What Are Qualitative Instruments?

Criminal tools are explained in Xinhua Dictionary and Modern Chinese Dictionary: "Work" refers to work, engineering, production labor, "equipment" refers to appliances, utensils, utensils, and "tool" refers generally to appliances used in labor production. A metaphor is used to achieve a purpose. China's criminal law and related judicial interpretations do not specifically define "criminal tools". According to the literal meaning, combined with judicial practice and the original intention of legislation, we believe that "criminal tools" can be understood as "property or equipment for criminals to commit crimes." . In judicial practice, our common criminal tools include pliers and screwdrivers for thieves, knives and daggers for murderers, and so on.

Crime tools

Chinese name: Crime tools
Foreign name: guilty tools
Meaning: All equipment used in criminal activities

Common criminal tools: Knives, daggers, sticks, etc.
Provenance: Xinhua Dictionary, Modern Chinese Dictionary
Hi-tech tools

The police caught an offender.

Criminal: "I have no sin. Because I am only a tool used by others, and the tool is not guilty. For example, if a person kills a person with a knife, the sin is in the person but not the sword."

Police: "Are you saying that you are being used by someone?"

Criminal: "Yes!"

Police: "Okay, please come with me!"

Criminal: "Why? I have no sin!"

Police: "Please don't move. According to the law,

Crimes committed using printing and copying equipment

The crimes we deal with are roughly as follows:

The first is to commit crimes using copies of identity cards. For example, in January 2006, a city public security bureau detected a loan fraud. During the period of serving as the director of a credit union, the suspect Wu violated the loan regulations by using a copy of another person's ID card. Four other people took out more than 300 personal small-scale farmer loans, totaling more than 20 million yuan. The investigation found that the real holder of the ID did not know that his ID had been used by others.

The second is to use forged business licenses, government approvals and other copies to commit crimes. In early 2003, the defendant Hu and others falsely reported a registered capital of 15 million yuan.

Negligent crime

The law stipulates that criminal tools should be confiscated, but there is no limitation that the criminal tools must be intentional crimes, nor is it forbidden to confiscate the criminal tools in the crime of negligence, so should the vehicle in the crime of negligence, such as traffic accidents, also be confiscated? We believe that the original intention of confiscation of criminal tools is to eliminate the possibility of recidivism of the offender and to play a special preventive role. The personal danger of negligent crimes is relatively small and should be different from intentional crimes. Therefore, the car in the crime of traffic accidents is of course It cannot be confiscated as a criminal instrument.

Corruption and bribery

This type of crime is often the illegal possession of public property by means of embezzlement, theft, or deception. The criminal carrier is usually a pen, ledger, or electronic account book.

Malfeasance tort

Intentional crimes in this type of crime are manifested as positive acts and no criminal tools; negligent crimes are manifested as inactions and (substantially unnecessary) use of criminal instruments.

Crimes committed using terrorist information and terrorist incidents

On January 8, 2006, the State Council issued

Chinese law does not provide a specific definition of criminal instruments, but only stipulates the procedures for seizure, management, confiscation, and use as evidence in the handling of cases by the judicial organs, such as Article 64 of the Criminal Law and Article 198 of the Criminal Procedure Law Etc. The National People's Congress and the Central Judiciary have also made regulations on the seizure, seizure, and freezing of the money and materials involved in the case, and specifically stipulated that "no unit or individual may misappropriate or dispose of it in private." This shows that the discussion of "criminal tools" has certain practical value.

(1) Through a realistic analysis of withholding and supervision of criminal tools in judicial practice, criticize the judicial actions of realist interests, and promote law enforcement and judicial justice

Scope of criminal instruments that should be confiscated

What kind of criminal tools should be confiscated? CCTV "Today's Statement" once reported a case where Zhang and Zhao were in conflict. Zhang collected more than ten relatives and friends and took a passenger bus from Sun to Zhao's house. He was injured and Zhao died. . Afterwards, the court held that Sun's car was a crime and should be confiscated according to law. There is another case: A uses a computer to post insulting and slanderous information about B, and B files a private lawsuit to the court. The court ruled that A constituted an insult and sentenced the confiscation of a "criminal tool" computer. In both cases, cars and computers were used to commit crimes, but they were not specifically designed to commit crimes. Passenger cars are mainly used for passenger transportation, and computers are usually used for work and entertainment. They were confiscated because they were used as crimes for a while and became "criminal tools". We consider it inappropriate. If this logic is followed, the vehicle that caused the traffic accident should also be a criminal tool, and the house used to illegally detain others is also a criminal tool. Obviously this is ridiculous.

