Source: Official Website of the Ministry of public security
On April 29, 2022, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the revised "provisions on the standards for filing and prosecution of criminal cases under the jurisdiction of public security organs (II)" (hereinafter referred to as "standards for filing and prosecution (II)"), which will come into force on May 15. In order to facilitate the correct understanding and application in the judicial practice of law enforcement, the heads of the relevant departments of the Supreme People's Procuratorate and the Ministry of public security were interviewed.
Q: please introduce the background, process and main considerations of the revision of the standard for prosecution on file (2).
A: In May 2010 and November 2011, the Supreme People's Procuratorate and the Ministry of Public Security jointly formulated and promulgated the provisions of the Supreme People's Procuratorate and the Ministry of public security on the filing and prosecution standards of criminal cases under the jurisdiction of public security organs (II) and its supplementary provisions (hereinafter referred to as the original standards for filing and prosecution (II)), The standard of filing and prosecution of 89 kinds of criminal cases under the jurisdiction of the economic crime investigation department of the public security organ is stipulated, which provides a clear basis for the public security judicial organ to handle economic crime cases according to law, plays a positive role in punishing economic crimes according to law, ensuring national economic security and promoting the healthy and orderly development of socialist market economy, and has achieved good results.
In recent years, with the development of economy and society, China's economic crimes have presented new situations and new characteristics. In particular, the amendment of criminal law, company law, securities law and other laws, as well as the relevant judicial interpretation and judicial interpretation nature documents have been issued in succession. At the same time, it is affected by the reform of the national supervision system and the adjustment of the division of criminal jurisdiction of the Ministry of public security, The original "standard for prosecution (2)" can not fully adapt to the current practice of law enforcement and judicial handling of cases, so it is necessary to revise and improve it in time. From June 2020, the Legal Policy Research Office of the Supreme People's Procuratorate, the fourth Procuratorate's office, the economic crime investigation bureau of the Ministry of public security and the legal bureau of the Ministry of Public Security jointly form a special working class to start the comprehensive revision of the standard for filing and prosecution (2). The standard of public security organs to file and investigate criminal cases has been extensively reviewed and studied. The standard for prosecution (2) was deliberated and adopted by the 92nd meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on February 25, 2022, and the 35th general meeting of Ministers of the Ministry of public security on March 25, 2022, and shall come into force on May 15, 2022.
In the process of studying and revising the standard of prosecution (2), we should pay attention to the following four aspects
First, we should adhere to Xi Jinping's thought of socialism with Chinese characteristics in the new era and Xi Jinping's Thought on the rule of law as the guiding ideology throughout the whole process. We should conscientiously implement the deployment requirements of the "opinions of the CPC Central Committee on strengthening the legal supervision of procuratorial organs in the new era", "the opinions of the CPC Central Committee on strengthening public security work in the new era" and the "opinions on cracking down on securities illegal activities in accordance with the law" issued by the Central Committee of the Communist Party of China and the State Council, and punish crimes that undermine the order of the socialist market economy, To provide strong judicial guarantee for the high-quality development of economy and society.
Second, we should pay attention to following the spirit of legislative amendment to ensure the detailed implementation of legal provisions. We should conscientiously implement the spirit of legislative revision of criminal law, securities law, company law and other laws and regulations, improve the standards for filing and prosecution of related crimes, promote the correct understanding and accurate application of legal provisions by public security and procuratorial organs, and standardize the handling of related cases.
Third, we should pay attention to the problem orientation and strengthen the guidance to the judicial handling of cases. This paper comprehensively summarizes the key and difficult problems in handling economic crime cases, makes targeted adjustments and modifications to the standards for filing and prosecution of relevant crimes, unifies the judicial scale of law enforcement, strengthens the guidance of case handling, and improves the quality and efficiency of handling cases.
Fourth, we should pay attention to the embodiment of criminal justice policies and help the modernization of national governance system and governance capacity. Combining with the actual situation of handling economic crime cases, we should implement the criminal justice policy of leniency in confession and punishment, temper justice with leniency, and be cautious in suing and detaining with less arrest, so as to make room for the comprehensive use of administrative, economic and civil means to deal with economic illegal activities, ensure the high-quality development of economy and society with the high-quality development of law enforcement and judicial work, and achieve political effects The organic unity of legal effect and social effect.
Q: please introduce the general revision of the standard for prosecution on file (2).
