Guiding Opinions on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Robbery

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Notice of the Supreme People's Court on Issuing the Guiding Opinions on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Robbery


· Document Number:No. 2 [2016] of the Supreme People’s Court

· Area of Law: Criminal Law

· Level of Authority: Documents of Judicial Interpretation Nature

· Date issued:01-06-2016

· Effective Date:01-06-2016

· Status: Effective

· Issuing Authority: Supreme People's Court

 

Notice of the Supreme People's Court on Issuing the Guiding Opinions on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Robbery 
(No. 2 [2016] of the Supreme People's Court)
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government; the military courts of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region:
The Guiding Opinions on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Robbery is hereby issued for your conscientious implementation. Any problems encountered during the implementation shall be reported to the Supreme People's Court in a timely manner.
Supreme People's Court
January 6, 2016
Guiding Opinions on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Robbery
Robbery is a frequently committed crime that infringes upon the personal rights of citizens. After the Criminal Law (1997) is amended, the Supreme People's Court has issued the Interpretations on the Several Issues concerning the Specific Application of Law in the Trial of Robbery Cases (hereinafter referred to as the Interpretations on Robbery) and the Opinions on the Application of Law in the Trial of Criminal Cases of Robbery or Forcible Seizure (hereinafter referred to as the Opinions on Robbery or Forcible Seizure), which has prescribed the application of law in robbery cases and has played a significant guiding role. However, criminal cases of robbery are increasingly complex. Therefore courts at all levels continuously encounter new situation and problems during the process of trial. For the uniform application of law, under the provisions of the Criminal Law and the judicial interpretations, the following guiding opinions on several prominent problems on the application of law and understanding of criminal policies in the trial of criminal cases of robbery are hereby offered, in combination with the experience of people's courts in the trial of robbery cases over the years:
I. Basic requirements on the trial of criminal cases of robbery
The criminal policy of combining punishment with leniency shall be implemented persistently. Those who commit gang robberies repeatedly against left-behind women, children, and senior citizens in rural areas and commit rapes and other violent crimes shall be subject to severe punishment within the sentencing range prescribed by law.
For robbery criminals who have committed serious crimes, relevant standards shall strictly apply to commutation and parole and the range and frequency of commutation shall be strictly controlled. Those who commit robberies for the first time for medical care of their family members and other specific reasons, with serious subjective malice and relatively minor criminal offense, shall be distinguished from those who repeatedly commit robberies for squander, gambling, and taking drugs, among others in sentencing. Those who have relatively minor criminal offense, statutory mitigating circumstances, factors for consideration of lighter punishment, or circumstance for mitigated penalty shall be given lenient punishment according to the law.
The trial quality of cases shall be guaranteed. Criminal cases of robbery shall be tried strictly under the principle of evidence-based adjudication, to ensure that facts are ascertained and evidence is conclusive and sufficient. Especially for anyone who may be sentenced to a death penalty, the Criminal Procedure Law, relevant judicial interpretations, and judicial documents shall be more effectively implemented, and review for judgment and application of evidence shall be conducted in strict accordance with the law, to effectively prevent misjudged cases.
For criminal cases of robbery to which death penalty is applicable, the criminal policy of “preserving death penalty but controlling death penalty strictly and applying death penalty prudentially” shall be insisted on, to ensure that death penalty shall be only applicable to a very small number of criminals who have committed extremely serious crimes. A criminal sentenced to death penalty with a two-year suspension of execution may be concurrently subject to restrictions on commutation, in light of the circumstances of the crime.
II. Determination of aggravating circumstance under which a severer punishment shall be imposed for robbery
1. When determining “intruding into another person's residence to rob,” attention shall be paid to the review of an offender's purpose of “intruding into another person's residence” and “intruding into another person's residence to rob” shall be distinguished from “robbery indoors.” Robbery committed after intruding into another person's residence for the purpose of infringing upon the personal life and property of people indoors, including robbery transferred from intruding into another person's residence to steal and swindle, and other crimes shall be determined as “intruding into another person's residence to rob.” A robbery committed by an actor who is allowed to enter another person's residence for visiting friends, handling affairs, and other reasons upon abrupt intention therein or transformed from theft, fraud, and other crimes that are committed upon abrupt intention shall not be determined as “intruding into another person's residence to rob.”
A robbery committed by an actor by breaking into another person's residence to rob or lying to open the door in the disguise of shopping or other excuses during non-working hours at a place which is used for operation part of the time and for living part of the time shall be determined as “intruding into another person's residence to rob.” A robbery committed by an actor by entering into a life area in a place which is used for operation part of the time and for living part of the time with specific isolation shall be determined as “intruding into another person's residence to rob.” A robbery committed during working hours in a place without specific isolation shall not be determined as “intruding into another person's residence to rob,” but a robbery committed during non-working hours therein shall be determined as “intruding into another person's residence to rob.”