Article 64 of China's criminal law states: "All the property obtained by criminals in violation of the law shall be recovered or ordered to be reimbursed ... contraband and personal property used for crime shall be confiscated ...". We believe that "crime tools" should be understood in a narrow sense, that is, "items dedicated to crime or mainly used in criminal activities". It contains three meanings. One is that in terms of physical properties, a crime tool is a "thing, device. Secondly, in terms of use, it is "used by criminals to commit crimes"; thirdly, in terms of efficacy, it "provides convenient crimes and creates conditions for achieving goals" for criminals to commit crimes. For example, equipment and materials used to make methamphetamine, production lines used to make pirated optical discs, murder weapons purchased for crime, etc., cars for drug transportation, etc. In other words, these items are dedicated to criminal activities and not used for other purposes, or are mainly used for criminal activities and occasionally for other uses.

Subject of confiscation

Who has the final decision on the confiscation of criminal instruments?

First, criminal instruments should not be confiscated by the investigating authorities. First, the confiscation of criminal instruments by investigating agencies violates the principle of criminal procedure. Article 12 of the Criminal Procedure Law states: "No one can be convicted of any person without a judgment by a people's court according to law." Only after the court finds that the defendant is guilty, the equipment used for the crime attached to the offender can be characterized as a criminal instrument and confiscated. The investigating authority has no right to determine whether the criminal suspect is guilty, and whether the equipment used in the crime is a criminal tool in the sense of criminal law has not been determined. Secondly, the confiscation of criminal tools by investigating agencies has brought inconvenience to the lawsuit. Criminal tools are used as evidence, and evidence and cross-examination must be conducted in court. If the investigative department confiscates the criminal tools during the investigation stage, the public prosecutor can only use the photos of the criminal tools to provide evidence and cross-examination, which will not serve the purpose of the trial and will not achieve the purpose of education. At that time, the public prosecutor could not show evidence at a glance in court, so why convince the presiding judge, jurors, and the audience to take it orally? In addition, the confiscation of criminal tools by investigative agencies can easily lead to judicial corruption. The investigative organs confiscated the instruments used by criminal suspects during the investigation stage, often not based on the actual case, but based on the interests of their own departments and units. They are more random, and even a few investigative departments have appeared. Or investigating personnel's illegal and disciplinary violations.

Second, criminal instruments should not be confiscated by the procuratorate. The nature of the procuratorial organ determines that it has only the power to determine "temporary detention" and no final decision to confiscate, and at the same time has the obligation to supervise the withholding and supervision of criminal instruments. Of course, the confiscation of criminal tools by procuratorates can also easily lead to judicial corruption.

Third, the crime tools should be confiscated after the court has found them. First of all, whether it is a crime tool can only be judged by the people's court, other organs do not have the right to determine the crime tool. Secondly, the decision to confiscate the criminal instrument made by the people's court judgment is mandatory and authoritative by the state, and made by the people's court and stated in the judgment, it also protects the defendant convicted in the first instance against his original property. The right to be informed of the processing, and at the same time, an additional opportunity for appeal on the final disposal of the property can be made to better reflect the fairness and transparency of the law. Third, the decision to confiscate crime tools made by the people's courts can enable law enforcement agencies to better restrict each other, thereby protecting the lawful rights and interests of criminals to the maximum, and reducing the possibility of corruption in the treatment of crime tools.

Procedures for confiscation of criminal tools

In practice, for criminal tools, the case-handling department usually handles the relevant detention procedures in the corresponding litigation procedures. At the final judgment, the court makes a decision on the confiscation of the criminal tools and states them in the judgment.

Attention should be paid to the withholding and supervision of criminal instruments.

First, we must not misuse or abuse "rights of confiscation" because of financial constraints or the need to complete confiscation tasks, let alone confiscate regardless of the parties' legitimate rights and interests. In recent years, due to the gaps in funding and material conditions of the judicial organs to varying degrees, financial resources and material security cannot fully meet the needs of criminal work. Police officers must complete a certain amount of fines and confiscated tasks each year to make up for the lack of funds for handling cases. In practice, case-handling departments are often driven by interests, and those who have greater value or can be used for recovery, even at the expense of the legitimate rights and interests of the defendant, including the victim.

