SPP Guiding Cases: Set 1

Notice on the Publication of the First Set of Guiding Cases

People's procuratorates of all provinces, autonomous regions and directly governed municipalities; military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:

Through deliberation and decision of th 53rd meeting of the Supreme People's Procuratorate's 11th procuratorial committee on December 15, 2010, three cases are provided for your consideration: the case of Shi X and 16 other gathering crowds to brawl, the case of kidnapping by Xin X, and the case of twisting the law of temporary service of sentence outside of prison for personal gain.

Supreme People's Procuratorate

December 31, 2010

The case of Shi X Gathering Crowds to Brawl

　　（Procuratorate CaseNo.1）

[Main Ideas]

In handling criminal cases arising from mass incidents, procuratorates should deeply understand all the complicated factors behind the case from the perspective of promoting resolution of social problems, and handle them cautiously in accordance with law, actively participating in mediating the conflict or dispute, promoting social harmony and the organic unity of legal and social effects.

[Basic case details]

Nine people, including suspect Shi X, are from Fujian province, Shishi Yongning township, Xicen village.

Eight persons, including suspect Li X, are from Fujian Province's Shishi city, Yongyu township, Ziying village.

Fujian Province's Shishi City Yongning Township's Xicen village and Ziying village are neighbors and originally had a friendly relationship. In recent years, the two villages have had a dispute as a result of land and water drainage issues. In order to resolve the dispute between the two villages, the Yonging township government has previously organized staff to work at the scene of the disputed land and drainage borders, but were obstructed and unsuccessful several times. On December 17, 2009, at about 8:00 AM, the township sent town officials with he work team to try once more. At about 9:00, 9 criminal suspects including Mr. Shi appeared at the border between the two villagers, along with more than ten villagers from Xicen village wearing hard harts, carrying bags of stones and instruments such as wooden sticks and spades. Thereafter, 8 criminal suspects including Mr. Li and over 10 villagers from ZiYing village arrived at the border under construction , carrying wooden sticks, spades and other instruments. The two sides were at an impasse and began hurling insults and stones at each other. Police Dispatched from the Shishi municipal public security bureau separated the villagers and urged them to leave, but some villagers did not heed the dissuasion and continues to shout curses and throw stones, causing two police cars to be damaged (appraised at a value of 761元), three police officers' hands were injured ( evaluated as less than slight injuries).

[Procedural history]

After the incident, the Shishi municipal public security bureau submitted the case against the nine active participants in the fighting from Xicen village and the 8 persons from Ziying village to the Shishi municipal people's procuratorate for approval of arrest on charges of gathering crowds to brawl. So as to keep the situation from expanding and to create conditions favorable for resolving the conflict, the Shishi muncipal people's procuratorate, while approving arrest, also recommended that the public security organs and relevant departments bring together the village committees from the two villages for conflict resolusion efforts, and urge the two sides to settle. On March 16, 2010, the Shishi municipal public security bureau transferred this case to the Shishi municipal people's procuratorate to be reviewed for prosecution. In handling this case, the Shishi municipal people's procuratorate seized on the key of resolving the accumulated grievances and specially established a working group on resolving the conflicts, and strove to resolve the conflicts between the two villages. After receiving support from the local Party committee, people's congress, and government, the working group visiting the Party committee and government for Yongning township, in which the villages are situated, went to the disputed area to inspect, and communicated with the village committees to formulate a work plan. Later, they coordinated with the town government to take the lead in soliciting expert opinions and carry out work in contested areas in accordance township plan for water and waste removal, to start from the perspectives of traffic safety and environmental protection and construct safety barriers and pedestrian paths in the areas near the contested water removal drains, and put this in the township's uniform plan. This measure received villagers from both villages general acceptance. While the conflict was being resolved, the working group was patient and carefully conducted an explanation of law and statement of reasoning, policy education, emotion counseling and thought reform; relevant parties from both villages and their families made representations of repentence regarding the use of unlawful conduct such as gathering crowds to brawl as a means of resolving disputes and conflicts, and they all expressed clear desire to reach agreement. On April 23, 2010, the village committees of Xicen village and Ziying village signed a settlement agreement, and the persons involved in the case separately gave written assurances stating that from that day on they would not cause problems and promising to obey rules and follow the law. Therefore, the dipute between the two villages received a proper resolution and the root of the conflict was removed.

