The legal relationship in the case of Yinglian's abduction.
In the fourth episode of "Dream of Red Mansions", Jia Yucun gave Ying Tianfu, and as soon as he arrived, he took over a person**, but the two families competed to buy a maid, and each did not give in to each other, resulting in beating people's lives. ”
The plaintiff is Feng Yuan's family, and the name of the old man Cao has a deep meaning, Feng Yuan (Feng Yuan), "Because I bought a girl that day, I didn't want to sell it as a kidnapper." "This kidnapper received Feng Yuan's money, I didn't expect this Feng Yuan to be a contestant who pursues a "sense of ceremony" in life, buy a girl and have to choose a day to pick up the door, the two sides agreed to pick up people three days later, why is it so ceremonial, it turns out that this kid is a homosexual, and when the door introduced Feng Yuan to Jia Yucun, he mentioned "I love the south wind, not very good women", after seeing Yinglian, "hey" who said that women are not as good as men, "swear not to be close to men, and not to marry a second one, so solemnly, you must enter the door after three days." Unexpectedly, the abductor was not authentic, so he sold the girl to someone else, and it was okay to sell it to ordinary people, but it was sold to the Xue family with a down payment in Jinling. After Feng Yuan learned about it, he went to find the main buyer, not wanting to be beaten by Xue Pan of the Xue family with his family to Feng Yuan, Feng Yuan was not angry, and he was sad.
What are the legal problems with this paragraph, which is evaluated in accordance with modern law?
1. The act of raising and selling children first violates the crime of abducting and trafficking women and children under article 240 and the crime of abducting children under article 262 of the Criminal Law.
How is the act of a kidnapper punished? Whoever abducts or traffics women or children in accordance with the provisions of Article 240 shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and shall also be fined. This crime is a felony, and as long as it is constituted, it is punishable by five years. In any of the following circumstances, trafficking in women or children is to be sentenced to 10 or more years imprisonment or life imprisonment and a concurrent fine or confiscation of property; where the circumstances are especially serious, the sentence is to be death and confiscation of property: (1) the ringleader of a group that abducts and traffics women and children, (2) abducts or traffics three or more persons, (3) rapes and commits adultery with a trafficked woman, (4) entices or compels a trafficked woman**, or sells the trafficked woman to others to compel her**, (5) uses violence, coercion, or narcotics, to kidnap women or children for the purpose of selling, (6) steals infants and young children for the purpose of selling, (7) causes serious injury to the trafficked woman, child, or their relatives; Death or other serious consequences.
What are the plots of the abductors?
Yinglian's lost age, according to the first record of the original book, Yinglian's abduction age should be between four and five years old, and it was stolen when her family took the Lantern Festival to see the lanterns. Yumura also said in this episode, "I heard that he was abducted and trafficked since he was five years old, but he is only selling it now? "It can be judged that Yinglian was stolen by a child abducted from her family and guardian when she was a child, which meets the crime of child abduction. When Menzi introduced the crutches to Jia Yucun, he mentioned that "this kind of crutches are young girls, raised until they are twelve or thirteen years old, and brought to other places for monopoly." "This kind of behavior of raising for seven or eight years and then selling is a conversion offense, and a misdemeanor is transformed into a felony, which produces the purpose of selling. Punished on conviction for a felony. Therefore, the crime of child trafficking should be criminalized.
There is another situation regarding the plot of "raising first and then selling", that is, if the original purpose is indeed to raise oneself, but in the process of raising oneself, because of objective reasons, such as having one's own biological child or because of the deterioration of economic status, etc., how to convict the abducted child? In this case, the crime of child abduction and the crime of child trafficking should be punished concurrently.
If the abductor is in the above two different situations, which penalty is heavier?
Let's look at the first situation first, when the person is transformed, there are serious circumstances in the abduction, and the child is stolen for the purpose of selling, so the sentence is more than 10 years in prison.
In the second case, the act of abduction is punishable by fixed-term imprisonment of not more than five years in accordance with the provisions of the Criminal Law. Because the former charge blocked the aggravating circumstance of "stealing infants and young children for the purpose of selling", the sentence was to be sentenced to 5 to 10 years in prison, and if there were no other aggravating circumstances, the total sentence would not exceed 10 years. So it's much lighter than the first case.