Second, the procedures for withholding and supervision must be gradually standardized. The judicial interpretation of "seizure and freezing" issued by the central legislature and the judicial organs should insist that the contraband should be confiscated. This is a compulsory and not controversial provision. Tools such as control knives, drugs, guns, etc. have the dual attributes of stolen goods and criminal tools. If they are not handled well, they can easily flow into society. The second is that administrative punishment cannot replace criminal punishment, but rapid administrative punishment can be carried out first. After the direct enforcement is over, the items in the case will be immediately transferred to the next criminal procedure. Third, the property of the criminal suspects detained and frozen and their interest shall be transferred with the case. If it is unsuitable, the list, photos, or other supporting documents shall be transferred with the case for the people's court to make. After the verdict comes into effect, the seized public security organ shall, in accordance with the notice of the people s court, turn in the treasury or return the victim, and send an execution slip to the people s court.

(2) Through the analysis of the constituent elements of the criminal tools, explore the issues that should be paid attention to when using the crime tools as evidence

1. Characteristics of criminal tools. The crime tool should meet the three basic characteristics of the broad "tool", that is, it must have its external characteristics (specifications, sizes, length, size, color, characteristics, price, shelf life, barcode, manufacturer, contact phone, address, instructions for use , Precautions, etc.), functional uses (judicial appraisal, etc.) and special instructions (number of seizures, time, place, witnesses, holders, etc.).

2. Understanding of criminal tools. It should be defined in intentional crime, and the "crime tool" should be understood in a narrow sense, that is, "item dedicated to crime or mainly used in criminal activities".

3. Matters that should be paid attention to during the circulation of criminal tools in the litigation process. As a kind of indirect evidence, criminal instruments should be paid attention to during the circulation of the lawsuit: first, the transfer procedures are complete; second, they are properly kept and must not be embezzled or misappropriated.

4. The basic attributes and elements of evidence must be closely linked to the criminal tools. The first is to closely follow the "three natures" requirements of the evidence, especially depending on whether it is collected and retrieved in accordance with legal procedures; at the same time, it is necessary to check whether the extraction is timely and whether there is other "reinforcing" evidence to consolidate the evidence; Whether the criminal tools are properly handled and preserved, and whether the procedures and quality of the transcripts have played a role in consolidating the "three sex" requirements of evidence. The second is to check whether the appraisal documents such as the appraisal, inspection report and inspection opinion conform to the legal format; to check the legality of the appraisal procedure and whether to inform it; to check whether the content of the appraisal is verified by other materials and whether the appraisal is objective. The third is to examine the role of criminal tools in evidence to see if a chain of evidence is formed; to examine whether the "unknown" crime tool has affected the conviction; and to check whether there are "low-level" errors, as a criminal tool does two things. Seizure procedures, etc.

(3) Examining the actual trial concept through the study of the relationship between the unknown whereabouts of criminal instruments and the ease of suspected crimes

As a main piece of evidence, the crime tool plays a pivotal role in the judge's decision. In trial practice, due to the unknown whereabouts of the crime tools, the judge may have three methods: "suspected crimes are absent," "suspected crimes are present," and "suspected crimes are light." In our opinion, the first two approaches are too absolute, and the third approach (which can be divided into the "leaving room" law, such as the death sentence or fifteen year imprisonment, and the "suspicion of suspending" law, hangs for a long time. There are two ways to drag indefinitely) and there is a suspicion of "and mud".

Criminal cases involve the deprivation of personal freedom and even human life. Therefore, the judiciary must not be a little vague in macro and micro aspects such as investigation, review and arrest, review and prosecution, trial, enforcement and determination of facts, and application of laws. Many years ago, the judiciary often looked at the problem with a "presumption of guilt", resulting in the judicial work losing its mass foundation. At present, under the circumstances that the "presumption of innocence" and "suspected crimes are absent" have been implemented for many years, wrong cases continue to occur. We believe that the main reason for the occurrence of the wrong case is the unscientific working mechanism of the current criminal procedure. Article 7 of China's Criminal Procedure Law stipulates that the three organs of the Public Prosecution Law "... should divide responsibilities, cooperate with each other, and restrict each other ...", but in practice there is more cooperation and insufficient constraints. The specific manifestation is that the procuratorate and the court knew that the evidence of the case was flawed when they examined and tried specific cases, but did not raise doubts and eliminate contradictions according to law. Instead, the three agencies sat together to discuss "how to deal with" and help the previous agencies to "pass the border." This kind of unique working mechanism may lead to the wrong case in fact, and the Hubei judicial authority's handling of the case of She Xianglin is a proof. We all know that the implementation of the "negative crimes" law enforcement thinking can minimize the number of miscarriages. However, in judicial practice, judicial personnel often adopt a "lighter" approach, despite the revised Criminal Procedure Law. The principle of "no doubt of guilt" has not been fully implemented, and the "presumption of innocence" and certain litigation principles and procedures related to it have not yet been acknowledged. This shows that the principle of "never suspected crimes" has not penetrated deep into the hearts of judicial personnel. To fully realize the presumption of innocence, this concept should be established at the stage of investigation.