A: the name and style of the standard for prosecution on file (2) follows the model of the former standard for filing and prosecuting (2), and the contents of the provisions include those under the jurisdiction of the public security organ The standards and supplementary provisions of 78 kinds of economic crime cases. According to the specific ways of adjustment and modification, it can be divided into four categories:
First, according to the revision of the law and judicial interpretation, the The standard of prosecution of 21 kinds of cases has been revised and improved. The securities law of the people's Republic of China and the securities law of the people's Republic of China have been amended in accordance with the securities law of the people's Republic of China. At the same time, according to the revised contents of criminal law, company law and other laws and judicial interpretations, the prosecution standards of 12 kinds of cases such as false declaration of registered capital are revised.
Second, comprehensive economic and social development, balance of similar crimes and other factors 15 kinds of cases have been revised and improved. Considering the economic and social development of our country and the coordination of the prosecution standards for similar crimes, the amount standard in the filing and prosecution standards of seven kinds of cases, such as Bill fraud, is revised; According to the provisions of the criminal law and the needs of judicial practice, on the basis of the original "standard for prosecution (2)", the specific circumstances of the prosecution standards for eight kinds of cases, such as smuggling of counterfeit currency, have been revised to further organize the legal network of accountability.
The third is reference The judicial interpretations being studied and drafted by the "two Supreme People's Procuratorate and Supreme People's Procuratorate" have revised and improved the standards for filing and prosecuting 25 kinds of cases. In combination with the six judicial interpretations currently being studied and drafted by the "two Supreme People's Procuratorate and the Supreme People's Procuratorate", the standards for filing and prosecuting 25 kinds of cases, such as bribery cases of non-state staff members, are adjusted, which is consistent with the provisions of the latest draft of judicial interpretation, so as to accelerate the introduction of relevant judicial interpretations.
Fourth, it is The standard of prosecution of 17 kinds of cases follows the original standard of filing and prosecution (2), which has not been modified. Based on the opinions of various parties, the original provisions shall be adopted for the filing and prosecution standards of 17 kinds of cases, such as the cases of obstructing liquidation which have not been modified or can meet the needs of judicial practice.
It should be noted that the standard of prosecution on file (2) moderately improves the standard of the amount of prosecution for some economic crime cases. There are three main considerations: first, it is in line with the reality of economic and social development. For example, China's capital market After more than 30 years of accumulation, both the scale and quality of the market have made great progress. The actual amount of securities illegal crimes such as fraudulent issuance and illegal disclosure of information has been far higher than the original standard of prosecution. Properly improving the standard of some amount of filing and prosecution has no substantial impact on criminal prosecution. Second, it is in line with the judicial practice. The standard for prosecution on file (2) increases the standard of criminal means, circumstances and harmful consequences while moderately improving the amount standard. For example, the standard of "causing loss of state tax revenue" and "illegal profit" is added to the crime of endangering tax collection and management, and the situation of strict prosecution is not relaxed. It is not only in line with the objective reality, but also reflects the spirit and requirement of "strict" of the Central Committee to improve and perfect the standard of filing and prosecution moderately. Third, it is in line with the need of linking administrative punishment with criminal punishment. Due to the low level of administrative punishment in the past, the administrative punishment is not applicable to criminal cases. According to the degree of social harmfulness of illegal acts, moderately improving the standard of the amount of some cases filed for prosecution can better realize the two-way effective connection between administrative law enforcement and criminal justice, and give full play to the governance efficiency of administrative laws and regulations. In practice, the public security and procuratorial organs should transfer the illegal economic acts without criminal responsibility to administrative punishment according to law, so as not to let the criminals escape punishment.
Q: what are the highlights of the revised standard for prosecution (2).
A: the standard for prosecution (II) adheres to the guidance of Xi Jinping's thought of socialism with Chinese characteristics in the new era, comprehensively implements Xi Jinping's legal thought, closely combines China's economic and social development and legal construction experience, and actively responds to the higher requirements of the people in the new era for democracy, rule of law, fairness, justice, security and environment, so as to serve the overall situation, Practice is people-centered. There are three main highlights:
One is the prominent political nature. We should conscientiously implement the "opinions of the CPC Central Committee on strengthening the legal supervision of procuratorial organs in the new era" and "the opinions of the CPC Central Committee on strengthening public security work in the new era", actively grasp the new development stage, implement the new development concept, and build a new development pattern During the period of the "14th five year plan", we should find out the focus of public security and procuratorial work. The standard for prosecution (2) adheres to the strict punishment of illegal fund-raising, money laundering, securities and tax related crimes, prevents the disorderly expansion of capital, effectively maintains financial security, and serves with more practical measures to ensure steady progress and high-quality development of the economy and society.
