiring the public security organs to obtain objective evidence such as contracts to further investigate the negotiation process of prostitution. The Public Security Bureau of Tiantai County supplemented the testimony of the cashier to prove that Mao was responsible for the management of the bathhouse and the settlement of funds.
（2） Review and prosecution
On January 2, 2020, the Public Security Bureau of Tiantai County transferred Mao to be investigated and prosecuted for the crime of harbouring prostitution. After the Tiantai County People's Procuratorate returned for supplementary investigation twice, the procuratorial committee considered that the evidence proving that Mao knew that Wang and others were engaged in prostitution in the bathhouse was still insufficient, and made a decision not to prosecute on April 27.
（3） Non prosecution review
The Public Security Bureau of Tiantai County believes that there is evidence to prove that Mr. Mao is responsible for the management of the bathhouse, decides to enter the project, provides an account to collect funds, and instructs the manager to avoid the yellow check. It can be concluded that Mr. Mao, knowing that prostitution exists, still provides a place for Mr. Wang and others, and has been suspected of hosting prostitution. On April 29, 2020, he pleaded not guilty to the decision to appeal for reconsideration.
The People's Procuratorate of Tiantai County shall designate a person in charge of the department to handle the case. After reviewing all the case materials, verifying the case facts and evidence, and listening to the opinions of the Public Security Bureau of Tiantai County, it was considered that the evidence proving that Mao knew that prostitution existed in the bathhouse was not true and sufficient. With the approval of the Procurator General, on May 29, 2020, he decided to maintain the original decision not to prosecute, and explained the reasons to the public security organ.
（4） Non prosecution review
On June 4, 2020, Tiantai County Public Security Bureau submitted to Taizhou People's Procuratorate for review.
The Taizhou Municipal People's Procuratorate assigned the deputy procurator in charge to handle the case, examined the original case file and the file of the convicted accomplice, verified the key evidence of the case, and listened to the opinions of the Tiantai County Public Security Bureau and the Tiantai County People's Procuratorate. According to the examination, Mao is the actual operator of the bathhouse, and all affairs of the bathhouse, including prostitution, are managed and controlled by Mao. In combination with the fact that Mao was punished for prostitution during the operation of the bathhouse, even if Mao did not plead guilty, and based on the facts and evidence of the whole case, it can be recognized that Mao provided a place for Wang and others while knowing that Wang organized prostitution activities in the bathhouse, At the same time, he is also responsible for the management and settlement of prostitution funds, the management of prostitution places and prostitutes, and has been suspected of organizing prostitution rather than staying in prostitution.
The Taizhou Municipal People's Procuratorate believed that the original case was not correctly applied to the charges, improperly grasped the standard of proof, and wrongly made the decision not to prosecute in case of doubt. On July 3, 2020, the People's Procuratorate of Tiantai County rescinded its decision not to prosecute, and guided the People's Procuratorate of Tiantai County to do a good job in reviewing, prosecuting and appearing in court for public prosecution.
（5） Processing results
On July 3, 2020, the People's Procuratorate of Tiantai County decided to arrest Mao on suspicion of organizing prostitution. After being arrested, Mao voluntarily pleaded guilty to punishment, confessed to the crime of organizing prostitution, and signed a written statement of guilty to punishment. On August 12, the People's Procuratorate of Tiantai County indicted Mao for organizing prostitution.
On August 31, 2020, the People's Court of Tiantai County made a judgment of first instance, adopted the facts, charges and sentencing suggestions charged by the procuratorial organ, and sentenced Mao to five years and three months of fixed-term imprisonment and a fine of 200000 yuan for the crime of organizing prostitution. After the judgment was pronounced, Mao did not appeal, and the judgment has taken effect.
【 Guiding significance 】
（1） When handling a criminal case involving prostitution, if the venue operator pleads ignorance of prostitution activities in the venue, it shall analyze and judge the evidence of the whole case. When the formal items and prostitution coexist in the place involved in the case, the People's Procuratorate shall examine whether the direction of evidence on record is consistent, whether the evidence corroborates each other, and combine the position, authority Whether there are factors such as evading inspection and whether the place has ever been punished for prostitution, etc., use logical rules and rules of experience to analyze whether the actor's defense is consistent with common sense, and judge it based on the evidence of the whole case.
（2） Where a place operator provides a place for prostitution, but also manages and controls prostitution, it shall be deemed as the crime of organizing prostitution. The objective aspects of the crime of organizing prostitution and the crime of sheltering prostitution may both have the act of sheltering prostitution, but the elements of the crime of sheltering prostitution are limited to providing places. If the place operator knows that others rent their places and manage or control others' prostitution by means of recruitment, employment and other means, he still provides places for them, and stipulates and manages the distribution ratio of prostitution funds, and manages prostitution places, personnel and prostitution income, It should be recognized as the crime of organizing prostitution.
（3） The people's procuratorate at a higher level shall conduct a substantive review of the case of non prosecution review, and if it believes that the people's procuratorate at a lower level has made a wrong decision on non prosecution and reconsideration, it shall correct it according to law. The public security organ's reconsideration and review of the decision not to approve arrest or prosecute is not only the reflection of mutual restriction between the public security organ and the procuratorial organ, but also the reflection of the procuratorial organ's internal supervision and the supervision of the superior over the subordinate. We should give full play to the role of error prevention and correction through the review procedure and unify judicial standards to ensure the correct exercise of procuratorial power. For major, difficult and complicated reconsideration and review cases, it is recommended that the department head, deputy chief procurator in charge or chief procurator handle them. When handling a rechecked case, the case file shall be consulted, the substantive examination shall be carried out, and attention shall be paid to listening to the opinions of the public security organ and the people's procuratorate at a lower level, and the evidence shall be rechecked when necessary. If, after examination, it is believed that the decision of the people's procuratorate at a lower level not to initiate a prosecution is indeed wrong, it shall, in accordance with law, instruct the people's procuratorate at a lower level to make corrections, or revoke or change the decision of the people's procuratorate at a lower level not to initiate a prosecution, and guide the people's procuratorate at a lower level to do a good job in the follow-up work of the case.
[Relevant regulations]
Article 358, Paragraph 1 and Article 359 of the Criminal Law of the People's Republic of China
Article 179 of the Criminal Procedure Law of the People's Republic of China (revised in 2018)
Paragraph 2 of Article 379 and Article 380 of the Rules of Criminal Procedure of the People's Procuratorate (revised in 2019)
Article 1, Paragraph 1 of Article 8 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Forcing, Inducing, Hosting and Introducing Prostitution (FSH [2017] No. 13, implemented on July 25, 2017)
Procuratorate: Taizhou People's Procuratorate Zhejiang Tiantai People's Procuratorate
Procurator in charge: Wu Shuguang, Bi Chang
Case writer: Li Jicheng, Chen Jia, Zhang Guohong, Bi Chang, Chen Junying
