Standards related to existing gun found, again caused academic debate. On January 6, more than scholars in public policy at the University of politics and law, China Research Center on 104th JI men in decision-making around the "why are toy guns gun" this subject, discussion about gun-related cases in the criminal justice objective blame and countermeasures.
According to statistics from Chinese people's public security University Professor Chen Zhijun, since 2007 standard firearms modified since "fake gun crimes" are frequent. In particular in the Ministry of public security of the firearms injury criterion before and after enactment of the forensic sciences, illegally manufacturing, trading in, transporting, mailing, storage of firearms and illegal possession, possession of arms punishable crimes these two major gun crime, there have been significant changes in the number of cases, were 254 and 721 (trial time span from December 23, 1991 to March 28, 2013).
After surging News (www.thepaper.CN), Zhejiang, Sichuan, Fujian, Liaoning, Guangdong, Beijing, Tianjin and other places appear "fake gun crime" of judicial precedent, who has on several occasions questioned the standard for gun control laws and gun.
Firearms identification standards change, "fake gun crime" case
1996 the implementation of the Firearms Act article 46th has clearly defined: "the guns in this law refers to gunpowder or compressed gas powered, tubular metal projectile devices, or other substance, enough to cause casualties or loss of consciousness of a variety of firearms. "
This provision was adopted, and the corresponding simulation guns, toy guns.
February 22, 2008, issued by the Ministry of public security provisions of the standard imitation guns, who meet one of the following three conditions can be identified as imitation guns: first, the power of standards. That meet the requirements of the Firearms Act firearms components, firing metal projectiles or other material than the kinetic energy of the gun is less than 1.8 joules/cm (not including the number), greater than 0.16 j/cm (not including the number); Secondly, structural standards. Have gun appearance, and has the standard firearms, materials and functions similar to the barrel, bolt, receiver or firing one of third, overall standards. That is, shapes, colors and standard firearms are identical or similar to, shape and size appropriate format for guns gun length length size of 1/2 and 1 time between times.
Toy guns on the definition, in December 2012, the Bureau of public security administration has on online public consultation the following reply: found to be a toy gun with the following three features: first, the overall standards. In appearance, and imitation guns is quite different and second, color standards. On the exterior color, mostly use the more bright colors such as red, green, and black area is less than the total surface area of one-third third, the power of standards. Meet toy standards, the muzzle than the kinetic energy of the projectile emitted less than or equal to 0.16 j/cm.
Reality is, guns that the standards of Justice and most of the people on "firearms" cognitive differences. In judicial practice, the defendant insisted that the object was "a toy gun", or did not knowingly involved in real "firearms", it was up to the new standard and was to gun-related crimes be investigated for criminal responsibility, part of the administration of Justice and therefore suffered public concern.
"From the case to the Prosecutor's Office of public security arrested and convicted by the courts, a line well in such cases into criminal cases, judicial officers stereotyped application of law, hence ' gun crime '. "China University criminal justice Professor Ruan qilin believes that when the legal anomaly, should give more consideration to social common sense, human nature," justice should not be too sharp, a punishment contrary to common sense. "
Analysis of Beijing Polytechnic University School of law Professor Xu Xin pointed out that changes based on the standard firearms, "fake gun crime" cases generally shows three major characteristics: there are no victims; second, who were mostly army fan player or small businessmen in the family; the third is involved into the criminal, completely beyond the personal and public expectations.
People Police University Professor Chen Zhijun had in national prosecutor College journal Shang wrote calls for, currently on guns crime of criminal legislation, and judicial explained and other normative file should implement "wide strict phase Chai" criminal policy of spirit, put combat of focus put in has larger lethality of guns Shang, for lethality smaller of was General as toy of guns in filed standard, and sentencing weight Shang, are should insisted "caution penalty" of principles.
Standard gun indent 1/10, or save them "mechanical enforcement"
Many experts believe that in recent years, "fake gun crimes" are key reasons, is the standard of firearms significantly indented.
"The original standard illegal bullet in question were critical, standards after the slash should be adjusted accordingly on criminal sentencing standards. "Ruan qilin said, standards not in accord with standards of criminal convictions, makes justice more clearly exposed.
On August 17, 2001, the Ministry of public security published by public security authorities in connection with the performance of firearms ammunition identification regulations (hereinafter referred to as the regulations). The document provides, for a non-standard firearm cannot emission standard bullets, identification according to the following criteria: put the muzzle from 25.4mm thick dry pine Board 1 m shot, bullets penetrating the pine Board, shall be deemed to be sufficient to cause death; bullet or shrapnel stuck on the pine Board, is considered sufficient to cause harm. With this one of the two cases, identified as firearm.
In October 2007, the forensic science of the Ministry of public security published the firearms injury criterion (SAC recommended industry standard filing), article 3.2 provides that "caused no casualties of non-standard firearm injury criterion into the muzzle than the kinetic energy of ≥ 1.8 joules per square centimeter", casualties are treated as firearms.
