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生日当天优惠

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生日当天优惠《刑法总论案例分析》试卷(B)及参考答案_清源论法_法律博客www_fyfz_cn(Analysis of general criminal law case papers (B) and _ Qingyuan theory method _ reference answer Law blog www_fyfz_cn) 《刑法总论案例分析》试卷(B)及参考答案_清源论法_法律博客 www_fyfz_cn(Analysis of general criminal law case papers (B) and _ Qingyu...
生日当天优惠
《刑法总论案例分析》试卷(B)及参考答案_清源论法_法律博客www_fyfz_cn(Analysis of general criminal law case papers (B) and _ Qingyuan theory method _ reference answer Law blog www_fyfz_cn) 《刑法总论案例分析》试卷(B)及参考答案_清源论法_法律博客 www_fyfz_cn(Analysis of general criminal law case papers (B) and _ Qingyuan theory method _ reference answer Law blog www_fyfz_cn) " Criminal law is the Great Charter of the accused and the Great Charter of good citizens. - - (DE) von List Personal statement: Criminal Code of criminal law is the Bible of criminal law, protect human freedom, only to understand the criminal law norms, exciting life, free. - Feng Jun Papers on case analysis of criminal law (B) and reference answers Published time: 2009-12-16 22:37:00 reading times: 1200 categories: Law Education Papers on case analysis of criminal law (B) A case analysis, (20) the case: the defendant Zhao Department of three generations, and Yang sinceshe got married a girl, Zhao feel dissatisfied, often yebuguisu. Zhao filed a divorce suit against the court for the two time and was dismissed. In September 16, 2003, Zhao Yang was adultery with others after that, began to quarrel between husband and wife. In the afternoon, Yang bought a bottle of pesticide, and after drinking it, Zhao said to her husband, "I drank pesticide."." Zhao said: "drink medicine, why don't you go to the hospital?"" He took the children to play in the yard and shut the door. 20 minutes later, Zhao returned to the house to take things, found the house of pesticides is very strong flavor, Yang koutubaimo. Zhao Qingzhi is not good, will be their daughter in the mother, that something out, hiding the field to elope with lover. That night, Zhao's mother sent back to the child, found Yang has died. According to forensic identification, Yang died of Omethoate poisoning". On the same day, Zhao called home to confirm Yang has died of poisoning, and take lovers around. During the trial, the defendant Zhao's behavior to qualitative, there are three kinds of Views: the first view: the defendant Zhao's behavior does not constitute a crime; the second opinion: the defendant Zhao's behavior constitutes the crime of abandonment; the third opinion: the defendant Zhao's behavior (indirect) not as intentional homicide. Question: please use the criminal law theory to comprehensively analyze Zhao's behavior. Two, case analysis (20 points) case: Chen and Fang, Kwak and others together to discuss retaliation xu. One day, Chen learned that Xu a person at home, he mustered Kwak, Lee, Zhang Xu went home with a lethal weapon. Through a door, a father saw that posture, to the other 4 people said in a hurry to do at home, will be a home, Chen, Guo, Li, Zhang 4 people went to Xu Xu will be seriously wounded. The first view is that the side of a behavior Department of discontinuance of crime; the second view is that a behavior system attempted crime; the third view, the side of a behavior crime; the fourth view is that a behavior belongs to the crime. Question: please explain the reasons for these four views, and express their views. Three, case analysis (20) case: Chen and Liu Department of self-employed Zhang snack coolie, 2002 Chen and Liu Moujun put forward the idea to leave the snack shop Zhang, but Zhang was rejected. One day at noon, Chen will negotiate with Liu, decided to take advantage of Zhang's belongings when Zhang did not pay attention, and then two people together to leave. The afternoon of Zhang in the back room to rest, Zhang's wife Lee out, Chen Liu entered the room outside the dishes, add seasoning, then Liu found cabinet key Lee when they go out in the drawer, and then open the cupboard, there will be 1500 yuan stolen. After Liu came to the house of Chen said it had stolen the money Zhang Chen, after listening, and go to the back of the room, the remaining 500 yuan stolen in the cupboard. After two people fled to a hotel to loot, Chen points to 1000 yuan. (in Fujian Province, the amount of larceny is 1500 yuan) Question: please use the criminal law theory, a comprehensive analysis of Chen and Liu's nature and possible criminal responsibility. Four, case analysis (20 points): punishment case defendant Wang guilty of robbery and theft were sentenced to five years, three years, decided to implement seven years imprisonment and fined 5000 yuan. During the execution of the penalty, the public security organs found that Wang also intentionally injured others, causing serious injuries did not be investigated, and then prosecuted again by the prosecution, asking for criminal responsibility for his intentional injury. Question: please use the criminal law theory to comprehensively analyze Wang's three crimes Five, case analysis (20 points) Case: Deng, Jingzhou Badong people, beautiful and strong, for the industry to Pedicure. One evening, Sha in room, Yesanguan town officials Huang Dezhi, Deng Guida, Deng Yujiao with tiles do not meet, see, he broke into the house, a strong desire to make it. Sternly denounced Deng Yujiao, your anger, whip to coin, said: we are not afraid of gold, thou shalt not from kenya. Despite Yu Jiao, allegedly more angry, but in the horizontal collapse, strong, according to the complex, three smile into each other's eyes. Yu Jiao was speaking Xiufen, fine bladed thorn, three hit to death, and Yu Jiao made Dezhi complex, thorn, hit, Deng Zheda fear, dare not before. Yu Jiao threw his sword and threw himself into the officer. From "historical records of a biography of Deng Yujiao" (network version) Question: please use the criminal law theory to comprehensively analyze Deng Yujiao's behavior nature and possible criminal responsibility. Method: 1, article twentieth of the criminal law: in order to make the state and public interests, the person himself or others, property and other rights from being infringed, and to the suppression of unlawful infringement behavior, causes harm to the unlawful infringer, self-defense, not criminally responsible. If the justifiable defense obviously exceeds the necessary limit and causes great damage, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted. Murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, take defensive action, against illegal caused casualties, it is not undue defence, not criminally responsible. 