If you were asked to file a lawsuit, how come you were not found guilty?

Chapter 254 Perfect legislation may not be useful

Ren Zhen stopped talking after he said this. For these students who have not yet left school, these will take time to digest.

"Lawyer Ren just said that the first paragraph of the crime of bribing women and children should not be looked at one-sidedly, but all the provisions should be considered comprehensively.

This view certainly has merit, but I think it also has shortcomings. "

While the students were still thinking, Bai Jiasong picked up the microphone again:

“The biggest shortcoming of this view is that it does not take into account the situation of abducted children, so this explanation is not enough to convince me.

If according to lawyer Ren's view, the maximum sentence for simply bribing children is three years, then in reality, the children who are bribed will most likely not be illegally detained, abused and other accompanying crimes.

Of course, I am just saying that this probability is smaller than that of women who are bribed.

But no matter how kind the briber is to the child being bribed, or how carefully and attentively he takes care of it, it cannot change the fact that it causes harm to the victim's family.

If the maximum statutory penalty for this crime is maintained at three years, then according to the prosecution effectiveness stipulated in our criminal law, the prosecution effectiveness for this crime is only five years. That is to say, counting from the day the briber buys back the child, no prosecution will be possible after five years. The criminal behavior of the briber has been prosecuted. I think this is definitely not reasonable enough.

From this perspective, even if all the provisions of the crime of bribing women and children are taken into account, the statutory penalty for this crime is still too light. "

Is the prosecution effective?

Even though Bai Jiasong was refuting his own point of view, Ren Zhen had to admit that his statement was indeed very reasonable.

"I have always advocated increasing the penalties for the crime of bribing women and children, starting from the basic theory of criminal law, mainly based on the theory of jointly opposed offenders. As I just said, the sentences for most jointly opposed offenders are basically equivalent, but when it comes to The crime of abducting women and children and the crime of buying women and children have become disparate.

Earlier we mentioned that some one-sided crimes only punish one party. The legislation of one-sided crimes takes into account one situation, which is the issue of self-harm.

For example, the act of voluntarily purchasing reading materials to read is itself an illegal act rather than a criminal act, because the purchaser disposes of finances completely according to his or her own will.

In the same way, selling money is not a crime, but selling money by an organization is a crime. If we look for the common denominator of the crimes of organizing selling the galaxy and selling reading materials, we will find that both crimes exploit and exploit others' self-destructive behavior, so at this time It is reasonable to apply criminal law to regulate them.

However, in terms of jointly committed crimes, this cannot be summarized using the self-harm theory. Even if someone voluntarily sells himself, whether he should be punished has been a matter of debate since ancient times.

Therefore, I insist that as a group of common criminals, such an imbalance in punishment should not occur under any circumstances. "

Bai Jiasong explained again, but the faces of the students in the audience seemed more confused.

This deeper theoretical analysis is still a bit too obscure for students who have not specifically studied this crime.

“The effectiveness of prosecution and the theory of common offenders mentioned by Professor Bai are indeed worthy of our consideration. Perhaps legislators can also consider separately criminalizing the bribery of women and children.

I will not expand on these two aspects. I believe Professor Bai has explained it clearly. However, from a preventive perspective, I think it is reasonable not to increase the penalties for the crime of bribing women and children for the time being. "

When Ren Zhen saw Chen Guangming secretly looking at him, he knew it was his turn:

“Actually, it can be summed up in one sentence: criminal law and punishment are not that powerful.

First of all, if the penalties for the crime of bribing women and children are increased, the severe punishment will be advanced to the bribery stage. This is actually suspected of being one-size-fits-all.

As I just said, even if there are fewer, there do exist good-faith bribers. He also completed a transaction, but did not subsequently commit any serious crimes such as rape or illegal detention, and only committed a relatively light sentencing range. , it is possible for him to have his crime reduced to the point of exemption from punishment.

