The tools of crime on the tools of crime study the real value

China's laws do not provide a specific definition of "tools of the crime", but only provides for the judicial organs in the case of seizure, management, confiscation and use as evidence of the procedures, such as the Criminal Law, Article 64, the Criminal Procedure Law, Article 198, etc.. The National People's Congress and the central judicial authorities have also made provisions for the seizure, detention and freezing of money and property involved in cases, stipulating, in particular, that "no unit or individual may misappropriate or dispose of it privately". From this we can see, the study of "tools of crime" has a certain practical value.

(a) Through the analysis of judicial practice in the seizure and supervision of the reality of the tools of crime, criticizing the realism of the interests of judicial behavior, and promote law enforcement and judicial justice What kind of tools of crime should be confiscated? CCTV's "Today's Law" once reported a case: Zhang Mou and Zhao Mou conflict, Zhang Mou gathered his relatives, friends more than a dozen people by Sun Mou's a bus to Zhao Mou's home will be injured, Zhao Mou died. Afterwards, the court held that Sun's car is a tool of crime, should be confiscated according to law. There was another case: a certain A used his computer to publish insulting and defamatory information about a certain B on the Internet, and B filed a private prosecution with the court. The court ruled that A constituted the crime of insult and sentenced him to confiscation of a computer, which was the "instrument of crime". In both cases, the car and the computer were used to commit the crime, but they were not objects used exclusively to commit the crime. We do not think it is appropriate to confiscate a passenger car, which is normally used for passenger transportation, and a computer, which is normally used for work and recreation, as "instruments of crime" just because they were used to commit a crime at a moment's notice. According to this logic, the vehicle involved in a traffic accident should also be an instrument of crime, and the house used to illegally detain others also belongs to the instrument of crime, obviously this is very absurd.

China's criminal law, article 64 provides: "criminals shall be recovered or ordered to refund all property derived from the law ...... contraband and for criminal use of their own property, shall be confiscated ...... ". We believe that the "tools of crime" should be understood in a narrow sense, that is, items "dedicated to crime or mainly used in criminal activities", which contains three layers of meaning, first, from the physical properties, the tools of crime are "objects and instruments"; second, from the use of the tools of crime are "objects and instruments"; and second, from the use of the tools of crime are "objects and instruments". Firstly, in terms of physical properties, an instrument of crime is "an object, a tool"; secondly, in terms of use, it is "for use by criminals in the commission of crimes"; and thirdly, in terms of efficacy, it "provides criminals with the convenience of committing crimes, and creates the conditions for achieving their goals". Examples include equipment and raw materials for the manufacture of methamphetamine, production lines for the manufacture of pirated CD-ROMs, murder weapons purchased for the purpose of committing crimes, and automobiles purchased for the purpose of transporting drugs. In other words, these items are used exclusively for criminal activities and not for other purposes, or are used primarily for criminal activities and occasionally for other purposes. Who has the final say in the confiscation of the instruments of crime, the investigating, prosecuting and judging authorities?

First, the tools of crime should not be confiscated by the investigating authorities. First of all, the investigating authorities confiscation of criminal tools against the principle of criminal procedure. Article 12 of the Criminal Procedure Law stipulates: "No one shall be determined guilty without a judgment of the people's court in accordance with the law." Only after the court has found the defendant guilty can the instruments attached to the criminal for use in the commission of a crime be characterized as instruments of crime and confiscated. The investigating authorities do not have the authority to determine whether the suspect is guilty or not, and it has not yet been determined whether the instruments used in the commission of the crime are the instruments of crime in the sense of criminal law. Secondly, the investigating authorities confiscated the tools of crime to bring inconvenience to the proceedings. As evidence, the tools of crime have to be adduced and examined in court. If the investigating department in the investigation stage will be confiscated, the public prosecutor can only use the criminal tools of the photo for evidence, questioning, can not bake the effect of the trial, but also can not achieve the purpose of education; At the same time, once the defendant or the defense objections, the public prosecutor can not be presented in court at a glance evidence, how can let the presiding judge, the jurors, the crowd is convinced? In addition, the investigating authorities confiscate the tools of crime easily lead to judicial corruption. Investigating authorities in the investigation stage of the suspect's instruments to be confiscated, often not based on the actual decision of the case, but based on the department, the unit's interest considerations, arbitrariness is greater, and even appeared a small number of investigative departments or investigators misappropriation, misappropriation of illegal and undisciplined phenomenon.