The Shishi municipal people's procuratorate found: The conduct of the 17 persons including Shi has violated articles 292 paragraph 1 and 250 paragraph 1, of the Criminal Law of the People's Republic of China, and they should be prosecuted for criminal liability in accordance with law on suspicion of gathering crowds to brawl. On the basis of article 142 paragraph 2 of the Criminal Procedure Law of the People's Republic of China, on April 28, 2010, the Shishi minicipal people's procuratorate, made a decision to not prosecute Shi and the other 16 people , in view of the fact that they did not participate in the organizing of crowds to brawl for purposes of personal enmity or to dominate others, because the property harm and personal injury caused were minor, and because there were no serious consequences; considering it from the principle of combining punishment and education and benefiting the advancement of social harmony. the two villages' village committees had reached a settlement agreement and Shi et al also made written assurances.

The Xin X Kidnapping Case

　　（Procuratorate CaseNo. 2）

[Main Ideas]

In appeals of death penalty cases, the conditions for application of the death penalty should be correctly understood, there should be strict standards of proof, and the duty of legal supervision over criminal trials should be performed in accordance with law.

[Basic case details]

The defendant is Xin X, male, born February 1, 2959, ethnic Han, from Ningbo City in Zhejiang province, high school education level. We criminally detained on September 9, 2005 on suspicion of kidnapping, and was formally arrested on September 27, 2005. He was criminally detained on September 9, 2005 on suspicion of kidnapping, and was formally arrested on September 27, 2005.

Defendant Xin X, was economically hard pressed and came up with the plan of kidnapping a child and extorting the parents, and went to Cixi city in Zhejiang Province several times for scouting and to select a kidnapping target. On the afternoon of August 18, 2005 Xin X drove his own tongbao brand micro-van, plate number B3C751, from Ningbo to a circle in the main area of Cixi, near the college for the elderly, to wait for an opportunity to commit the crime. At about 1:00 on the same day, Xin saw the girl Yang X (female, born June 1, 1996, 3rd grade student at the Zhejiang province, Cixi municipal Hushan East Gate Elementary school; died at age 9 as a result of this case) walking alone and tricked her into the car by saying that "Teacher Chen is looking for you" , then trapped her under a plastic bathing tub and drove to Ningbo city's Dongqianhu township. That night at about 10:00, Xin tricked Yang's father's cellphone and home phone numbers from her, and then took Yang to an area near an old air defense bunker in Ningbo city's Beilun district Xinqi township Suanshan village, and there killed Yang by covering her mouth and nose, and buried her. On August 19, Xin took a train to Anhui Province's Guangde county and bouth a Bodao model 1220 cellphone, and at about midnight on the 20th, dialed the Yang home phone, saying that he had kidnapped Yang and requesting that Yang's father bring 60,000 yuan in cash to Zhejiang province's Huzhou city Changxing county to exchange for his daughter on the 25th of that month. Later, Xin again took a train to Anhui Province's Wuhu City to make another extortion call, but because he had lost the paper on which he had recorded the Yang familiy phone number, he misremembered the last 4 digits of the phone number changing 2353 into 7353; and when he heard the Ningbo accent of the person answering the phone, as opposed to Yang's father's standard Mandarin, he believed that the police had already entered the case and he decided to call off the extortion. On September 15, 2005, Xin was caught by the public security organs and recounted his experience of kidnapping and killing, and also took public security personnel to area where he had buried the body; and the public security organs took one of the bones, and also took two strands of hair from the tongbao brand micro-van (through DNA testing it was determined that the bones and hair belonged to the victim, Yang. The public security organs seized a Bodao model 1220 cell phone from defendant Xin X.

[Procedural history]

The case of kidnapping by defendant Xin X, was file and investigated by the Zhejiang province, Cixi municipal public security bureau, and transferred to the Cixi municipal people's procuratorate to be reviewed for prosecution on November 21, 2005. The case of kidnapping by defendant Xin X, was file and investigated by the Zhejiang province, Cixi municipal public security bureau, and transferred to the Cixi municipal people's procuratorate to be reviewed for prosecution on November 21, 2005. In accordance with case jurisdiction provisions, on November 28 of that year, the Cixi municipal people's procuratorate sent the case to the Ningbo municipal people's procuratorate to be reviewed for prosecution. The Ningbo people's procuratorate questioned the defendant Xin X in accordance with law, and reviewed the entire case's materials. On January 4, 2006, the Ningbo minicipal people's procuratorate raised a public prosecution against Xin in the Ningbo Intermediate people's court on suspicion of kidnapping.

