A toy gun criminal case "restarted"
Is this a toy or a gun
On September 12, in Linyi City, Shandong Province, Jing Anpeng's son is holding a toy gun left by his father.
All photos in this edition are taken by China Youth Daily and China Youth Daily reporter Geng Xueqing/
In 2018, the Supreme People's Court and the Supreme People's Procuratorate issued the "Reply on the Conviction and Sentencing of Criminal Cases Involving Compressed Gas-powered Guns and Airsoft Lead Bullets."
The reply pointed out that when deciding whether to pursue criminal responsibility and how to determine penalties, not only should the number of guns involved in the case be considered, but also the perpetrator’s subjective perception, motivation and purpose, consistent performance, illegal gains, and whether to evade investigation should be fully considered. Assess social harm.
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At first, it was a small business related to toys.
Li Xiulan, the owner of Guowei Toys Store in Qingzhou City, Shandong Province, bought a batch of toy guns from Linyi wholesaler Jing Anpeng at a price of 290 yuan each, and sold them at a price of 400 yuan each.
The bullet of this toy gun is a "BB bullet" made of plastic. According to customer Dong Bingbing's later recollection in court, he used it to "play bottles and birds on the nearby mountains. It broke down after less than two weeks." ".
Then, in a law enforcement operation in 2013, the police seized 20 such toy guns, 15 of which were identified as guns.
Therefore, Jing Anpeng, Li Xiulan and two other customers took to the dock.
In this case involving 4 people in July 2014, the Qingzhou City People's Court sentenced them to varying degrees of punishment for the crime of illegally buying and selling firearms and illegal possession of firearms.
Among them, the sentences of Jing Anpeng and Li Xiulan are 10 years, which will expire in 2023.
But since the day of the judgment, they have not stopped appealing.
Today, Li Xiulan’s complaint has been responded to-on September 16 this year, the Qingdao Intermediate People’s Court confirmed to the China Youth Daily and China Youth Daily reporter that under the order of the Shandong Higher People’s Court, the court will retrial Li Xiulan for the crime of illegally buying and selling guns. case.
This is another gun crime case triggered by a toy gun that has been given a chance to be retrial in recent years.
On September 12, Yongxing International Toy City, Linyi City, Shandong Province.
Jing Anpeng had done business here before the incident.
Willing to "use the body to experiment"
It is reported that the retrial will be held in the women's prison where Li Xiulan is serving his sentence on September 24.
Li Xiulan's family and attorney declined the interview.
Her husband Guo Qiang simply said that Li Xiulan had toy guns on the shelves back then. After her imprisonment, her family was greatly affected.
Another party in the same case, Jing Anpeng, is also waiting for this retrial.
Over the past few years, his brother Jing Anbang has been trying to prove that Jing Anbang sells toys instead of "guns."
On July 8, 2014, when they heard the toy gun was identified as a gun in the court, the Jing brothers were emotional.
They were born in rural areas and had little education. They could not understand professional terms such as gun-specific kinetic energy and Joule.
In the court, they yelled for "experiment with the body", "shoot us with those guns and see if they are real guns."
On September 14 this year, when interviewed by a reporter from China Youth Daily and China Youth Daily, Jing Anbang admitted that he was a little agitated at the time, "cannot accept that his brother will be sentenced to 10 years in prison for selling toy guns."
He emphasized to reporters that it was a toy gun by "experimenting".
"Bang, bang, bang--" In the yard of his hometown in Yushan Village, Yushan Town, Linshu County, Linyi City, he picked up a "gun" and hit his arm several times. After the "BB bullet" bounced off, he was hit Several red spots appeared on her skin and disappeared immediately.
"It's nothing, don't mention the injury." He said, this is one of the toy guns left by Jing Anpeng when he was doing business, but it was not taken away by the police because of damage.
For 7 years, Jing Anbang has been blaming himself, thinking that he has sent his brother to prison.
"It's just a few toy guns, confiscated at most, and it will be fine for a few days." On August 19, 2013, Jing Anbang persuaded his brother to surrender himself, and then drove him to the Qingzhou City Public Security Bureau in Shandong Province.
At the age of 25, Jing Anpeng ran the Xinpeng toy store in the Yongxing International Toy City of Linyi City, which is one of the largest distribution centers of China's toy wholesale industry.