Second, it is fresh and contemporary. Since the 18th National Congress of the Communist Party of China, the CPC Central Committee with Comrade Xi Jinping as the core has attached great importance to the equal protection of the legitimate rights and interests of all kinds of enterprises in accordance with the law, and demanded to improve the legal environment for fair competition among various market entities. The Eleventh Amendment to the criminal law strengthens the punishment of the crimes of infringing upon the property of private enterprises, and further improves and adjusts the penalty allocation of the crime of occupation, bribery of non-state staff and misappropriation of funds. Therefore, the standard of prosecution on file (2) is against the bribery crime of non-state staff The five kinds of non-state staff duty crime prosecution standards adopt the same conviction standard as bribery crime and other state functionary duty crimes, and give equal judicial protection to all kinds of market subjects, such as state-owned enterprises, private enterprises, domestic and foreign capital, small and micro enterprises, and fully reflect and implement the spirit of the times of equal protection of property rights.
The third is the distinct rule of law and practice. Comprehensively combing and absorbing the spirit of the amendment to the criminal law, legislative interpretation, relevant administrative laws and regulations, judicial interpretation and judicial interpretation nature documents, systematically modify and improve the standards for filing and prosecution, increase or reduce the relevant amount standard according to the actual situation, add multiple standards such as supplementary means, circumstances and consequences, and further clarify the meaning of relevant crimes, Clear the boundaries between crime and non crime, this crime and that crime. In the process of handling fraud cases, the public security organs should pay more attention to the problems in the practice, such as issuing false invoices, making full use of the law, and strengthening the judicial practice.
Q: please tell us about the main work and achievements of the public security organs in cracking down on economic crimes in recent years.
A: in recent years, the public security organs have adhered to the guidance of Xi Jinping's thought of socialism with Chinese characteristics in the new era, thoroughly implemented General Secretary Xi Jinping's important exposition on public security work in the new era, severely cracked down on and actively prevented various economic crimes, and achieved remarkable results. From 2017 to 2021, the national public security organs cracked 418000 economic crime cases, recovered more than 270 billion yuan of economic losses, effectively maintained the national economic security and social stability, and escorted the healthy development of the economy and society.
First, we should focus on preventing and resolving major economic and financial risks. From 2018 to 2020, the Ministry of public security organized special operations against illegal fund-raising crimes for three consecutive years, and cracked 17000 cases of illegal fund-raising according to law; Actively cooperate with the special rectification of Internet financial risks, and investigate and deal with a number of online lending platforms in accordance with the law; We cracked down on all kinds of pyramid selling activities, and cracked more than 9800 cases of organizing and leading pyramid marketing activities. We will strengthen command, guidance, organization and coordination in major national and cross regional economic crime cases to ensure the "one game of chess" across the country. We should adhere to the principle of "handling cases in the sunshine", release authoritative information in a timely manner, open channels of communication with the masses, and actively answer questions and doubts for the masses.
Second, efforts should be made to curb prominent economic crimes. The Ministry of public security organized special operations to crack down on crimes committed by underground banks, destroyed a large number of major cross regional criminal networks and effectively blocked the channels of illegal fund circulation. since Since 2019, the Ministry of public security has organized the national public security organs to carry out the "hundred cities battle" campaign against tax related crimes for three consecutive years, and jointly with the State Administration of Taxation, the General Administration of customs, the people's Bank of China and other departments, organized two-year special operations to combat tax fraud and fraud, and resolutely safeguard tax security. We will continue to promote the "fox hunting" special operation, focus on the key targets of "100 red links" and major economic crime fugitives, and capture a number of economic suspects who have fled. The special work of cracking down on crimes in the capital market has been organized and carried out. A large number of major cases with great social impact have been cracked, and the security and stability of the capital market have been effectively maintained.
Third, focus on serving economic and social development. In accordance with the law, we will severely crack down on outstanding crimes involving enterprises, such as contract fraud, job encroachment and commercial bribery, and focus on cracking down on and destroying a number of professional criminal gangs that infringe on the legitimate rights and interests of enterprises. In the past two years, the Ministry of public security and the all China Federation of industry and Commerce have successively signed the framework agreement on strengthening service and ensuring private economic cooperation and the opinions on establishing and improving the mechanism of communication, contact and cooperation, forming a working force to actively serve and guarantee the healthy development of the private economy.