On January 17, 2006, the Intermediate People's Court for Zhejiang Province formed a collegial panel in accordance with law and openly tried this case. The court at trial found: With the goal of extorting assets, the defendant Xin X, kidnapped and killed another, and this conduct constitutes the crime of kidnapping. The methods were cruel, the consequences serious, and severe punishment should be given in accordance with law. The charges alleged by the procuratorate are established.

On February 7, 2006, the Ningbo Intermediate people's court made it's first-instance judgment: 1. The defendant Xin X is guilty of kidnapping and sentenced to death and deprivation of political rights for life, and confiscation of all personal property. 2. The defendant Xin X will compensate the plaintiff in the attached civil litigation Zhang X, and Zhang X should receive 317, 640 yuan as compensation for death and 11,380 yuan for funeral expenses, for a combined total of 329,020 Renminbi. 3. The Tongbao brand micro-van license plate B3C751 and Bodao model 1220 cell phone used by the defendant Xin are confiscated.

Xin X was unsatisfied with portions of the first-instance trial judgment and raised an appeal to the High People's Court for Zhejiang Province.

On October 12, 2006, the High People's Court for Zhejiang Province formed a collegial panel and openly tried this case. The court at trial found: With the goal of extorting assets, the defendant Xin X, kidnapped and killed another, and this conduct constitutes the crime of kidnapping. The circumstances of the crime are especially serious, the social harm is great, and punishment should be given in accordance with law. However, in light of the specific circumstances of the case, the death sentence given to Xin need not be be immediately enforced. On Aprial 28, 2007, the High People's Court of Zhejiang Province made the second-instance trial judgment: First, the sentencing portion of the Zhejiang Province, Ningbo Intermediate people's court's judgment (2006) Criminal case No. 16 with attached civil suit, is revoked and the other portions are maintained; Second, the defendant is guilty of kidnapping and sentenced to death with a two year suspension of sentence, and deprivation of political rights for life.

The victim, Yang X's, father was disatisfied and appealed to the Zhejiang Province people's procuratorate requesting they make an appeal on June 25, 2007.

Upon review, the Zhejiang province people's procuratorate found that was truly error in the Zhejiang High People's Court's changing the judgment of the second-instance trial to give Xin a death sentence with two year suspecnsion; and on August 10, 2007 requested that the Supreme People's Procuratorate submit a procuratorial counter-appeal in accordance trial supervision procedures. The Supreme People's Procuratorate sent staff to Zhejiang to specially review the case's relevant circumstances. The Supreme People's Procuratorate's procuratorial committee deliberated this case twice, finding that the facts showing that kidnapping was committed by Xin were clear and that the evidence was credible and sufficient, and that in accordance with law he shall be punished to death with immediate enforcement; the Zhejiang Province High People's Court's changing of the judgment to a sentence of death suspended for two years on the bases of 'specific case facts' was in error and should be corrected. Our reasons are as follows:

I. The above facts of the crimes are clear and the evidence is credible and sufficient. The physical and documentary evidence, witness testimony, defedant confessions, evaluation opinions, on-site inspection records, and other evidence in this case is sufficient to form a complete evidentiary system. .The public security organs found the body of the vicitm Yang on the basis of Xin's confession, many details of the confession were confirmed by other evidence such as the location where the body was buried, the positioning of the body, that the body was barefoot, that there was no book bag in the grave, the reason for dialing the wrong number, the number of times that extortion calls were made, the content of the calls, and the accent of the person answering.