Around 2004, after graduating from Jing Anpeng Technical Secondary School, he worked here until he had a house of more than 10 square meters.
The Qingzhou police found here by following the vine.
The first incident was Li Xiaohai, a farmer in Qingzhou, who sold toy guns through social networks and attracted the attention of the police.
His source comes from Li Xiulan, and further up is Jing Anpeng.
On September 12, a merchant in Yongxing International Toy City who requested anonymity told reporters that before 2013, many merchants in the market who sold such toy guns were “willing to sell products that go fast.”
He said, "At that time, online shooting games were very popular, and most of them were bought by young boys who liked it."
This merchant has also been investigated and dealt with by the public security organs for selling toy guns.
On September 12, in Linyi City, Shandong Province, Jing Anpeng's father was in front of the toy left by his son.
After Jing Anpeng was arrested, the inventory of toys was transported back to his hometown wedding room and piled up to this day.
Changes in identification standards
Jing Anbang remembered that when his younger brother was in jail, he went to visit the prison, and the younger brother in the glass wall cried to him with the phone, "Brother, selling a dozen toy guns is sentenced to 10 years, which is too wrong."
Jing Anbang clenched his fist and promised his younger brother that he would "redress grievances."
He graduated from junior high school and worked in the county for a long time. He couldn't understand how a toy gun became a gun.
Zhou Yuzhong, a lawyer who represented many fake gun cases, acted for Jing Anpeng's case after seeing Jing Anbang's request for help on the Internet.
He believes that the core of the case is why the toy gun can be identified as a real gun.
The key evidence for the court decision is the "Firearm Appraisal Certificate" issued by the Criminal Science and Technology Institute of Weifang Public Security Bureau, and the appraisal standard is determined by the Ministry of Public Security.
In 2010, the Ministry of Public Security issued the "Regulations on the Performance Appraisal of Firearms and Ammunition Involved by the Public Security Organs". For non-standard guns that cannot fire standard ammunition, when the specific kinetic energy of the fired projectile is greater than or equal to 1.8 joules/cm², it is regarded as a firearm.
"Muzzle specific kinetic energy" is a key indicator to measure the damage caused by guns.
According to the appraisal, the specific kinetic energy of the muzzle of 15 toy guns is between 4.13 joules/square centimeter and 11.95 joules/square centimeter.
The focus of Zhou Yuzhong's defense mainly revolved around whether this standard could determine whether the gun-shaped object involved in the case possessed the nature of a gun in the sense of criminal law.
The guns mentioned in the Gun Control Law refer to all kinds of guns that use gunpowder or compressed gas as the power to shoot metal projectiles or other substances with tubular devices, which are enough to cause casualties or loss of consciousness.
In 2018, the Criminal Division of the Research Office of the Supreme People's Court stated in a written statement that since the Gun Management Law only clarifies the performance characteristics of guns, in practice, the handling of cases has always followed the gun identification standards set by the public security department.
According to the "Regulations on the Performance Appraisal of Firearms and Ammunition Involved by the Public Security Organs" issued by the Ministry of Public Security in 2001, the standard for gun appraisal is that the specific kinetic energy of the muzzle is about 16 Joules/cm².
Later, based on the need to strictly control guns, and the standard itself is flawed, the Ministry of Public Security issued new regulations in 2010 to lower the identification standard to 1.8 Joules/cm².
The Criminal Division of the Research Office of the Supreme People's Court stated that the relevant cases were handled according to the standard of the gun's specific kinetic energy of about 16 joules/square centimeter, which did not cause problems and disputes.
"After the above adjustments to the gun identification standards, in recent years, gun-related cases have shown diversity and complexity. In particular, some cases involving guns that use compressed gas as the power and have lower muzzle energy are involved. The power of causing injuries is relatively low. When deciding whether to pursue criminal responsibility and adjudication of penalties, only the number of guns is used. This may deviate from the general public’s perception and violate the requirements of the principle of compliance with crime, responsibility and punishment. In judicial practice, the handling of individual cases It has caused widespread concern from all walks of life, and the legal and social effects are not good."
Chen Zhijun, a professor at the School of Law of the People’s Public Security University of China, noticed the impact of this reduction in 2013.