Fourth, efforts should be made to improve the ability to standardize law enforcement. The public security organs should be more cautious in handling criminal cases with leniency in handling criminal cases and strict in handling criminal cases. For many years, it has organized law enforcement inspection, 100 cases evaluation, petition verification and special rectification "Three inspections and one treatment" should be carried out to strengthen law enforcement supervision, and a number of non-standard law enforcement problems should be found and corrected in a timely manner. For the problems reflected in the people's letters and visits, we should conscientiously organize and carry out verification, rectify and correct the verified problems, and constantly improve the credibility of law enforcement.
In the next step, the public security organs will conscientiously implement the revised "standards for filing and prosecution (II)", resolutely crack down on various prominent economic crimes in accordance with the law, focus on preventing and resolving major risks affecting economic security, continuously deepen the construction of law enforcement standardization, and spare no effort to build a high-quality and excellent public security Iron Army, so as to make new and greater contributions to ensuring national political security and social stability.
Q: please tell us about the work of the procuratorial organs in punishing economic crimes in recent years.
A: in recent years, procuratorial organs have thoroughly implemented the spirit of General Secretary Xi Jinping's important instructions, and fully fulfilled their political, legal and procuratorial responsibilities for maintaining economic security and promoting healthy economic development. At the beginning of 2019, the internal structure of the Supreme People's Procuratorate will be reformed, and a department specially responsible for the procuratorial work of economic crimes will be set up to comprehensively promote the procuratorial work of economic crimes with specialized institutions and professional teams. In September 2021, in order to implement the opinions on cracking down on securities illegal activities in accordance with the law issued by the central office and the State Council, the Supreme People's Procuratorate was established and dispatched to the procuratorial Office of the China Securities Regulatory Commission to strengthen judicial cooperation and restriction in law enforcement and strengthen the guidance on handling cases. From 2019 to 2021, procuratorial organs throughout the country prosecuted more than 406800 people who committed crimes against the order of the socialist market economy, up 29.78% year on year. On the one hand, procuratorial organs should apply the judicial interpretation and judicial interpretation documents such as the standard of filing and prosecution (2) and other documents to increase the intensity of punishment; On the other hand, based on the case handling and active performance of duties, we have deepened source control and achieved positive results.
One is to guard against financial risks and maintain financial security. We will punish financial crimes according to law, From 2019 to 2021, more than 120000 people were prosecuted for financial crimes. Actively participated in the special rectification of Internet financial risks, and jointly with the Ministry of public security, continuously supervised 36 major cases of illegal fund-raising. We should actively participate in the special struggle against underworld and evil, and severely punish crimes in the field of financial lending in accordance with the law. We will step up efforts to prosecute money laundering crimes. In 2021, 982 cases of money laundering will be prosecuted, which is 10 times higher than that in 2019. The Supreme People's Procuratorate and the people's Bank of China will issue six typical anti money laundering cases. In view of the loopholes in financial supervision found in handling cases, the Supreme People's Procuratorate issued the "No. 3 procuratorial proposal" to promote source governance. We should set up the financial column and strengthen the prevention of financial crimes.
Second, severely punish securities crimes and promote the healthy development of capital market. We will continue to strengthen the handling of securities crimes, In 2021, 229 people were sued, which was 1.8 times of that in 2018. It successfully accused Kangmei pharmaceutical, kangdexin, beibadao and other major cases of financial fraud and manipulation of the securities market. The Supreme People's Procuratorate and China Securities Regulatory Commission issued 12 typical cases. In conjunction with the China Securities Regulatory Commission and the Ministry of public security, we launched special law enforcement actions to crack down on securities violations, and concentrated on supervising and handling 19 major cases of financial fraud and market manipulation.
The third is to protect the rights and interests of enterprises in accordance with the law and create a legal business environment. Focusing on the outstanding problems of disrupting market order and infringing on the rights and interests of enterprises, we will severely punish crimes such as contract fraud, forced trading and illegal pyramid selling in accordance with the law, From 2019 to 2021, more than 143000 people were prosecuted for disrupting the company's enterprise management order and disturbing the market order. Under the background of epidemic situation impact and economic pressure, we should conscientiously implement the political requirements of "six stabilities" and "six guarantees", strengthen judicial protection of private economy, and implement the judicial policy of "less arrest, cautious prosecution and cautious custody", so as to help stabilize employment and protect market subjects. In conjunction with the Ministry of public security, we carried out a special clean-up of "hanging cases" involving enterprises, and cleared up more than 6000 cases, so that enterprises can unload their burdens and go to battle with light loads.
