Recently, part of the content of the criminal verdict of a second-instance trial was released on a Weibo, which caused an uproar in the legal circle and society. According to the screenshots of the first- and second-instance verdicts with case number 2012, an unlicensed practitioner of medicine visited the ** woman many times to see a doctor and give injections, and was convicted and sentenced by the courts at two levels for the crime of assisting in organizing **. The Weibo publisher believes that this is clearly a "neutral helping behavior" and is not socially harmful in nature. However, the court of first instance held that in order to make profits, the defendant clearly knew that others opened leisure stores and controlled women to go out to see a doctor and it was inconvenient for the boss to control the situation, but still obeyed the instructions and arrangements of the organizers, and repeatedly visited these women without a license to see doctors and give injections, which played an auxiliary role in organizing ** activities, constituting the crime of assisting the organization, and was sentenced to one year and six months in prison and a fine of 5,000 yuan.
After the first-instance judgment, the defendant who was sentenced admits guilt and accepts punishment and does not appeal, and may appeal with the other defendants in the same case. In accordance with the legal provisions that some defendants in criminal cases appeal, and the court of second instance should also review the whole case, the court of second instance held at trial that the defendant accepted the instructions to visit the controlled ** woman to see a doctor, and provided assistance to others in the smooth organization of **, and his conduct constituted the crime of assisting in the organization, and the original trial court's conviction was correct and the sentence was appropriate.
Article 358 of the Criminal Law stipulates (the judicial interpretation of the relevant crimes was only provided for in 2017), anyone who recruits or transports personnel for the organization of ** or has other acts of assisting in organizing others** shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined; where the circumstances are serious, a sentence of between 5 and 10 years imprisonment and a concurrent fine is to be given.
Judging from the above legal provisions, the legal provisions give judicial personnel the discretion to "have other acts of assisting in organizing others". How should such discretion be used? Is it true that all those who provide facilitation to criminal organizations and criminals are "assisting" or "auxiliary" and will be charged with this crime? For example, if you are only engaged in cleaning, cashiering, security and other work in the ** place, and do not directly participate in the recruitment and transportation or act as a bodyguard to manage the account, will it be found to be the crime of assisting in the organization? Judging from the content identified in the judgment, the unlicensed practitioner is not a resident of the "leisure store", but a long-term unlicensed practitioner, who only goes to the outpatient clinic to treat the sick for profit, may objectively provide help to the ** organization, and also knows that they are engaged in illegal activities and does not report it, but as the netizen asked, knowing that the other party is engaged in illegal and criminal acts, as an unlicensed medical practitioner, should he be treated, or refused**? Is it necessary to punish all those who help the criminals in a single place? If we catch them all, will it lead to an expansion ?.. in the scope of crime crackdown?Judicial decisions must have the ability to settle disputes and achieve fairness, and they must not only have the intention of cracking down on crimes, but must also have the other side of protecting rights, punishing evil, and promoting good. This requires that when adjudicating a case, judges should not be limited to the parties temporarily accepting the judgment and admitting guilt and accepting punishment, but also need to export the concept of justice to the society with the understanding of being responsible to the law and society.
As in the case of "The Court Finds Not Guilty: The Defendant Pleads Guilty and Accepts Punishment, the Lawyer Makes a Guilty Defense, and the Procuratorate Recommends Sentencing" (click on the blue word to read), although the defendant has no objection to the facts, charges and sentencing recommendation of the procuratorate's indictment, and the defense lawyer has no objection, the judge still analyzed and informed the parties to the case and the society in accordance with the law that the mining waste rock in this case does not require a mining license before it can be mined. One of the constitutive elements of the crime of illegal mining under the Criminal Law is mining without obtaining a mining license, and the case was decisively acquitted. Such a judgment is the only way to announce to the society what behavior is right and what behavior is wrong through judicial judgment, and to exert the social values of fairness and justice to the public. It should also be noted that, just as Article 358 of the Criminal Law stipulates on the crime of assisting in the organization of **, many legal provisions and judicial interpretations adopt vague and catch-all provisions of "other" and "etc.", with the aim of avoiding the lag and limitations caused by the law being too rigid, and creating opportunities for illegal and criminal personnel to easily circumvent it.
The bottom line is that we cannot go beyond the basic common sense of the public, otherwise once the judgment flows to the society, it will easily cause an uproar. Specifically,The law is not imposing, and the judiciary should respect the simple, relatively stable, and moral feelings of the public. Judges must not only understand the law from the surface of the provisions, but must understand the value orientation behind the legal provisions. On the other hand, due to the incompleteness of legal provisions and the inevitable loopholes in the law, judges must grasp social customs, transaction practices, public order and good customs, and even technical knowledge in a certain aspect, so as to truly "be fearless of adjudication". (This view comes from the article "Reflections on the Use of Judicial Methods by Judges" by Xi Jianlin, President of the Shanghai No. 3 Intermediate People's Court and an expert in trial business of the Shanghai Court).
In connection with the crime of assisting in the Criminal Law, if there are "other acts of assisting in organizing others" in the mechanical application of the law, according to the understanding of including door-to-door medical treatment personnel in this scope, the cleaning personnel, cooking personnel, food delivery personnel, decoration personnel, food delivery personnel and even the relatives and friends of illegal and criminal personnel in the "leisure store" can all be included in the scope of criminal crackdown. In fact, these people, including those who provide medical treatment at home, even if they know that the other party is engaged in illegal and criminal acts, they will all charge for the provision of services. Who has ever heard that before providing these services, you have to inquire about the person's profession before deciding whether to provide them? If these persons are included in the scope of the criminal law, it will obviously exceed the basic common sense that no one can live in a vacuum and that society is connected everywhere, and it will not conform to the legislative purpose of "correctly applying the law, punishing criminals, and ensuring that innocent people are not criminally prosecuted."
With the development of the Internet, the hot judicial cases that have caused a wave of exaggeration in recent years, including the activation of the provisions of the criminal law on justifiable defense, are all caused by the one-sided mechanical application of judicial decisions, which transcends the social common sense of the public and ordinary netizens.
As I have written before, a senior judge once told Yan Yujun that every time he encounters a judgment on a case that he cannot decide, he will hide the names of the parties to the case and contradictory legal opinions to his family or friends who have not learned legal knowledge, and listen to their views, which will often have the effect of suddenly opening up and avoiding his own mistakes. In fact, this kind of adjudication thinking means that judges overcome their own simple legal thinking and listen to the basic common sense of the public in the process of adjudication.
Note: This article is an original article by "Smoke Grammar Explanation" Legal Gas Station