If we increase this from less than three years to three to seven years, seven to ten years, or even more than ten years, then for these good-faith purchasers, according to the current laws of our country, they will definitely be punished by law. Think this is unreasonable.

Secondly, there is a subtext in this view of increasing the statutory penalty for the crime of bribing women and children, that is, it is believed that increasing the penalty can act as a deterrent to the behavior of bribing women and children, but in fact it does not.

'The heavier the punishment, the more afraid criminals will be. It is best to have the death penalty for all crimes, so that no one will dare to commit a crime.' This is an idea that many ordinary people have in my many years of studying law, but as a Lawyers, do you think this view is reasonable? "

Now not only the students in the audience, but also Bai Jiasong, who was sitting not far from Ren Zhen, seemed thoughtful.

“This idea of ​​killing chickens to scare monkeys coincides with the idea of ​​severe punishment and severe laws thousands of years ago. But if the severe punishment doctrine was really effective, I think crimes such as murder, robbery, and rape would no longer exist.

The deterrent effect of criminal law certainly exists, but it is undeniable that different individuals and different types of crimes have different perceptions and levels of fear of punishment.

Because when a criminal decides whether to commit a crime, he usually makes a weighing decision. He will compare the immediate interests with the punishment he thinks he may face. If the immediate interests are large enough, or the probability of being punished is sufficient, For a small amount of time, the severity of the punishment stipulated in the criminal law is actually not important to the criminal.

Take the crime of abducting women and children, for example. The most serious crime is the death penalty. So why haven’t human traffickers completely disappeared after so many years?

It's simple, because the benefits are big enough.

So when it comes to the crime of buying women and children, for people who need money to buy marriages, the benefits of buying a wife and having children are something that some people in poor mountainous areas have to fight for even if they are beheaded. So at this time, the punishment Whether it is three years, ten years, or even the death penalty, it does not make much difference to these criminals. "

"It's really difficult to deal with the phenomenon of good-faith purchases."

Although Ren Zhen and Bai Jiasong had completely different views, their discussions never meant to be tit-for-tat. They were just discussing issues. This kind of discussion made both parties feel comfortable. Bai Jiasong dragged his chin and fell into deep thought: "Such a phenomenon does exist, so we have always said that law is the basis for criminalization and ethics is the basis for criminalization.

If a behavior is encouraged by morality, it is naturally not a crime. For such behavior, I think that in practice, the judge can completely exempt it from criminal prosecution through the proviso clause in the criminal law.

As for the fact that this clause is rarely used in judicial practice, this is a problem of mechanical justice and is not something that should be considered in legislation. "

"I may not fully agree with your point of view."

Ren Zhen shook his head:

"No matter how perfect the legislation is, if it cannot be implemented in judicial practice, can we just use mechanical justice to get rid of the matter? Obviously not.

Before this lecture, I collected some judgments and finally came to a conclusion: the judgment that bribing abducted women and children is punished with the crime of rape, and that bribing abducted women and children is punished with the crime of illegal detention does exist, but The proportion is very small. Most of the cases are only convicted of the crime of bribery of women and children, and most of the punishments are about one year.

In fact, at this time I started to doubt my own point of view. The crime of bribing women and children should most likely be accompanied by other crimes. Why is it rarely reflected in the judgment? Does this mean that we cannot expect other serious crimes to be regulated, or that the penalties for bribery of women and children must be increased?

Later I figured it out, if most of the sentences for bribery of women and children did not involve rape, injury and illegal detention at all, then why was this?

Is it because the people who bribed women and children were all kind-hearted and did not do any unforgivable things to the women and children they bribed?

I want to believe that human nature is beautiful, but as a lawyer, I still have to return to reality.

That is to say, excluding the cases where the women who were bribed voluntarily, and some well-meaning people bribed them with good intentions, there must be a large number of rapes, detentions, etc. against the will of the women who were bribed. However, due to various reasons in reality, the local case handling Even if officers discover these things, they often have difficulty convicting those felonies due to various constraints, concerns and obstacles.