Secondly, the tools of the crime should not be confiscated by the procuratorial organs. By the nature of the procuratorial organs decided that it only decided to "withhold", not the final decision to confiscate the power, and at the same time have the obligation to the seizure of criminal tools and supervision of supervision work. Of course, the procuratorate confiscation of criminal tools also easily lead to judicial corruption.

Third, the tools of the crime should be recognized by the court trial before confiscation. First of all, whether the tools of crime can only be judged by the people's court, other organs do not have the right to characterize the tools of crime. Secondly, the people's court judgment made by the confiscation of the tools of the decision has the coercive force and authority of the state, and by the people's court and in the judgment, also protects the defendant convicted of the first trial of the original belonging to the handling of their own property the right to know, at the same time can also be on the final disposal of property to increase the opportunity to appeal, in order to more reflect the justice and transparency of the law. Once again, a decision by the people's court to confiscate the instrumentalities of a crime enables the various law enforcement agencies to better constrain each other, thereby maximizing the protection of the legitimate rights and interests of criminals, and also reduces the potential for corruption in the handling of the instrumentalities of a crime. In practice, for the tools of crime, often by the case department in the corresponding litigation procedures for the relevant seizure procedures, in the final judgment, by the court on the tools of crime to be confiscated decision and set out in the judgment.

Problems that should be noted in the seizure and supervision of the instruments of crime.

First, not because of financial constraints or to fulfill the confiscation of the task of misuse and abuse of the "right of confiscation", not to mention the legitimate rights and interests of the parties to the "confiscation". In recent years, due to the judicial organs of the case funds, material conditions are varying degrees of shortfalls, financial and material security can not fully adapt to the needs of criminal work, police officers each year to complete a certain amount of confiscation of money to make up for the lack of funds to handle the case. In practice, the case department is often driven by the interests of the larger value or can be used, all recovered, and even at the expense of the legitimate rights and interests of the accused, including victims.

Second, the procedures for withholding and supervision should be gradually standardized. The central legislative and judicial organs of the judicial interpretation of the "seizure, freezing", the judiciary should adhere to a prohibited goods are confiscated, which is mandatory and uncontroversial provisions. Such as control knives, drugs, firearms and other tools, it has the dual attributes of stolen goods and tools of crime, if not handled properly, but also easy to flow into society. Secondly, administrative penalties cannot replace criminal penalties, but they can be fast-tracked administrative penalties first, and the items in the case will be transferred to the next criminal proceedings immediately after the direct enforcement is completed. Third, the seized and frozen property of criminal suspects and their fruits, as evidence of the use of physical objects should be transferred with the case; it is not appropriate to transfer, should be its list, photographs or other supporting documents should be transferred with the case, to be the people's court to make an effective judgment, by the public security organs of the seizure of the public security organs in accordance with the people's court's notification to the state treasury or return to the victim, and to the people's court to send the implementation of the bill of lading.

(2) through the analysis of the constituent elements of the tools of the crime, to explore the tools of the crime should be noted when used as evidence

1, the characteristics of the tools of the crime. Tools of crime should be in line with the broad sense of the "tools" of the three basic features, that is, to have its external characteristics (specifications, size, length, size, color, features, price, shelf life, bar code, manufacturer, contact phone number, address, instructions for use, precautions, etc.), functional use (forensic identification, etc.) and special instructions (seizure) , time, place, witness, holder, etc.).

2, the understanding of the instrument of crime. Should be defined in the intentional crime, and the "instruments of crime" should be understood in a narrow sense that is "dedicated to crime or mainly used in criminal activities".

