23

2018

-

08

(Next issue) Regulations on criminal organization cases and experience in handling cases with four characteristics

In the previous issue, I introduced to you the current forms of anti gang and anti evil measures in China, the key crackdowns, relevant regulations, and the relationship between them, as well as the organizational and economic characteristics of underworld crimes. In this issue, our theme is the behavioral characteristics and illegal control characteristics (also known as harmful characteristics) of organized crime; And share some of the grading experiences of this type of case for reference by colleagues when handling cases.


In the previous issue, I introduced to you the current forms of anti gang and anti evil measures in China, the key crackdowns, relevant regulations, and the relationship between them, as well as the organizational and economic characteristics of underworld crimes. In this issue, our theme is the behavioral characteristics and illegal control characteristics (also known as harmful characteristics) of organized crime; And share some of the grading experiences of this type of case for reference by colleagues when handling cases.

 

(3) The behavioral characteristics of underworld crimes

Organize multiple illegal and criminal activities through violence, threats, or other means, engage in wrongdoing, oppress, and harm the masses. (Criminal Law Provisions)

1. It is no longer emphasized that "generally, there should be a part (illegal and criminal activities) that can clearly reflect the basic characteristics of violence or the threat of violence"; (After the 2015 minutes were specified, it was deleted from the 2018 guidance)

2. Clarified the definition and scope of "other means" (Article 9 of the 2018 Guidance);

3. Six specific manifestations of "organized illegal and criminal activities" have been clarified (Article 10 of the 2018 Guiding Opinions).

 

Precautions:

1. The implementation of violence or threat of violence is still the basic behavior characteristic of criminal organization, so "other means" are based on the realistic possibility of violence and threat, and are enough to make others fear and panic.

2. The type of illegal and criminal activities is single and the frequency is small, and criminal organization cannot be identified; However, repeated implementation of the same type of illegal and criminal activities can constitute a criminal organization;

3. Those who have only carried out illegal activities but no criminal activities cannot be identified as criminal organization. (Summary of 2009)

 

 Key understanding:

1. Soft Violence: Changes in Guiding Opinions from 2009 Minutes, 2015 Minutes to 2018

Summary of 2009:Violent, coercive, and organized are the main characteristics, but sometimes "other means" are also used,Other means include nonviolent means

2015 minutes:In the illegal and criminal activities carried out by criminal organization,Generally, there should be a portion (illegal and criminal activities) that can clearly reflect the basic characteristics of violence or the threat of violence. Otherwise, special caution should be exercised when determining the nature;

2018 Guidance:Including non violent illegal and criminal activities,That is soft violence.

Implementing soft violence refers to the act of disturbing or disrupting normal economic order and social life order through so-called "negotiation", "negotiation", "mediation", disturbance, commotion, gathering crowds, etc., based on violence and threats, using organizational power, influence, and criminal capacity to form psychological coercion or deterrence towards others.

Summary:Return to the 2009 minutes for more accurate expression.

 

2. Specific situations of six behavioral characteristics

If one of the following circumstances is met, it shall be identified as an illegal and criminal activity carried out by a criminal organization:

(1) Competing for the organization's sphere of influence, cracking down on competitors, forming a dominant position, seeking economic benefits, establishing illegal authority, expanding illegal influence, seeking illegal protection, and enhancing criminal capabilities;

(2) Implemented in accordance with the disciplinary regulations and organizational practices of the organization;

(3) Organizers and leaders directly organize, plan, direct, and participate in the implementation;

(4) Implemented by organizational members in the name of the organization and recognized or tacitly approved by the organizers and leaders;

(5) Multiple members of the organization jointly carry out activities to show off their strength, interfere in disputes, retaliate against others, commit crimes on behalf of others, or illegally collect wealth, and obtain recognition or tacit consent from the organizers and leaders;

(6) Other activities that should be identified as being implemented by criminal organization.

 

3. Differentiation between organizational and individual illegal crimes (2015 minutes, 2018 guidance)

Organized Crime:Reflect organizational will, name, and interests, including the six specific situations mentioned above.

Situations handled as personal illegal and criminal activities:It is not related to the maintenance and expansion of organizational power, strength, influence, or economic foundation, nor is it implemented according to organizational practices, discipline, or activity regulations. It should be treated as an individual's illegal and criminal activity.

Attention:If the organizer or leader is aware that members of the organization have repeatedly engaged in illegal and criminal activities with similar causes and nature, but have not explicitly prohibited such activities, if such activities have played a certain role in expanding the influence of the organization,It can be regarded as illegal and criminal activities carried out in accordance with organizational practices.

 

(4) The illegal control characteristics of underworld crimes:

By carrying out illegal and criminal activities, or using the shelter or indulgence of state officials to dominate a party, illegal control or significant influence is formed in a certain area or industry, seriously disrupting the economic and social order.(Criminal Law Provisions)

Attention:

1. "A certain area" no longer emphasizes "it should have a certain spatial range and carry a certain social function"; However, it should still be noted that the spatial range is too small, such as a hotel or club not belonging to a "certain area";

2. There are no specific amount standards for the eight situations, and the judicial authorities will conduct a comprehensive analysis and judgment based on the specific circumstances of the case and the degree of harm caused by organized crime. (The previous standard set by Guangdong was for illegal gains of 500000 yuan or economic losses of 1 million yuan.)

