Yu Chen (Director of Heda Law Firm).
Illegal production and sale of special espionage equipment, wiretapping, and photographic equipment
1. Legal provisions
Article 283 of the Criminal Law stipulates that "anyone who illegally produces or sells special espionage equipment or special equipment for eavesdropping or eavesdropping shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and/or a fine; where the circumstances are serious, the sentence is between three and seven years imprisonment and a concurrent fine.
Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the preceding paragraph.
2. Interpretation of Provisions
This article is a provision on the crime of illegally producing and selling special espionage equipment, wiretapping, and photographic equipment, and its criminal punishment. The so-called crime of illegally producing and selling special espionage equipment, special equipment for eavesdropping, and eavesdropping, refers to the illegal production and sale of special espionage equipment such as eavesdropping and eavesdropping, and phototapping, which shall be punished by criminal punishment. The constituent elements of this crime are as follows:
1) This crime is objectively viewed.
The subject of this crime is the general subject. This crime can be constituted by a natural person who has reached a certain age and has the capacity for criminal responsibility. According to the provisions of the Criminal Law, an entity may also constitute this crime.
Judging from the harmful conduct and harmful results, this crime is manifested in the illegal production and sale of special espionage equipment, and special equipment for eavesdropping and eavesdropping.
"Illegal" refers to the unauthorized production and sale without the approval of the relevant state authorities, or the unauthorized production and sale beyond the planned plan and beyond the scope of sales despite the approval of the relevant state departments.
Special espionage equipment is a special tool for investigation and security work carried out by the first department, and its production and sales are strictly controlled by the first department. The production and sale of special espionage equipment is generally prohibited by law, so unless it has been explicitly designated and approved by the first department, in principle, it is illegal production and sales.
2) The crime is subjective.
The offence is subjective and intentional and does not require that it must be for profit. Negligence does not constitute this crime.
3. Criteria for filing a case
According to article 283 of the Criminal Law, this crime is an offense, and as long as a unit or individual who does not have the right to produce or sell special espionage equipment manufactures or sells espionage equipment without authorization, it constitutes a crime and shall be filed and investigated.
Fourth, risk prevention
Article 21 of the Law stipulates: "No individual or organization may illegally possess or use special espionage equipment such as eavesdropping and eavesdropping. At the same time, Article 20 of the Detailed Rules for the Implementation of the Law stipulates: "The term 'special espionage equipment' as used in Article 21 of the Law refers to the following equipment that is specially needed to carry out espionage activities: (1) concealed eavesdropping and photographic equipment; (2) Burst transceivers, one-time codebooks, and cipherwriting tools; (3) Electronic interception and interception equipment used to obtain intelligence; (4) Other special espionage equipment. The confirmation of special espionage equipment is the responsibility of the Ministry of State. Therefore, without the approval or authorization of the first department, no enterprise can produce or sell espionage equipment. As an enterprise, it should understand the provisions of the "** Law", refuse to produce and sell espionage equipment, produce and operate in accordance with laws and regulations, and know the law and understand the law, so as to stay away from the criminal risk of this crime.
5. Case analysis
1) Case introduction.
The Yangxin County People's Procuratorate alleges: In January 2014, the defendant Gong purchased transmitters and receivers from Sun in Shenzhen, and together with He (handled in a separate case), sold 10 "HK" brand transmitters and several receivers to Wang (sentenced) for more than 10,000 yuan (the following currencies are the same) through the Internet, and Wang sold the equipment to Song (sentenced) and others, and then sold them to college entrance examination candidates in Yangxin County, Hubei Province in June 2014.
From October 10 to 13, 2014, defendant Gong purchased transmitters and receivers from Sun in Shenzhen, and later sold them for 4260,000 yuan of ** sold 40 transmitters and 160 receivers to Wang Moujia (handled in a separate case), Wang Moujia was ready to sell the equipment to English test takers in Zhoukou City, Henan Province in November 2014, but was seized by the public security organs before **. On December 2, 2014, 10 transmitters and 150 receivers were seized from Wang's home. After identification, the equipment involved in the case was all special equipment for concealed eavesdropping. The RMB 341,000 involved in the case has been seized.
Defendant Gong X has no objection to the facts alleged in the indictment. His defenders argued:1Gong had indicated online that it should not be used for any illegal purpose at the time of sale, indicating that it had a warning to prevent it from being used for illegal purposes, and the degree of subjective malice and social harm was small; 2.Defendant Gong X has attempted circumstances in part of the facts of the crime, and that part should be given a lighter punishment in accordance with law; 3.Gong X has circumstances of voluntary surrender and may be given a lighter punishment in accordance with law; 4.Defendant Gong's family was in great financial difficulty, and he was willing to return the stolen goods, showing strong remorse. In summary, it is recommended that the court sentence the defendant Gong X to a sentence of less than 8 months and apply a suspended sentence.
After trial, the court held that the defendant Gong X illegally sold concealed eavesdropping equipment, and his conduct constituted the crime of illegally selling special equipment for espionage. The prosecution was convicted of the offence charged. Defendant Gong X voluntarily surrendered after the case was discovered, and truthfully confessed the facts of his crime, so he surrendered voluntarily and may be given a lighter punishment in accordance with law. In the end, the court found the defendant Gong guilty of illegally selling special espionage equipment and sentenced him to 10 months in prison.
2) Brief commentary.
According to the law, it is a crime to sell espionage equipment. Judging from this case, whether or not the purchaser is reminded not to use it for illegal purposes before the sale does not affect the establishment of this crime. In this case, the defendant sold a huge amount of espionage equipment, which clearly constituted a crime. The court sentenced the defendant to 10 months' imprisonment, which should be said to be a punishment for his crimes. For espionage equipment, it is forbidden to manufacture and sell it, which should be regarded as the basic legal common sense of enterprises.