3. Matters to be noted when instruments of crime circulate in the course of the proceedings. Tools of the crime as a kind of circumstantial evidence, in the process of the flow of the litigation process should pay attention to: First, the handover of complete formalities; Second, proper storage, shall not be misappropriated, misappropriation.

4, the review of the tools of crime should be closely linked to the basic attributes and elements of evidence. First, we should closely follow the evidence of the "three" requirements, in particular, to see whether the collection of legal procedures, access; at the same time, to examine whether the extraction is timely, there is no other "complementary" evidence to consolidate the evidence of proof; in addition to reviewing the tools of the crime and preservation of the processing In addition, we also need to examine whether the handling and preservation of tools of the crime is appropriate, the identification of the procedures and quality of the transcripts to consolidate the evidence of the "three nature" requirements of the role. Second, to review the identification, test report, test opinion and other identification instruments in accordance with the statutory format; to review the legality of the identification process and whether to inform the content; to review the identification of the content of other materials to corroborate the identification is objective. Third, to review the role of the tools of the crime in the evidence, to see whether to form a chain of evidence; to review the "whereabouts unknown" of the tools of the crime whether it affects the conviction; in addition to review whether there is a "low-level" error, such as a tool of the crime to do the seizure procedures twice, and so on.

(C) through the tools of crime whereabouts unknown and the relationship between the mitigation of doubt, examine the reality of the trial concept

The tools of crime as a major evidence, in the judge to determine the case plays a pivotal role. In trial practice, because the whereabouts of the tools of the crime is unknown, the judge may have "doubtful", "doubtful", "doubtful", "doubtful" and other three practices. We believe that the first two practices are too absolute, the third practice (which can be divided into "leave room for manoeuvre" method, such as the death penalty sentenced to life imprisonment or fifteen years of imprisonment and "suspected of crimes from the hanging" method, that is, hanging up for a long time to be indecisive there are two methods) and have "and mud" suspicion.

Criminal cases involve deprivation of personal freedom and even deprivation of human life. Therefore, the judicial authorities in the investigation, review of arrest, prosecution, trial, execution and the determination of facts, the application of the law and other macro and micro aspects of not a little ambiguity. Years ago, the judiciary tended to look at issues from the perspective of "presumption of guilt", which led to the loss of a popular basis for judicial work. At present, despite years of implementation of the law-enforcement concepts of "presumption of innocence" and "presumption of innocence", cases of wrongdoing are still occurring one after another. We believe that the main reason for the occurrence of wrongful convictions is the unscientific nature of the existing criminal procedure mechanism. Article 7 of the Criminal Procedure Law of our country stipulates that the three organs of the public prosecutor and the law "...... should be responsible for the division of labor, cooperate with each other, and restrain each other ......", but in practice there is more than enough cooperation and not enough restraint. Specific performance is the Procuratorate, the court in the review, the trial of a specific case, knowing that there are flaws in the evidence of the case, but not in accordance with the law to put forward doubts, to exclude contradictions, but the three organs sit *** with the discussion of "how to deal with" and help the front of the organs of the "pass". This unique working mechanism in the invisible may lead to wrongdoing, Hubei judicial authorities for She Xianglin case is a proof of the way to deal with. We all know that the implementation of the "no doubt" law enforcement ideology can minimize the wrongful conviction, but in judicial practice for the suspected crimes, the judicial personnel often take a "lenient" way of dealing with the case, although the revised Criminal Procedure Law provides that Although the amended Criminal Procedure Law provides for the principle of "presumption of innocence", it has not yet been fully implemented, and the "presumption of innocence" and certain litigation principles and procedures associated with it have not yet been recognized. This shows that the principle of "presumption of innocence" has not penetrated y into the hearts and minds of judicial officers. To completely realize the presumption of innocence, this concept should be established at the investigation stage.