2. Feng Yuan and Xue Pan's act of bribing Yinglian violated Article 241 of the Criminal Law of the crime of buying abducted and trafficked women and children. It refers to the act of buying abducted women and children without the purpose of selling. A sentence of up to three years imprisonment, short-term detention or controlled release is to be given. But there is another issue involved here, what is the purpose of these two buyers to buy Yinglian, obviously not to find a big girl to support, but to be a concubine. Feng Yuan has already been explained before, and he gave up his male style for Yinglian. So what is the purpose of Xue Pan? After listening to Menzi's introduction to the case in Zhongyu Village, he said, "This Xue family is richer than the Feng family, and if you want to be a human being, naturally there are many concubines and promiscuity, and you may not be in love with Feng Yuan." It can be seen that Xue Pan bought Yinglian to be a concubine. As mentioned earlier, Yinglian was about five years old when she was abducted, and when she bought Feng Yuan and Xue Pan, she was seven or eight years after she was abducted, that is, she was no more than fourteen years old. According to the provisions of the Criminal Law, having sexual relations with a girl under the age of 14, regardless of whether the other party is willing or not, constitutes a ** crime. And after Yinglian was ** Xue family, she did become Xue Pan's concubine. Later, because of Xue Pan's daughter-in-law, the fierce woman Xia Jingui was jealous of Yinglian and tortured Yinglian to death. That's a story for later. Xue Pan and Feng Yuan's bribery of Yinglian both constituted the crime of buying abducted and trafficked children, and both completed the transaction, which is a completed crime. It's just that Xue Pan's behavior was suspected of **, and he absorbed the act of bribery and was convicted separately.
3. Is the act of "one daughter marrying two people" a fraud or a civil fraud?
How to distinguish this mainly depends on the attitude of the abductor towards the money obtained by "one daughter and two marriages", and whether it has the subjective purpose of illegal possession. If it wants to break the contract with the first buyer because the second buyer gives a higher ** or has other purposes, it subjectively does not have the intention to take possession of the money of the two buyers, and the objective performance is to actively return the first money. If, after selling to a second company, they flee with the money, or squander it, this can be regarded as having the subjective purpose of illegal possession. In this episode, Menzi said, "Who knew that this kidnapper was smuggled and sold to the Xue family, and he wanted to flee with the money of the two families." "Obviously, this product is trying to get an extra piece of money, which is a fraud.
4. Xue Pan assaulted Feng Yuan in violation of Article 234 of the Criminal Law, and whoever intentionally harms another person shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release.
Whoever commits the crime in the preceding paragraph, causing serious injury, is to be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes death or seriously injures a person by especially cruel means, causing serious disability, is to be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment, or death. Where this Law provides otherwise, follow those provisions. What are the circumstances of Xue Pan's conviction and punishment?
The first is age, in the original text, "This Xue Gongzi's scientific name is Xue Pan, the table character Wenlong, this year Fang is five years old, with a luxurious temperament and arrogant words." But some versions did not explain Xue Pan's age when he committed the crime. Extrapolating from his behavior, fifteen is still more realistic. According to the Criminal Law, a person who is 15 years old and has reached the age of 14 but is not yet 16 years old, and commits the crimes of intentional homicide, intentional injury causing serious injury or death, robbery, drug trafficking, arson, and disseminating dangerous substances, shall bear criminal responsibility. However, if they are not yet 18 years old, the punishment shall be mitigated or commuted.
The second is Xue Pan's role in the whole crime, "Then Xue Gongzi was unwilling to let people, so he ordered his subordinates to do it, beat Feng Gongzi to pieces, and carried him back to death for three days." "Xue Pan instructed the family to beat Feng Yuan, and in the whole case, he played a leading role, responsible for directing and making decisions, and was a principal offender, and the other family members were perpetrators. However, they are all principal offenders, there is no question of accessory, and they all play the same role in the crime, and none of them is indispensable.
The third is that Xue Pan and his family beat Feng Yuan to death, which is an aggravating circumstance of the crime of intentional injury, and should be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.
The fourth is that if Xue Pan dies, how will the case be handled?
In accordance with the provisions of the Criminal Procedure Law, if the defendant dies, if he dies before the case is filed and investigated, criminal responsibility shall not be pursued; After the case is filed, the case shall be withdrawn; After the transfer for prosecution, a non-prosecution disposition shall be made; If there is no ** trial, the facts of the case cannot be clarified, and the trial will be terminated or acquitted; Where a judgment has not been rendered, and the facts of the case have been clarified, the trial is to be terminated.