3. Gang-related organizations refer to unspecified targets as the target of infringement, otherwise they cannot be considered as gang-related.

 

Key understanding:

1. Understanding of "a certain area"

The 2015 minutes clearly state that "a certain area" should have a certain spatial range and carry a certain social function. This includes areas where a certain number of natural persons reside and live together, such as towns, streets, larger villages, etc., as well as areas that carry certain production, business, or social public service functions, such as mines, construction sites, markets, stations, and docks. This should be comprehensively evaluated based on factors such as population size, flow rate, and economic scale within a certain geographical range.If the control and influence of the criminal organization involved only exists in a limited space such as a hotel or entertainment club, or in other areas with small population, flow, and economic scale, it cannot generally be considered as control and influence over a "certain area".

 

2. Understanding of "certain industries"

Summary of 2009: "Certain industries" include both legitimate and illegal industries. These industries generally involve one or more market links such as production, circulation, exchange, and consumption.

The 2015 minutes specify that "certain industries" refer to similar production and business activities that exist within a certain region. Criminal organization that have formed illegal charges or significant influence on illegal industries such as pornography, gambling and drugs through many organized illegal and criminal activities also meet the requirements of illegal control characteristics.

 

3. Identification of 8 Cases of Illegal Control

pay attention toThe changes between the 2015 minutes and the 2018 guidance shall not be determined by the relevant amount. If there are any changes, the 2018 guidance shall prevail.

Eight scenarios are:

(1) Those who form psychological coercion or deterrence against multiple people living in a certain area or engaged in production or business within a certain industry, causing damage to their legitimate interests and dare not report or accuse through legitimate channels;

(2) Forming a monopoly on the production and operation of a certain industry, or having an important impact on economic activities such as entry, operation, and competition involving a certain industry;

("Forming a monopoly" refers to the ability to manipulate, control, and decide on economic activities related to a certain industry, such as entry, exit, operation, and competition)

(3) Intervening in civil disputes or economic disputes, causing serious impact in relevant regions or industries;

(4) Disturbing or disrupting the normal production, management, and daily life of others, and causing serious impact in relevant areas or industries.

(5) Disturbing or disrupting the normal production, operation, and work order of companies, enterprises, public institutions, and other social organizations, causing serious impact in relevant regions and industries, or causing them to be unable to produce, operate, and work normally;

(6) Repeatedly interfering with or disrupting the work order of state organs, industry management departments, village committees, neighborhood committees, and other grassroots mass autonomous organizations, or causing the functions of the aforementioned units and organizations to be unable to function normally;

(Understanding of means: This includes situations where individuals who have repeatedly been sheltered or condoned by government officials through methods such as solicitation, bribery, and threats, or have repeatedly engaged in attacks or retaliations against staff members of the aforementioned units or organizations who perform their duties normally.)

(7) Utilizing the power and influence of an organization to gain political status for its members, or holding certain positions in party and government organs or grassroots mass autonomous organizations.

("Obtaining political status" refers to being elected as a representative of the National People's Congress and a member of the Chinese People's Political Consultative Conference at all levels. "Holding a certain position" refers to holding positions with organizational, leadership, and supervisory powers in party and government organs at all levels, their functional departments, and grassroots mass autonomous organizations.).

(8) Other situations.

 

5、 How to do grading work with multiple materials

In 2015, we handled a case of crime committed by a criminal organization. There were 32 defendants in the case, and my client was the second defendant, who was suspected of organizing and leading crimes committed by criminal organization and opening casinos. There were many specific criminal facts involved in the accusation. Through our team's efforts, the first trial verdict recognized our defense opinions and removed the label of our client's involvement in the underworld, We have only found our client guilty of opening a casino. In handling this case, there is a realization that there are a lot of materials, and they are also miscellaneous. The materials from many years ago are also included in the file materials, with a total of over 180 materials. How can we effectively grade the papers?

Our insights are:

(1) Firstly, print out the files smoothly, bind each book into a volume, and write the number of the evidence volume for quick search;

(2) Sort out the prosecution opinions, organize the content related to the client, and print it out for the team lawyer to fully familiarize themselves;

(3) Take a preliminary look at the materials and create a general catalog for each volume, indicating which volume is irrelevant, so there is no need to look closely in the next step;

(4) Taking a closer look at the materials, making excerpts from the materials involving one's own parties and the disputed parts. In our case, due to the involvement of crime and non crime, it took a lot of time to make excerpts;

(5) Sort out the indictment, organize the content related to the client, and print it out for the team lawyer to fully familiarize themselves;

(6) Based on the facts charged in the indictment, the relevant content is directly extracted from the excerpted transcripts and a comparative table is created to lay the foundation for future questioning and cross-examination.