2 and 232nd states: intentional homicide shall be sentenced to death, life imprisonment or fixed-term imprisonment of not less than ten years; if the circumstances are minor, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. 3 and 234Th stipulates that Whoever intentionally damages another person's body shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Commits the crime, causing serious injury, three years more than ten years of fixed-term imprisonment; causing death or serious injury by especially cruel means to cause serious disability, at ten years imprisonment, life imprisonment or death. Where otherwise provided for in this law, such provisions shall apply. Papers on case analysis of criminal law (B) Reference answer 1. Answer: the first view is that the act of the defendant, Zhao, does not constitute a crime. The reason is (1) Yang's death, is its own poison, no causal relationship between criminal law and Zhao ignored; at the same time, Yang is not young, young, sick or other people without the ability to live independently, the law does not commit Dutch Act expressly provided assistance obligations. (2) although Yang committed suicide with Zhao and others adultery has certain relevance, but there is no direct causal relationship between the two, therefore, Zhao also does not have the criminal act of first aid obligations. The second view: the defendant Zhao's behavior constitutes abandonment. The reasons are as follows: first, Zhao and yang are husband and wife, and Zhao has the obligation to support Yang, which belongs to the subject of the crime of abandonment. The provision of support in the marriage law includes both material and economic upbringing, It also includes life care and care. Yang poison after foaming at the mouth, should be recognized as life can not take care of themselves. In this case, Zhao deserted his wife, objectively abandoned behavior. The third opinion: the defendant Zhao's behavior constitutes (indirect) intentional homicide. I agree with the third opinion for the following reasons: first, from an objective point of view, intentional homicide can be expressed either as a positive form or as a form of negative inaction. (5 points) The intentional homicide in the form of omission is the premise of the perpetrator's specific obligation to prevent the death of the victim. In this case, the defendant Zhao and the victim Yang Department of husband and wife, there is a legal obligation to support each other, the victim Yang because the accused and his mistress adultery was found, and angrily drank poisonous pesticides. The defendant Zhao Yang as a husband, to prevent the death of Yang have specific duty to rescue, but in spite of this obligation, the death of laissez faire to Yang, resulting in the loss of the rescue time, causing Yang poisoning death consequences, which is a kind of negative omission manifested unlawful deprivation of life indirect intent. (10 points) Second, in theory, indirect intention refers to the psychological attitude of knowing that the actions of oneself may endanger the society and allowing the result to happen. It is the unity of the cognitive factors and the will factors. In this case the defendant Zhao in the understanding of knowing that they do not help to have poisoned the wife, she may have died as a result of performance in the will of Yang's death took a laissez faire attitude. Although Zhao than a direct intentional homicide that actively pursue Yang death results, but he as Yang's husband, under the specific circumstances do not prevent the occurrence of death results, with indirect intentional deprivation of life subjective psychology. (10 points) To sum up, the defendant Zhao's behavior has the subjective and objective elements of intentional homicide, and should bear the criminal responsibility for intentional homicide. But after all, this case is not equal to the positive intentional deprivation of life behavior, which belongs to the "lesser" intentional homicide, should be in three to ten years of legal punishment and punishment according to the circumstances of the discretion given a lighter punishment. (5 points) Note: in this topic, if we can combine the difference between the crime of abandonment and intentional homicide, and the theory of impure omission, we should give a proper bonus. Two, a: 1, Party A's behavior does not belong to the discontinuance of crime, because the suspension must be based on their own will act to stop crime, and to effectively prevent the crime, in the crime, not only acts to automatically discontinue crime, also need to persuade people to stop other common crime crime. But in this case the Party A to the causes of crime is not based on their own subjective will, but his father pulled him back, and a party in ourselves under the circumstances of the crime, nor persuade other common crime to stop crime. (5 points) 2, Party A's behavior does not belong to attempted crime, because a stop crime occurred in the