In December 2010, the Ministry of public security said the regulations had been amended. Amendments also made clear the muzzle than the kinetic energy of the regulations as a basis for found injured by firearms, whether: "when the muzzle of the weapon than when the kinetic energy greater than or equal to 1.8 joules per square centimeter, are identified as firearm. "
This means "shooting method of dry pine Board" had been completely abolished. "Based on the shooting method of dry pine Board, identified as critical point of identification for firearm injury force is 16 joules per square centimeter. "Chen Zhijun believes that judicial practice in China to abandon the" shooting method of dry pine Board "changed" method of measuring muzzle than the kinetic energy ", standards point directly from the muzzle than the kinetic energy 16 joules per square centimeter down to 1.8 joules per square centimeter, fell by nearly 10 times.
Chen Zhijun believes that these changes in recent years that many gun-related cases, the Party insisted that "toy guns" and judiciary are identified as "firearms" differences causes of criminal prosecution.
According to Professor Xu Xin introduced over the past three years, every year there are a number of people and because of this change the sentence for the crime in question, "behind the devastation of many families. "
Why is there this phenomenon? Lao Dongyan, a professor at Tsinghua University law school said that in judicial practice, universal gun case "mechanical law enforcement, administration of Justice".
Lao Dongyan said gun concept should be "limited" and that generally speaking, the gun itself should have a probability of resulting in serious injury or death, if the case does not have firearms in lethality, coupled with the lack of clear perception, based on existing jurisprudence cannot be convicted.
Lao Dongyan believes that case decisions, judicial personnel, taking into account the decision itself on the value judgment of rationality and social acceptability.
Experts: do not change the standard should also adjust the accountability consequences
In China, where gun control has always been tough, reflect on the conviction is abstract dangerous crimes (committed). "Not to standards of what the consequences of a conviction, sentencing is also more severe. "Ruan qilin said.
Surging News noted, China's criminal law, firearms offences as serious crimes against public security and illegally manufacturing, trading in, transporting, mailing, storage of firearms, the two sentences for the offence of "3 to 10 years ' imprisonment" and "10 years of fixed-term imprisonment, life imprisonment or the death penalty."
"Firearms identification, there are many problems, we should think seriously about firearms, the legitimacy of existing standards. "Xu Xin said that the muzzle than 1.8 joules of kinetic energy per square centimeter is what? It has very low lethality, "this standard is the Firearms Act and penal code identified in an expanded interpretation of the firearms, conflict with the upper law. "
However, in practice, standard on firearms are generally cited standards set by the Ministry of public security. Lao Dongyan said the problem is that security is for general maintenance of law and order, criminal law is based on crimes against public security regulations, pay attention to the protection of the right to health of others or the right to life.
"Owing to the different protection purposes, much to distinguish between the criminal law of firearms and firearm identification on the administrative law standard, both with different interpretations. "Lao Dong Yan says.
"The public security department-related firearm identification standards should be full consideration of public safety, which is understandable. "Ruan Qi said, guns for sale, possession of lethal or non-lethal, non-crime penalties should be, should not be a criminal disposition.
Meanwhile, Ruan qilin also stressed that currently cannot easily talk to change standard firearms, "firearm standards if it is not appropriate to amend, may need to consider the consequences of adjusting the legal accountability level, such as divided into illegal and criminal penalties for public security, so as to avoid extended punishment trends. "
Chen Zhijun's specific recommendations are should be added to "minor, sentenced to 3 years imprisonment, criminal detention or public surveillance", "this relatively light sentence, and lesser gun-related crimes of suiting penalty to adaptation. " Release news TPP sadly China will lead Asia Pacific
Chen Zhijun further proposed that the administrative law standards can still maintained existing standards unchanged, but raising criminal firearm identification threshold to 15 joules per square centimeter, a revision of the standard.
"Propose to improve the existing firearm identification standards, should at least back to 2010 rules, use ' wounded skin up close ' standard, standard firearms should be considered reasonable. "Xu Xin said, in addition, also should be a clear distinction between the conviction and sentencing of the imitation guns and real guns," specific firearm identification cannot be handed over to the public security Department on its own, to ensure the neutrality of the report. "
"The Franco-German station"
Article 125th "illegally manufacturing, trading in, transporting, mailing and storage of firearms, ammunition, explosives offences, illicit manufacturing, trading in, transporting, or storing dangerous substances crimes" illegally manufacturing, trading in, transporting, mailing, storage of firearms, ammunition, explosives, shall be sentenced to imprisonment between three to ten years in serious cases, imprisonment of at least ten years, life imprisonment or the death penalty.
128th "illegally holding or hiding a firearm or ammunition, illegally lease or loan firearms" in violation of firearms control regulations, illegally holding or hiding a firearm or ammunition, and three years imprisonment, criminal detention or public surveillance; the circumstances are serious, shall be sentenced to imprisonment between three to seven years.
130th "illegal possession of guns, ammunition, controlled knives, dangerous articles to endanger public security" illegal possession of guns, ammunition, controlled knives or explosive, inflammable, radioactive, poisonous or corrosive materials, access to public places or on public transport, endangering public safety, if the circumstances are serious, to three years imprisonment, criminal detention or public surveillance.
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