Second, some judges have denied the law enforcement concept of "never suspected crimes." In trial practice, some judges held that the plausible notions of "never suspected crimes or lighter suspected crimes" should not be promoted. "Suspicious suspicion" or "suspicious suspicion" can be argued in the legal field, but there should be no place in the practice of trials, especially in the judge's concept. After all, jurisprudence is jurisprudence, not law, and even the view that the legal profession cannot unite cannot be applied in the field of trial practice. Therefore, in the face of "insufficient evidence", some judges artificially create "doubts" due to their low quality or subjective factors, and some judges shield criminals under the banner of "never suspected or lightly suspected". This is Blasphemy of the law, even crime. Judges who deny the law of "suspected crimes" will inevitably cause wrong cases in law enforcement. Of course, some judges insisted on reinvestigating and obtaining evidence in the face of insufficient evidence due to procedural law enforcement; in the face of demanding evidence that could not be retrieved due to objective factors, which ultimately resulted in the fact that the evidence could not be conclusive, they insisted on "never suspected."

Third, another reason for the wrong case is that the blind pursuit of the guiding ideology of "a high degree of unification of political effects, legal effects, and social effects" is making trouble. Especially in the investigative process, social stability must be the first priority when it comes to social effects. When murders occur, the killers must be found in time. Therefore, it is virtually controlled by social public opinion, and the working method is easily deformed. In practice, the methods of cracking bids and cracking cases within a time limit appear. Public security organs are often pressured by their superiors to handle cases, and they are often warned that the fatal case will be broken and that there are indicators for solving the case. This resulted in the investigation as the center, the three organs of the Public Prosecution Law, and the courts finally confirmed the facts of the case.

Fourth, the principle of legal crimes has gone to extremes in both the legal and judicial circles. We believe that the principle of legality of crime is the highest principle and the bottom line that must be observed in all criminal proceedings. But there are two extremes in the legal and judicial circles: one is to interpret the statutory crimes in an absolute way and extend this principle to be a suspicion; the other is to overemphasize the active application of the law, which has largely neglected the statutory crimes. Situational tendency. These cognitions are reflected in judicial practice as being either fault-finding, indulging crimes, or rather indulging. We think these are all wrong. How to correctly interpret the statutory principle of crimes and correctly grasp the principle of lightness of suspected crimes is of great importance to fully and effectively exert the criminal law to combat crime, protect the people, ensure the stability of social order, maintain social fairness and justice, and promote social justice. Meaning.

The British Bar Association has a saying: "When you are defending, never say whether your client is guilty or innocent. It can only be said that from the current evidence, he cannot be proved guilty or innocent." In judicial practice, Regarding the question of "suspected crimes", we believe that we must put an end to the two extremes and adhere to the "two basic principles" with clear basic facts and solid basic evidence, which can avoid the indulgence of crimes and the occurrence of wrongful cases.