The second is that some judges have denied the "benefit of the doubt" concept of law enforcement. In trial practice, some judges believe that: "the doubtful or the doubtful from the light" these specious concepts should not be advocated. "Suspicion of innocence" or "suspected of mitigating circumstances" in the legal profession can be debated endlessly, but in the trial practice, especially in the concept of the judge should not have a place. After all, jurisprudence is jurisprudence and not the law, even the legal profession can not unify the views of the practical field of the trial simply can not be applied. Therefore, in the face of "insufficient evidence", some judges due to their low quality or subjective factors artificially create "doubt", there are also judges under the banner of "benefit of the doubt or mitigation of doubt" Harboring criminals, which is a blasphemy of the law, or even a crime. Judges who deny the "benefit of the doubt" concept of law enforcement will inevitably result in wrongful convictions in the course of law enforcement. Of course, there are also judges in the face of insufficient evidence due to procedural law enforcement, insist on re-investigation and evidence collection; in the face of demanding due to objective factors and can not be accessed to the evidence ultimately caused by the evidence can not reach conclusive, adhere to the "benefit of the doubt".

Third, another reason for the occurrence of wrongdoing is the pursuit of "political effect, legal effect, social effect of the high degree of unity" of the guiding ideology at fault. Especially in the investigation, a social effect, we have to put social stability in the first place, murder cases must be timely to find the murderer. So invariably controlled by public opinion, the way of work is easy to deform, the practice of bidding to solve the case, the deadline for solving these practices. The public security organs are often pressurized by their superiors to solve cases, and they are often warned that the murder cases must be solved, and they are given the target of solving the cases. This has formed a centered on the investigation, the public prosecution and law three organs of the operation, and finally by the court to confirm the review of the facts of the case.

Fourth, the principle of statutory offense has gone to two extremes in both legal and judicial circles. We believe that the principle of the law of crimes is the highest principle and bottom line that all criminal proceedings must comply with. But in the legal and judicial circles there are two extremes: an absolute interpretation of the law of the crime and the principle of doubt; one is too much emphasis on the dynamic application of the law, there is a tendency to put the law of the crime of the situation of the virtual. These perceptions are reflected in judicial practice, which is either to be fault-finding and indulgent in crime, or to prefer wrongdoing to indulgence. We believe that these are inappropriate. How to correctly interpret the principle of the law of crimes, correctly grasp the principle of mitigating circumstances, for the full and effective maximize the play of the criminal law to combat crime, to protect the people, to protect the stability of the social order, to safeguard social justice and fairness, and to promote social justice behavior, are of great significance.

The British Bar Association has a jargon: "you in the defense, never say your client is guilty or innocent. You can only say that from the current evidence, it is not yet possible to prove his guilt or innocence." In judicial practice, for the "suspected" problem, we believe that we must eliminate the two extremes, adhere to the basic facts, the basic evidence of the "two basic principles", not only to avoid indulgence in crime, but also to avoid the occurrence of wrongdoing.