"The identification threshold was significantly reduced to approximately one-tenth of the original standard. A large number of defendants insisted that the object of the act was a'toy gun', but because they were identified as meeting the new identification standard, they were accused of It is difficult for the public to approve cases of criminal responsibility for gun crimes.” In the same year, Chen Zhijun said in his paper "Criminal Law Analysis of the Rapid Change in Firearms Identification Standards" that a number of studies at home and abroad identified the critical point of guns as having the power to cause injuries. It is 16 joules/square centimeter.
He believes that "a projectile with 1.8 joules of specific kinetic energy is far from penetrating human skin, and a specific kinetic energy that cannot penetrate human skin is inappropriate as a standard for human damage."
In the case of Jing Anpeng and others, according to Zhou Yuzhong's recollection, "In fact, the court of first instance also confused the concepts of simulated guns and guns, and there were contradictions."
One fact found in the first-instance judgment is that Jing Anpeng sold a fake gun to Li Xiulan.
Based on this, Zhou Yuzhong believes that the court found that the sale of simulated guns should be acquitted, "because the sale of simulated guns does not constitute a crime."
According to the relevant provisions of the Gun Management Law, anyone who sells imitation guns may be warned or sentenced to administrative detention for less than 15 days.
“The court of first instance convicted Jing Anpeng for the crime of illegally buying and selling guns, and the gun-shaped object involved should be determined to be a gun rather than a simulated gun.” Zhou Yuzhong believed that, “6 months after the trial of the case by the first-instance court, even the concept of simulated guns and guns It’s not clear about the difference, let alone Jing Anpeng who is a caomin."
The Weifang City Intermediate People's Court conducted a second instance of this case, and the final criminal ruling changed the term "simulated gun" in the first instance judgment to "gun-shaped object".
However, the original verdict was upheld in the second instance.
Sentence varies
In recent years, the handling of toy dealers' gun-related cases varies greatly from region to region.
When Zhou Yuzhong first defended Jing Anpeng, he pointed out that the Shantou District Court in Guangdong, where the toy gun was produced, imposed a very light penalty on the large number of producers involved in illegal business operations.
"The most profitable producer does not constitute the crime of illegally manufacturing firearms, but the sale of it constitutes the crime of illegally buying and selling firearms."
In 2012, the Procuratorate of Daxing District, Beijing, had "no prosecution in doubt" against two toy dealers "involving guns."
Among them, a couple sold toys at a farmer’s market. 18 toy guns with a specific kinetic energy of 1.8 joules/square centimeter or more were identified as guns.
This case is similar to the case of Jing Anpeng and Li Xiulan.
At that time, the prosecutor handling the case of the Daxing District Procuratorate stated in an interview that the identification of toy guns as guns in the sense of criminal law is only one of the elements of the objective aspect of the crime. Whether the perpetrator should bear criminal responsibility or not must analyze his subjective crimes. "No crime means no crime".
Judging from the places where the couple bought and sold the guns, the price, and the appearance of the guns, it is difficult to conclude that the two knew that these guns were guns in the sense of criminal law.
On the evening of October 12, 2016, 51-year-old Tianjin native Zhao Chunhua was arrested by the police while setting up a balloon shooting booth.
A total of 9 gun-shaped objects involved in the case were seized at the scene, and 6 guns were later identified as guns.
On December 27, 2016, she was sentenced to three years and six months' imprisonment by the People's Court of Hebei District, Tianjin City for illegal possession of firearms in the first instance.
The sentence of "Tianjin aunt for setting up a balloon shooting booth" caused great public concern. Later, Zhao Chunhua was sentenced to three years and suspended for three years.
Two high-tech approvals
Nearly 4 years after Jing Anpeng and Li Xiulan were sentenced, on March 28, 2018, the Supreme People’s Court and the Supreme People’s Procuratorate issued the "Reply on the Conviction and Sentencing of Criminal Cases Involving Compressed Gas-powered Guns and Airsoft Lead Bullets." .
One background to this move is that in recent years, some high-level people’s courts and provincial-level people’s procuratorates have dealt with how to illegally manufacture, trade, transport, mail, store, possess, conceal, and smuggle compressed gas-powered guns and air gun lead. The issue of impeachment conviction and sentencing is requested for instructions.