If we increase the penalty for the crime of bribing women and children, and mention more than ten years or even the death penalty, we can imagine how the local case handling agencies will respond? How would local people deal with the same situation and different laws?

The biggest possibility I can think of is that they don't even judge the basic purchase behavior, just give persuasion and warning like mud, or confirm that the buyer has not hindered the rescue or return to the place of origin, reduce the punishment, and make the big problem smaller. . "

Ren Zhen's words silenced Bai Jiasong, while some students raised their hands.

"Lawyer Ren, according to what you said, after the statutory penalty is increased, the penalty may not be applied. Then we have to watch these illegal people go free? Can't we arrest all these illegal people and how to deal with it? ?”

The student was filled with indignation and obviously confused.

“So I just said, no matter how perfect the legislation is, what’s the use if it can’t be implemented?

What this classmate said is an ideal situation, but reality is often not ideal. Maybe you have never seen the kind of situation where the whole village buys and sells people, and when the family comes to rescue, the whole village comes to stop it. For this kind of area, can we really follow the law? Deal with it, shoot them all? "

The student looked unconvinced and wanted to answer "yes", but he also knew that that was unrealistic.

"So the most critical thing is that the severity of the punishment in the criminal law is not fundamental. In the end, the probability of the crime and the intensity of law enforcement must be taken into consideration.

I personally think it is very difficult to expect these case investigators who grew up and lived in the area to attack the large areas where there is a need to bribe women. Even if the relatives of the bribed person come to visit, it will be difficult for them to identify serious crimes such as rape and detention, and in the end they will be treated lightly according to the bribery behavior.

To put it bluntly, it would be nice if you could take the person away.

Therefore, we cannot look for faults in legislation whenever a problem arises and expect it to be solved through legislation.

Increasing the penalties for the crime of bribing women and children in legislation can only satisfy the public's sense of justice, but the consequences may not be good, because the local relevant personnel face a "high" punishment, and even the crime may be very serious. It is difficult to decide, and even the possibility of rescue is greatly reduced.

Because to deal with such a high penalty means that he is becoming an enemy of the locals, and even his family cannot stay in the local area. "

Ren Zhen’s words were full of helplessness: “In my opinion, any revision and adjustment of legislation must take into account the logic of action at the specific implementation level, as well as the possible consequences that may completely deviate from the original intention of the revision.

If you don't consider these, you are not caring about the abducted women and children, but just to vent your anger and show your insignificant conscience. "

The student who raised the objection had already sat down silently. It was obvious that the facts Ren Zhen said had a great impact on him.

"The reality that Lawyer Ren said is indeed difficult for us to see when we sit in the classroom."

Bai Jiasong sighed and changed direction:

“I have long believed that the penalties for bribing women and children should be increased, and another very important reason is the comparison between this crime and animal crimes.

The crime of endangering precious and endangered wildlife stipulated in my country's criminal law has the lightest sentence of not more than five years in prison or criminal detention; if the circumstances are serious, the sentence is not less than five years but not more than ten years; if the circumstances are particularly serious, the sentence is not less than ten years. imprisonment, and a fine or confiscation of property.

According to current judicial interpretations, as long as it is a second-level protected animal, even if the target of the crime is one, it has already constituted a crime. For an animal like the golden monkey, even if it is just one animal, the situation is particularly serious.

Just now, lawyer Ren said that for people who buy animals, they mostly keep them as pets and watch them, which does not involve harm to the interests of the animals themselves, so only their purchasing behavior is regulated.

However, this view obviously ignores some animals with medicinal and edible value. If the animals are bought for food, it will cause damage to the interests of the animals themselves.

Then, if you purchase an animal and then commit an act such as killing it, it can only be considered a crime of endangering precious and endangered wildlife, but cannot be punished for multiple crimes. This is different from buying a woman and committing rape, which should be punished for multiple crimes.

Why should crimes involving bribery and other behaviors be considered together when it comes to animals, but separately when it comes to humans? "

(End of this chapter)