crime preparation stage, it has not yet embarked on a crime, although the reason to stop crime is the reason will not happen, but because of the implementation stage in the crime, can not be identified as crime. (3 points) 3, the behavior of a party constitutes a crime accomplished. In the common crime, the implementation of "one accomplished, all accomplished", "partial behavior take full responsibility imputation principle, although a later not involved in the crime, but only in premeditated crime, but according to the conspiracy theory, a behavior is also responsible for a serious injury. Therefore, the action of Fang Mou still constitutes the accomplished offense of the crime of intentional injury. (5 points) 4, the party does not belong to the preparation of the crime, although the party is in the preparatory stage of crime, because of his father's suppression and no further implementation of the crime, seemingly appear in line with the crime preparation. However, because Fang Mou is a joint crime involved in intentional injury, he can not bear the criminal responsibility for the preparation of the crime, but should bear the criminal responsibility for the crime accomplished with other joint offenders. (3 points) Therefore, I agree that the behavior of a certain party constitutes the crime of intentional injury (serious injury), and it is the view of the crime accomplished. But because of a party itself finally did not participate the implementation of crime, in a secondary role in the crime, should be recognized as an accessory, and it belongs to the common crime accomplice from the relationship, should be punished more leniently. (4 points) Note: in this case, in addition to the imputation principle of common crime and finds a behavior constitute a crime, if can say a common crime in the accomplices, according to the principle of punishment of the accomplice, but also with an accomplice relations theory answer, appropriate bonus. Three, answer: in this case, Chen's response to his ignorance of Liu's theft of 1500 yuan to assume criminal responsibility, there are two different views: The first view, although Chen and others have consulted prior to common theft, but the theft of Liu, Chen subjectively did not know, and do not act together, not to deal with 1500 yuan Liu of the theft of criminal responsibility, only to 500 yuan after the responsibility of theft, according to "provisions of the supreme people's Court on Several Issues concerning the specific application of law in the trial of cases of theft of interpretation" about the amount of theft, Chen's behavior does not constitute a crime. The second view, Chen beforehand conspiring with others to theft, although the theft Liu did not know, but Liu in the theft, the room for theft, and afterwards the spoils, shall be deemed to constitute the crime of theft and theft Chen for the amount of 2000 yuan. I agree with the second opinion, that is, Chen should be responsible for the theft of Liu who is not aware of it. Chen and Liu's behavior of joint crime, joint crime refers to an intentional crime committed by two or more people, the establishment of joint crime should be the subject of a crime is more than two people with criminal responsibility, subjective has common intent, objective implementation of joint criminal behavior. The so-called "joint criminal act" refers to the behavior of each actor's behavior is directed to a common crime, and the behavior of each actor's behavior is interrelated and mutually coordinated. (5 points) In this case, Chen and Liu were prior conspiracy, both sides agreed to take advantage of property theft Zhang Zhang do not pay attention, subjective has common intentional theft, according to the forms of crimes, the behavior of the two people at the preparatory stage in crime. Then, Liu entered the back room found Lee's locker key, then use the key to open the cupboard, theft, although at this time Chen working outside, do not know Liu in the back room of the theft, but this does not affect the criminal responsibility for the theft of Liu chen. The act of complicity as a preparatory act of crime is a stage of crime. We should not separate the preparatory act from the perpetrating act, but treat both as an organic whole. So in the first conspiracy but it was not involved in the criminal case, there is a conspiracy and did not execute offenders have the subjective intention of joint crime of joint criminal behavior objectively, and can become the common crime accomplice, is the criminal responsibility and the implementation of the crime of collusion with the responsibility to light. (10 points) The doctrine of liability in accordance with the "whole (whole) responsibility" of certain acts that are commonly used in joint crime, All personnel involved in a joint crime shall bear criminal responsibility for the final consequences of a crime within the scope of a joint crime. When a joint crime committed by a conspiracy and not a doer has been established, the conspiracy and the failure of the doer have obviously committed a crime. In this case, Chen knew Liu has succeeded after the theft and theft in Zhang's belongings, afterwards and Ryu spoils, is actually a continuation of the recognition and behavior of liu. Therefore, Chen's behavior has constituted theft, and the amount of theft of 2000 yuan. (5 points) Note: in answer, if Chen and Liu believes that due to the first theft without collusion, therefore, Chen does not need to assume responsibility for the theft of 1500 yuan for the first time, only second to 500 yuan to take responsibility, but for 1500 of the spoils behavior whether to belong to the criminal law on the crime of stolen goods. Can also be appropriate to score. But anyway, Liu's crime amount is 2000 yuan, not 1500 yuan. Answer: four, the