Credit card fraud in the determination of the instrument of crime

According to article 196 of the criminal law, credit card fraud is the purpose of illegal possession, the use of credit cards, that is, the use of counterfeit, invalid credit cards or fraudulent use of other people's credit cards, malicious overdrafts, the method of fraudulent activities of an economic crime. It is generally recognized that credit card is the instrument of crime rather than the object of crime in this crime. However, there have been two distinct views on the determination of the scope of "credit card" itself. One opinion holds that the objective aspect of the crime of credit card fraud includes malicious overdraft from the very beginning, so this regulatory focus is set on the premise that credit cards have overdraft functions, and debit cards that do not have overdraft functions do not belong to the scope of credit cards; and that if the amount of property fraudulently obtained by using a forged, invalid, or fraudulently using another person's debit card is relatively large, it can be punished by conviction of a related fraud crime, and will not result in the indulgence in the use of debit cards to commit crimes. Another view is that, according to the Measures for the Administration of Credit Card Business issued by the People's Bank of China in 1996, credit cards include both credit and debit cards, and therefore the credit card in the legislative intent at the time of the revision of the criminal law in 1997 was a credit card in the broad sense, that is, today's bank card, and the rationale for the original legislative intent of the criminal law could not be altered because of changes in the administrative regulations; and, secondly, the difference between a credit card and a debit card lies only in whether or not it can be overdrawn, and other differences in its utilization. lies in whether or not overdraft is possible, and other behavioral manifestations of fraud using different bank cards are not essentially different. The actual difference between the two views lies in whether or not it is recognized that the meaning of "credit card" in the crime of credit card fraud in criminal law needs to be changed with the changes in the meaning of "credit card" in the actual business work of banks. From the perspective of legal hermeneutics, the object of legal norms is people's real behavior, the stability of the legal order is not manifested in the meaning of the provisions of the eternal or the legislator's original intention, on the contrary, the core connotation of the concept of the law and the extension of the semantics of the concept of the law should be by the change of the practice of life to determine. As far as criminal justice is concerned, characterization according to the second viewpoint would clearly violate the principle of legality of crime and punishment. The principle of legality is a fundamental principle of modern criminal law, and its ideological basis is democratism and respect for human rights. Respect for human rights means the same thing as making nationals predictable. The standard for judging whether to violate the predictive possibility of the nationals is mainly judged by the degree of acceptance of the general public: when an interpretative conclusion can be accepted by the general public, it means that the conclusion does not exceed the predictable degree of the nationals; on the contrary, if the general public is surprised by a certain conclusion, it means that the conclusion is contrary to the principle of the law of crimes and punishment. According to current banking practice and the general understanding of this, the so-called credit card, as its name suggests, essentially functions as a short-term financial lending instrument directly linked to credit. In other words, with or without an overdraft function is the fundamental difference between credit cards and debit cards, and is also one of the signs that credit card fraud is different from general fraud, and should be the core purpose of the criminal law to carry out special regulation. However, the Interpretation of the Standing Committee of the National People's Congress of the Criminal Law on Credit Cards points out that "credit card" under the Criminal Law refers to an electronic payment card issued by a commercial bank or other financial institution that has all or part of the functions of consumer payment, credit loan, transfer and settlement, and cash deposit and withdrawal. According to this provision, credit cards in China's criminal law continue to be understood in the same way as before, i.e., they include debit cards. We believe that this provision is questionable, which not only violates the basic idea implied in the above criminal law, but also does not conform to the basic practice of credit card business in the international arena. Of course, some people may think that with the trend of diversification of functions in the business of bank financial certificates, some credit cards not only have the function of overdraft, but also have the functions of consumer payment, transfer and settlement, and access to cash. If the perpetrator only uses the credit card to carry out fraudulent activities with non-overdraft functions (excluding use at ATMs), can it be recognized as credit card fraud? The answer is yes. This is because the scope of application of this crime should be credit cards with overdraft function, but it does not mean that this crime can only be regulated separately for its overdraft function. From the provisions of Article 196 of the Criminal Law, malicious overdraft is only one of the manifestations of this crime, which indicates that a unified regulation of financial instruments with a variety of functions is technically feasible in the legislation. As for the debit card, it essentially belongs to a kind of financial credentials, the use of debit cards to implement fraudulent activities, should be dealt with financial credentials fraud, and does not constitute 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 refunded; the victim's lawful property shall be returned in a timely manner; contraband and personal property for use in the commission of the crime shall be confiscated. Confiscated property and fines shall be paid into the State treasury and shall not be misappropriated or disposed of.

Article 198 of the Criminal Procedure Law: The public security organs, the people's procuratorates and the people's courts shall, with regard to the seizure and freezing of the property of criminal suspects and defendants and the fruits thereof, keep them in safe custody for verification. No unit or individual may misappropriate them or dispose of them on their own. The victim's lawful property shall be returned in a timely manner. Contraband or items not suitable for long-term preservation shall be disposed of in accordance with the relevant provisions of the State.

The physical objects used as evidence shall be transferred with the case, and where such transfer is not appropriate, the list, photographs or other supporting documents shall be transferred with the case.

After the entry into force of the judgment rendered by the people's court, the seized and frozen stolen money and property and their fruits shall be confiscated and surrendered to the state treasury, except for those returned to the victims in accordance with the law.

Judicial personnel who embezzled, misappropriated or privately handled the seized or frozen stolen funds and property and their fruits shall be held criminally liable in accordance with the law; if they do not constitute a crime, they shall be punished.