2. The Zhejiang Province High People's Court second-instance trial Judgment is truly in error. The second-instance trial judgment found there were two points in question in the case evidence. First is that witness Fu X who sold the Bodao model 1220 cellphone to Xin testified that the serial number of that phone was not the same as the one seized by public security personnel, calling into question whether the phones were the same. Through trial, the doubt on these 2 points could be dispelled. First is the question about whether the cellphone's were identical. Upon review, when public security personnel questioned Fu X , the cellphone's original owner's, Hong X's, ID number was incorrectly recorded as the cellphone's serial number. .In the "Inventory of Items and Files transferred with the case" sent by the Ningbo municipal people's procuratorate to the Ningbo municipal intermediate people's court, it is clearly written that the serial number of the Bodao model 1220 cellphone is 350974114389275, however, evidence such as the "Proof of sale of used goods" for Hong's sale of the phone to Fu, clearly shows that the phone the phone seized from Xin's person was the cellphone used in extorting money, and that phone is the one in the Ningbo intermediate people's court; so that the question of whether the phones are the same can be laid to rest. Second is the issue of whether there is a middle-aged woman involved in the case. The case file has evidence sufficient to show that the 'middle-aged women leading a girl off' in Song and Hua's testimony, has nothing to do with this case. Song and Hua's testimony puts the site of the middle-aged woman leading a girl off about 200 meters east of the site of the kidnapping, a different location entirely than the site of Xin's kidnapping of Yang. Hua's testimony was about the the entrance of a computer training school south of the Di'ou coffeeshop, which is not where Xin committed the kidnapping; Song's testimony was about the intersection south of the Di'ou coffeeshop, and was not the scene of the kidnapping at the north wall of the University for the Aged, and because north wall of the University for the aged where the kidnapping occurred was obstructed from wehere Song was situated, this issue is also excluded. Furthermore, the description of the girl's appearance and other details raised by the two men does not match that of Yang.

III, Xin's criminal conduct is extremely serious, and he must be punished with death penalty for immediate execution. First is that Xin very carefully planned the crime and that his subjective malice is extremely deep. Xin conducted careful planning in order to perpetrate the kidnapping, going "scouting" in Cixi several times, and choosing a quiet and out of the way location with nobody around as his route for committing the crime. Xin tricked Yang into his car to kidnap her, saying that "teacher Chen is looking for you", using the family name of the Cixi municipal University for the Elderly's Jianqiao Englsih Class Director, Teacher Chen. Xin resides in Ningbo's Yinzhou district, and chose to commit the kidnapping in Ningbo's Cixi city and to murder the victim in Ningbo's Beilun district, and when extorting money went to Guangde county in Anhui Province to buy a Bodao model 1220 cellphone, used a phone card from another location, made calls from Anhui's Xuancheng and Wuhu cities, and requested that the victim's father make the exchange in Zhejiang's Changxing county. Second is that the consequences of Xin's crime were extremely serious and the social harm extremely large. After committing the kidnapping and getting the victim's family information, to make it so that his crime would not be discovered, Xin killed the just nine-year old Yang burned her book bag, and threw away her shoes that had come off in the struggle, acting to destroy evidence of the crime. After being brought in, Xin's attitude in admitting his crime has been poor. At first, he would not confess to the crime and concealed the source of the phone he used in committing the crime, and then, although he confessed, he invented other accomplices who participated in the crime. Xin's conduct has not only deprived the victim of her life and caused enormous suffering to the victim's family that can never be made up for, but has also seriously impacted the feelings of security of the local public. Third is that the second-instance trial changing the judgment to Xin being given a death sentence with a two-year suspended sentence is not accepted by the victim's family and the local public. The victim's family emphatically requested that Xin be given a death sentence for immediate enforcement, and the local public had difficulty accepting the second-instance trial judgment change to a suspended death sentence and requested judicial organs severely punish Xin.

On October 22, 2008, the Supreme People's Procuratorate submitted a procuratorial counter-appeal to the Supreme People's Court in accordance with article 205 paragraph 3 of the Criminal Procedure Law of the People's Republic of China. On March 18, 2009, the Supreme People's Court ordered the Zhejiang High People's Court to separately form a collegial panel and conduct a retrial of Xin's case.

On May 14, 2009 the Zhejiang Province High People's Court separately organized a collegial panel to publicly try this case in open court. The court at trial found:Defendant Xin kidnapped and killed another person for the purpose of extorting assets, his conduct consituted the crime of kidnapping and the criminal method was cruel, the circumstances heinous, the social harm extremely serious, and there is no show of repentance at all, a severe punishment should be given in accordance with law. The procuratorate opinion requesting a correction to the second-instance trial judgment is sustained. Xin and his defender's opinion requesting that the second-instance trial judgment be sustained has insufficient support and is not adopted.