The Supreme People’s Court and the Supreme People’s Procuratorate pointed out that the illegal manufacture, sale, transportation, mailing, storage, possession, possession, smuggling of guns powered by compressed gas and with lower muzzle kinetic energy should be investigated for Criminal liability and how to determine penalties should not only consider the number of firearms involved, but also the appearance, material, projectiles, places and channels of purchase, price, purpose, damage caused by the firearms involved, and whether the firearms can be easily improved through reforms. Injury, as well as the perpetrator’s subjective cognition, motivation and purpose, consistent performance, illegal gains, whether to evade investigation, etc., comprehensively evaluate the social harm, adhere to the unity of subjective and objective, and ensure that the crime, responsibility and punishment are compatible.
In 2014, fake gun businessman Huang Qiming was sentenced to 15 years in Jinan for the crime of illegally buying and selling guns.
After the approval of the Supreme People's Court and the Supreme People's Procuratorate in 2018, Huang Qiming was given a revised sentence and exempted from criminal punishment.
"This reply is not a new legislative regulation, but a reminder of the principles of judicial organs handling related cases." A legal person familiar with the toy gun case told reporters.
This legal person, who requested anonymity, told reporters that even after the 2018 Supreme People’s Court and the Supreme People’s Procuratorate’s approval, convictions for similar acts are still common, but the sentencing is lighter than before, but this kind of law The evaluation is still unfair. "The criminal law should adhere to the principle of unity of subjectivity and objectiveness. The conviction should not mechanically only examine the value of the gun-shaped object, otherwise it will easily lead to misjudgment, and'punishment without teaching' will not achieve good social effects. "
The person said that in the long run, it is necessary to study whether the 1.8 joule/square centimeter standard is feasible and applicable to criminal trials. At the same time, it is necessary to avoid frequent criminal investigations and serious crimes. Some cases can actually be punished by public security.
When Zhou Yuzhong defended Jing Anpeng, he emphasized that "Jing Anpeng had no subjective intention to buy or sell guns."
He believes that Jing Anpeng opened a toy store in the toy market to engage in legitimate business activities.
From the perspective of its sales form, they are all carried out in the normal logistics mode. "The real illegal firearms trading activities are much more secretive, and the goods will never be sent through logistics. The profit from selling the gun-shaped objects involved in the case is very small. The benefits of buying and selling toys are the same."
He also believes that this case is clearer than ordinary criminal cases because "there is no victim and no direct social harm is caused."
Zhou Yuzhong has been concerned about toy gun cases and simulation gun cases for many years.
He believes that these defendants who bought, sold, and used imitation guns were mostly used for small businesses or entertainment games. They were repeatedly sentenced to imprisonment and even sentenced to more than 10 years or even life imprisonment, which is even more "destroying" for the families of the parties involved. Disaster".
Before Jing Anpeng was arrested, he was scheduled to get married that year. His son Jing Xiaohe (a pseudonym) had just passed two months.
After two years of waiting, the fiancee returned to her hometown and left the child to Jing Anbang to take care of.
In 2018, Jing Anbang's wife couldn't stand Jing Anbang's "devilish" complaint for her younger brother and ran away from home, leaving behind a pair of 4-year-old children.
Different trials in the same case?
Over the past seven years, Jing Anbang has taken care of three children while studying law by himself, appealing to the court and procuratorate level by level, and seeking social help. After the Tianjin Zhao Chunhua case was commuted, he also learned from Zhao Chunhua's family.
Li Xiulan's appeal was successfully retrial, and he felt that "the light was finally seen."
The Shandong Provincial Higher People's Court issued the retrial decision on January 16, 2019.
However, the staff of Qingdao Intermediate People's Court involved in handling the case stated that "only Li Xiulan will be heard in court, and Jing Anpeng is not required to participate in the trial, and the trial can be arraigned out of court."
For this reason, Jing Anpeng’s current lawyer and Beijing Weiheng Law Firm Yin Liangjun submitted to the Qingdao Intermediate People’s Court the "Legal Opinions Regarding Jing Anpeng's Joint Retrial or Joint Postponement of the Trial" to the Qingdao Intermediate People’s Court. Li Xiulan's plan for a court retrial is not satisfactory. It is suggested that all the defendants in the original trial, especially Jing Anpeng, should hold a court retrial together with Li Xiulan.