Fourth, we should punish smuggling tax related crimes according to law and maintain tax order and national security. We will focus on key areas such as shell companies, professional gangs and violence, and crack down on tax related crimes in accordance with the law, From 2019 to 2021, more than 36000 people were prosecuted for crimes endangering tax collection and management. The Supreme People's Procuratorate, together with the State Administration of Taxation, and others, established a "normalized working mechanism of six departments to crack down on fraudulent tax fraud", strengthened law enforcement and judicial cooperation, and maintained the order of tax collection and management. We intensified the punishment of smuggling crimes, actively participated in special operations such as "national sword" and "blue sky", cracked down on smuggling of weapons and ammunition, frozen products and refined oil, and prosecuted more than 21000 smuggling crimes. We should actively participate in the special operations against cross-border smuggling in Guangdong, Hong Kong and Macao, and resolutely curb the high incidence of smuggling crimes in non customs areas.
In the next step, the procuratorial organs will conscientiously implement the revised "standards for filing and prosecution (2)", comprehensively use the means of attack, governance and prevention to promote the active performance of economic crime procurators, and contribute to maintaining a stable and healthy economic environment.
Q: last year, the central government office and the State Council issued the opinions on cracking down on illegal securities activities in accordance with the law. How does this revision implement the spirit of the opinions.
A: after the promulgation of the original standard for prosecution (2), the securities law of the people's Republic of China has successively issued In 2013, 2014 and 2019, three amendments or revisions were made; The criminal law of the people's Republic of China (No. 11) has been amended to increase the punishment of illegal issuance of securities and to increase the cost of securities issuance. The opinions of the central office and the State Council clearly require "to implement the amendment to the criminal law (11) and simultaneously revise the standards for filing and prosecuting criminal cases". Therefore, the standards for filing and prosecution (II) implements the working principles of "adhering to zero tolerance requirements, adhering to the principle of rule of law, adhering to overall coordination, and adhering to the bottom line thinking", comprehensively and systematically revised the standards for filing and prosecuting related securities and futures crime cases, leading and promoting relevant judicial interpretation and judicial policies The legal responsibility system of capital market crimes is more perfect. This revision reflects the policy orientation of strictly punishing securities and Futures Crimes
The first is to supplement and improve the crime of fraudulent issuance of securities, illegal disclosure and non disclosure of important information Eight charges of crime means, circumstances, consequences and other standards of prosecution, strict criminal law net. It mainly includes: the crime of fraudulent issuance of securities, the crime of illegal disclosure, the crime of not disclosing important information, a series of financial data fraud means, manipulation of securities, futures market crime and other new manipulation methods; There are new provisions on filing cases and prosecuting cases in different levels for the crime of insider trading, the crime of disclosing insider information and the crime of trading with undisclosed information; New provisions on illegal use of raised funds for the crime of issuing stocks, company and enterprise bonds without authorization have been added; The crime of fabricating and disseminating false information about securities and futures trading, luring investors to buy and sell securities, and futures contracts, which lead to abnormal fluctuation of trading price and trading volume, is adjusted from simultaneous compliance to single compliance.
The second is to strengthen the protection of investors, including the crime of fraudulent issuance of securities, unauthorized issuance of stocks, corporate and corporate bonds, the crime of fabricating and disseminating false information about securities and futures trading, the crime of luring investors to buy and sell securities, the crime of Manipulating Securities and futures market The increase of the five charges caused losses to investors, induced investors to trade, and balanced the amount standard among the charges.
Third, compaction sponsor and other intermediary agencies The duty of "gatekeeper" is to improve the standard of filing and prosecution for the crime of providing false proof documents and the crime of serious misrepresentation. In the field of company listing and securities issuance, the sponsor is the key link to ensure the effective play of the investment and financing function of the capital market. In terms of the authenticity of information disclosure and investor protection, the sponsor has a higher duty of due diligence. The sponsor's issuing a recommendation letter with false records, misleading statements or major omissions, or failing to perform other legal duties, is often related to fraudulent securities issuance, illegal disclosure, non disclosure of important information and other illegal crimes, which has serious social harm The punishment of crimes such as providing false certificates in major asset transactions. Therefore, the standard of prosecution on file (2) should improve the standard of prosecution of related criminal cases, so as to better reflect the spirit of amendment of criminal law (11).