Identification of criminal tools in credit card fraud

According to Article 196 of the Criminal Law, the crime of credit card fraud is an economic crime that uses a credit card, that is, a fraudulent or invalid credit card or a malicious overdraft, to use a credit card. It is generally believed that credit cards are a criminal instrument in this crime, not a criminal object. However, there have always been two very different opinions on the scope of the "credit card" itself. One opinion is that the objective aspect of the crime of credit card fraud includes malicious overdrafts from the beginning. Therefore, the setting of this regulatory focus is based on the premise that credit cards have overdraft functions. Debit cards without overdraft functions do not belong to the scope of credit cards. ; For the use of counterfeit, obsolete, or fraudulent use of another person's debit card to defraud a large amount of property, the relevant fraud can be convicted and punished, and will not lead to the indulgence of using a debit card to commit a crime. Another view is that according to the "Credit Card Business Management Measures" issued by the People's Bank of China in 1996, credit cards include debit and credit cards. Therefore, when the Criminal Law was amended in 1997, the credit card originally intended in the legislation was a broad credit card. It is today's bank card. The reason for the original intention of the criminal law legislation cannot be changed due to changes in administrative regulations. Second, the difference between a credit card and a debit card is only whether it can be overdrawn. Essentially different. The actual differences between the two viewpoints are: whether to admit the meaning of "credit card" in the crime of credit card fraud in criminal law needs to change as the meaning of "credit card" in the actual business work of the bank changes. From the perspective of legal hermeneutics, the normative object of legal norms is the actual behavior of people. The stability of the legal order is not manifested in the eternal meaning of the provisions or the original intention of the legislator. On the contrary, the core connotation and semantics of the legal concept Extension should be determined by changes in life practice. As far as criminal justice is concerned, qualitative analysis according to the second viewpoint would obviously violate the legal principle of criminal punishment. Criminal law is the basic principle of modern criminal law, and its ideological foundation is democracy and respect for human rights. Among them, respect for human rights has the same meaning as giving citizens the possibility of prediction. The criterion for judging whether the prediction possibility of a national is violated is mainly judged by the acceptance level of the general public: when an interpretation conclusion can be accepted by the general public, it means that the conclusion does not exceed the predictability of the national; This conclusion is startled, which means that the conclusion is contrary to the legal principle of criminal punishment. According to the actual work of the current banking business and the general understanding of this, the so-called credit card, as the name suggests, its essential function is a short-term financial lending tool that is directly combined with credit. In other words, the existence of an overdraft function is the fundamental difference between a credit card and a debit card. It is also one of the signs that the crime of credit card fraud is different from the general crime of fraud. It should be the core purpose of special regulation in criminal law. However, the National People s Congress s Standing Committee s interpretation of the provisions of the Criminal Law regarding credit card regulations states that the credit card stipulated in the Criminal Law refers to consumer payment, credit loans, transfer settlement, and cash deposits issued by commercial banks or other financial institutions Electronic payment card with full or partial functions. According to this regulation, credit cards in our criminal law continue to use the old understanding, that is, including debit cards. We consider this provision to be debatable, which not only violates the basic ideas contained in the above-mentioned statutes of criminal punishment, but also does not conform to the basic international credit card business practices. Of course, some people may think that with the trend of diversified functions of bank financial voucher business, some credit cards not only have overdraft functions, but also have functions such as consumer payment, transfer settlement, and cash deposit and withdrawal. If the perpetrators only use credit cards for non-overdraft fraud activities (excluding use on ATMs), can they be regarded as credit card fraud? The answer is yes. This is because the scope of this crime should be a credit card with an overdraft function, but it does not mean that this crime can only be regulated separately for its overdraft function. According to Article 196 of the Criminal Law, malicious overdraft is only one of the manifestations of this crime, which shows that it is technically feasible to uniformly regulate financial instruments with multiple functions. As for the debit card, it is essentially a kind of financial voucher. If a debit card is used for fraudulent activities, it should be punished with the crime of financial voucher fraud, rather than constituting credit card fraud.

Article 64 of the Criminal Law: All property obtained by criminals in violation of the law shall be recovered or ordered to be reimbursed; the legal property of the victim shall be returned in a timely manner; the contraband and the personal property used for the crime shall be confiscated. The confiscated property and fines shall all be turned over to the state treasury, and they shall not be misappropriated or disposed of by themselves.

Article 198 of the Criminal Procedure Law: Public security organs, people's procuratorates, and people's courts shall properly keep the property of the criminal suspects and defendants and their income and keep them for verification. No unit or individual may misappropriate or handle it by itself. The legal property of the victims shall be returned in a timely manner. Prohibited articles or articles that are not suitable for long-term storage should be handled in accordance with relevant state regulations.

The physical object used as evidence shall be transferred with the case, and if it is not suitable, the list, photos or other supporting documents shall be transferred with the case.

After the judgment made by the people's court takes effect, the seized and frozen stolen goods and their yields will be confiscated and returned to the treasury, except for the cases where the victims are returned according to law.

If a judicial staff member embezzles, misappropriates, or disposes of the stolen and frozen stolen goods and their proceeds without authorization, he shall be investigated for criminal responsibility in accordance with the law; if it does not constitute a crime, he shall be punished.

What Are Qualitative Instruments?

Crime tools

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