Yin Liangjun said that the reason why the Shandong Higher People's Court decided to retry the case was that "the original judgment found that the defendant Li Xiulan in the original trial constituted the crime of illegal firearms sale. The evidence was not really sufficient."
Objectively speaking, the gun-shaped objects that Li Xiulan bought and sold were all from Jing Anpeng. In other words, the gun-shaped objects that Li Xiulan bought and sold were the same batch, the same quantity, and the same model. "Fake and share fake", it is impossible for Li Xiulan to buy toy guns while Jing Anpeng sells real guns, and there is no possibility that Li Xiulan “the evidence is not really sufficient” and Jing Anpeng “the evidence is indeed sufficient”.
A staff member of the Qingdao Intermediate People's Court explained that because the two were detained in two prisons, "technically it is impossible to hold courts at the same time", they would conduct a remote video arraignment for Jing Anpeng.
"There is no problem with the facts of this case, mainly the application of law. It does not matter if the defender does not arrive, and it does not matter if the defender does not arrive. You can submit a written defense opinion." The staff member said that this form does not affect the handling of Jing Anpeng, although Shandong Province The High People’s Court ordered the retrial of Li Xiulan, but it will conduct a review of the whole case. “If the case changes in the future, it is a change in the whole case. All defendants will “free ride”. It is not Li Xiulan’s problem.
Yin Liangjun believes that the fact that Jing Anpeng is only arraigned out of court is actually depriving him of his litigation rights and is suspected of procedural violations, which will also affect the identification of relevant facts about Jing Anpeng and Li Xiulan.
This type of case is of great concern to the society, and it is necessary for a comprehensive and public trial according to law.
After the Shandong Higher People's Court ordered the retrial of the Li Xiulan case, affected by the new crown pneumonia epidemic, on March 12 this year, the Qingdao Intermediate People's Court once ruled that the case was suspended due to irresistible reasons.
The ruling stated that the parties involved in the case included Jing Anpeng, Li Xiulan, Li Xiaohai, and Dong Bingbing.
"It can be seen that the above four persons have been clearly listed as parties in the same case by the effective judgment of the Qingdao Intermediate People's Court." Yin Liangjun said that since it was suspended at the same time, it should now be resumed at the same time. "There is no longer a trial of Li Xiulan alone. The reason why An Peng, Li Xiaohai and Dong Bingbing threw aside."
In response, the Qingdao Intermediate People’s Court replied to a reporter from China Youth Daily and China Youth Daily that the Court will reasonably arrange the opening of the trial based on the retrial decision, the actual situation of the case, the epidemic situation and the detention of the defendant. The trial of the case will not be affected by the absence of some parties."
Yin Liangjun said that he will be in the same direction as the defense of the first and second trials: defending Jing Anpeng's innocence.
According to the original ruling, Jing Anpeng will be released after serving his sentence on August 18, 2023.
But Jing Anbang said that even then, he will continue to appeal with his younger brother, repay his younger brother's "innocence", and give his nephew an confession, "If it is a real gun, we will recognize it even if it is a life of 10 years, but toys We won’t admit to death after 10 years of gun sentence."
Jing Xiaohe has been living with his uncle after his father's accident.
He once accompanied Jing Anbang to the prison to visit Jing Anbang.
Jing Anbang lied to him and said, "Your father is here as a soldier."
Last year, 5-year-old Jing Xiaohe suddenly said to Jing Anbang, "You love to lie to children." He said, "My father is not a soldier. He is in jail. Why should I look at me through the glass? Why can't you come and hug me?"
After speaking, the little boy fell onto the bed and sobbed.
In the paper published in the Journal of the National Prosecutors College in 2013, Professor Chen Zhijun reminded law enforcement officials to change their positions-when everyone took off their police uniforms, prosecutors’ uniforms or robes and returned home, if the family members also gave them When a child bought a few plastic toy guns from the small commodity market, he was suspected of gun crime. “This is obviously not the public security that we intend to pursue through criminal legislation and criminal justice. It is not conducive to social harmony and violates the rule of law to pursue social welfare. The original intention".
China Youth Daily and China Youth Daily reporter Geng Xueqing Source: China Youth Daily