case was a person who commits several crimes to punish the case, how to graft, which has two different views: The first view is that the defendant should be found guilty of intentional injury Wang Mouxin verdict, and then sentenced to the previous sentence combined with the calculation of the total sentence, the decision to implement the penalty. That is, the defendant Wang committed the crime of intentional injury and sentenced to the punishment of the previous sentence (seven years imprisonment and 5000 yuan penalty), calculate the total sentence, and then decided to implement the penalty. The second opinion: should the defendant Wang Mouxin found the crime of intentional injury judgment, and then a decision before the robbery, theft and sentenced to the penalty of combined calculation of the total term of imprisonment punishment. That is, the defendant Wang committed the crime of intentional injury, and sentenced to robbery in the previous sentence of robbery and sentenced to larceny, the total sentence of the sentence, and then decided to implement the penalty. According to textbooks and judicial practice, the first opinion is adopted. The reasons are as follows: 1. According to the sixty-ninth provisions of the criminal law of China, if a person is sentenced to several crimes before the judgment is declared, the maximum term of imprisonment shall be above or below the total sentence, and the term of imprisonment shall be decided as appropriate. In this case, the defendant sentenced to the robbery by the first sentence was guilty of robbery and theft. 2, article seventieth of the criminal law and regulations, the judgment is pronounced later, before the punishment has been completely executed, finding criminals convicted in judgment and other crimes before the verdict, judgment shall be rendered for the newly discovered crime, the judgment before and after the two sentence, according to the provisions of article sixty-ninth, decided to implement the the penalty. In this case, the defendant Wang, as well as the crime of intentional injury, did not have a verdict, that is, this case. (10 points) It should be noted that article seventieth of the criminal law "before and after the two sentence sentence according to the provisions of article sixty-ninth, punishment", "after a judgment sentence" in this case, it refers to the defendant Wang guilty of intentional assault sentenced. The penalty, "before a judgment of the punishments imposed by the principle of graft to understand, should refer to the first sentence in the defendant Wang guilty of robbery and theft crimes results, rather than Wang guilty of robbery, the crime of theft was sentenced to the penalty respectively. The second opinion is that the sentence before the sentence was interpreted as the penalty for several crimes committed by the defendant wang. (10 points) Note: This is the key to understanding how the provisions of article seventieth of the criminal law of the judgment, before the punishment has been completely executed, finding criminals convicted in judgment and other crimes before the verdict, judgment shall be rendered for the newly discovered crime, The punishment imposed on the two judgments before and after the decision shall be decided in accordance with the provisions of the sixty-ninth article of this law." In the "two sentence sentence", before sentenced to punishment is the punishment decided to implement crimes after the index, or to two crimes before a judgment imposed penalty. According to the spirit of the criminal law, the former should be the former. In addition, if you can answer to deduct the term that has already been executed appropriately plus. (after carefully reading the textbook of Zhang Mingkai and inquiring about the practice of judicature, and modifying this answer, I hereby declare that...) Answer: five, this is the key to the three people such as Huang Dezhi "he broke in and a strong desire to make Yan", "whip in coins, but in the horizontal collapse, strong, according to the complex, three," the complex smile into each other's eyes "made" continuous implementation of the unlawful infringement belongs to the criminal law the first paragraph of article twentieth stipulated in the "unlawful infringement", still belongs to the third paragraphs of article twentieth of the criminal law provisions of the "other serious violent crimes endangering personal safety? If you belong to the former, so Deng Yujiao in the defense process resulting in the death of Deng Guida is "significantly more than the limits and causes serious damage to the defense behavior, should be regarded as over defense, if that is the latter, it is justifiable defence, don't need to bear criminal responsibility. Note: in the answer, if you think Deng Yujiao's behavior belongs to excessive defense, you need to further answer Deng Yujiao's behavior constitutes what crime, how should sentencing? Including excessive defense, "Jen is cast blade surrendered to officer" surrender behavior sentencing effect. As for whether Deng Yujiao belongs to the limited capacity of responsibility, there is no explanation in the question. If it is found, it belongs to a "no answer" problem, and points should be deducted. This is a controversial topic, can It stands to reason. proper scoring. The above answer is for reference only. Specific scoring criteria: 1, the content of the answer is accurate? 2, the answer is clear thinking, whether has the logic (from facts to specification, from objective to subjective, from form to essence, from the law to have the responsibility, from general to individual), whether can have the facts and norms of criminal law cases are combined to answer. 3, handwriting is neat, delicate and pretty, test paper is clean?
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