On June 26, 2009, the Zhejian Province High People's Court made judgment in accordance with articles 205 paragraph 2, 206 and 189 paragraph 2 of the Criminal Procedure Law of the People's Republic of China, and with articles 239 paragraph 1, 57 paragraph 1, and 60 of the Criminal Law of the People's Republic of China.1. The portion of the Zhejiang Province High People's Court's (2006) Zhejiang Criminal final judgment No. 146 on sentencing of the defendant Xin X is revoked, the other portions of that judgment are sustained, as is the Ningbo Intermediate people's court's (2006) initial criminal judgment No. 16 on the attached civil litigation; 2. the defendant is guilty of kidnapping and sentenced to death and deprivation of political rights for life, and confiscation of all personal property, and this is reported to the Supreme People's Court in accordance with law for review and approval.

On final review, the Supreme People's Court found:With the goal of extorting assets, the defendant Xin X, kidnapped and killed another, and this conduct constitutes the crime of kidnapping. The method of his crime were cruel, the circumstances heinous, and the consequences serious, and there are no statutory mitigation circumstances. The facts determined by the High People's Court for Zhejiang Province are clear and the evidence credible and sufficient, the verdict is correct, the sentence appropriate, and the procedures lawful.

On November 13, 2009, the Supreme People's Court made ruled in accordance with article 199 of the Criminal Procedure Law of the People's Republic of China and article 2 paragraph 1 of the "Supreme People's Court Provisions on Several Issues in the Final Review of Death Penalty Cases"The defendant Xin X is guilty of kidnapping and sentenced to death and deprivation of political rights for life, and confiscation of all personal property.

On December 11, 2009, defendant Xin X was executed in accordance with law.

The case of Li x, temporarily serving a sentence outside of prison for abusing public office to show favoritism and for personal gain

　　（Procuratorate CaseNo.3）

[Main Ideas]

Where judicial personnel take bribes and give a commutation, parole or temporary service of sentence outside of prison to a criminal not eligible for commutation, parole or temporary service outside of prison, criminal liability should be pursued on the basis of the specific circumstances of the case.

[Basic case details]

Defendant Lin X; Male, born August 21, 1964; ethnic Han; former warden of the third prison of the Jilin Prisons. On November 1, 2008, was taken into custody on suspicion of abusing public office for favoritism and personal gain, and was arrested on November 14, 2008.

In December 2003, Gao X was sentenced to 12 years imprisonment by the Beijing Dongcheng District people's court for contract fraud and entered the Jilin Province's Jilin Prison in January 2004 to serve his sentence. While serving his sentence, Gao met Zhao. who was also serving a sentence, and asked Zhao to arrange release on medical parole for him. Zhao found defendant Lin X, the then deputy warden of the Jilin prison 5th prison area, and told him that Gao was willing to pay to arrange release on medical parole and have Lin help with handling the formalities. Lin X agreed to help communicate this. Afterwards, Lin sought out prisoner Du X, to have Du concoct medicines that would make it appear one had contracted an illness. As arranged by Zhao, on March 24, Gao "fell ill" after taking the medicine" and went to the hospital. Lin X clearly knew that Gao X was faking illness but still sought out Wang X, of the enforcement department of the Jilin Prison (handled in a separate case), to have him handle Gao's release on medical parole, and presided over the prison region's deliberation committee to which Gao's release on medical parole was submitted. At the committee meeting, Lin concealed the circumstances of Gao's faking an illness causing the deliberation committee to approve Gao's application for release on medical parole, and then he reported the materials relevant to teh release on medical parole to the enforcement department. During this period, Gao had his younger brother, Gao Y, and Zhao give Lin 50,000 as a bribe (Lin gave 30,000 of this to Wang). On April 28, 2004, through a report to the Jilin prision, the Jilin Provincial prison administration bureau approved Gao's temporary service of sentence outside of prison for 1 year due to inflamation of both lungs, infectious shock and respiratory failure. On April 30 of that year, Gao was released on medical parole. On May 18, 2006, Gao was put into prison.

[Procedural history]

On October 28, 2008, the people's procuratorate for the Kuangcheng district of Changchun City in Jilin Province filed and investigated the case of Lin X's suspected involvement in twisting the law of temporary service of sentences outside of prison for personal gain. On August 4, 2009, the Changchun Kuangcheng district people's procuratorate initiated a public prosecution in the Changchun Kuangcheng district people's court against Lin X for for twisting the law of temporary service of sentence outside of prison for personal gain. On October 20, 2009, the Changchun Kuangcheng district people's court made its (2009 Kuangcheng initial criminal judgment No 223, sentencing Lin to 3 years imprisonment for twisting the law of temporary service of sentence outside of prison for personal gain.