2. “Public means of transportation” include all kinds of buses, medium and large-sized taxies, trains, subways, light railways, ships, and aircrafts, among others, engaged in passenger transport, excluding small-sized taxies. Medium and large-sized means of transportation without a commercial operation license, but actually engaged in passenger transport may be determined as “public means of transportation.” Shuttle bus of entities for picking up employees, school buses for picking up teachers and school, and other medium and large-sized means of transportation shall be determined as “public means of transportation.”
“Robbery in public means of transportation” not only includes robbery committed against passengers, driver and ticket sellers, and crew members in a public means of transportation in operation state, but also includes robbery committed against passengers, driver and ticket sellers, and crew members in a public means of transportation intercepted on its way of operation, excluding robbery committed against driver and ticket sellers, and crew members in a public means of transportation in non-operation state. A robbery committed against specific people in a public means of transportation by violence, coercion, anesthesia, or other means shall be generally determined as a “robbery in public means of transportation.”
3. “Large value of booty” shall be determined under the standards of all localities for determining large value of booty in a crime of theft. The value of booty shall be based on the actual amount of property robbed. An offender who specifically aims at robbing booty of large value, but fails to rob any property or actually robs booty of small value for reasons other than his or her will shall be simultaneously determined as falling under the circumstances of “large value of booty” and attempted offense, and shall be sentenced under the relevant provisions of the Criminal Law and in light of the handling principles for a person who attempts to commit a crime.
Under the provision of paragraph 1 of Article 6 of the Opinions on Robbery or Forcible Seizure, where anyone robs any credit card for use or consumption, the actual amount as used or consumed shall be the value of booty. The amount unable to be actually used or consumed for reasons other than the will of an actor shall be taken into consideration as a sentencing circumstance, though not included in the value of booty. Where anyone robs property through bank transfer or electronic payment, mobile banking, and other payment platforms, the actual amount as acquired shall be the value of booty.
4. To determine “committing robbery posing as servicemen or policemen,” such circumstances as whether an actor wears police uniform and carries a gun, and whether he or she produces a certificate of serviceman or policeman shall be comprehensively reviewed, to determine whether the actor is sufficient to make others mistakenly assume that he or she is a serviceman or policeman. Whether a robbery committed by an actor who only wears clothes similar to those of serviceman or policeman, without taking any gun or producing any certificate of serviceman or policeman, is to be determined as “committing robbery posing as servicemen or policemen” shall be determined with consideration to the specific circumstances of the robbing place, time, violence, or threat, under the standards of making judgment as an ordinary person.
A serviceman or policeman who commits robbery by taking advantage of his or her true identity shall not be determined as “committing robbery posing as servicemen or policemen” and shall be punished severely according to law.
III. Determination of the crime of transformed robbery
Under the provisions of Article 269 of the Criminal Law, “whoever commits the crimes of theft, fraud, or forcible seizure, and uses violence, or threats to use violence, at the scene in order to conceal booty, resist arrest or destroy criminal evidence,” shall be convicted and punished for the crime of robbery. “Committing the crimes of theft, fraud, or forcible seizure” mainly means that actors have started to commit theft, fraud, or forcible seizure, for which whether the offenses of theft, fraud, or forcible seizure have been accomplished is generally not reviewed. Where the value of booty involved is significantly lower than the standard of “large value” and the circumstance does not fall under one of the five circumstances listed in Article 5 of the Opinions on Robbery or Forcible Seizure, a crime of robbery is not constituted. “At the scene” means that an actor is found or arrested by others at the scene of theft, fraud, or forcible seizure and when he or she just leaves the scene.
Anyone who escapes from arrest by getting rid has relatively small violence intensity and has not caused consequences serious than minor injuries may not be determined as “using violence” and shall not be punished for the crime of robbery.
Where anyone uses violence, or threats to use violence, at the scene of another person's residence or a public means of transportation in order to conceal booty, resist arrest or destroy criminal evidence, after committing the crimes of theft, fraud, or forcible seizure, by intruding into another person's residence or in a public means of transportation, “intruding into another person's residence to rob” or “robbery in public means of transportation” is constituted.
Where two or more persons jointly commit the crimes of theft, fraud, or forcible seizure theft, and some actors use violence or threat to use violence, at the scene in order to conceal booty, resist arrest or destroy criminal evidence, whether the remaining actors are to be punished for the crime of robbery mainly depends on whether they have the will of jointly committing the crimes or provide assistance for the actors using violence or threating to use violence. Anyone who provides assistance for or actually becomes an accomplice of an actor who uses violence or threats to use violence, based on contract under certain meaning may be punished as a robbery accomplice.
IV. Application of penalties under eight statutory circumstances where severer punishment is to be imposed
1. Under the provisions of Article 263 of the Criminal Law, “those causing serious injuries or death to others while robbing” or falling in other seven statutory circumstances where severer punishment is to be imposed shall be sentenced to 10 years or more in prison, given life sentences, or sentenced to death, in addition to fines or confiscation of property. Specific penalty shall be determined according to the frequency of robbery, the value of booty, damage of robbery to human body, harm to public security, and other circumstances, in combination with the subjective malice and the degree of personal danger, under the relevant provisions of standardization of sentencing. Anyone who is sentenced to life imprisonment or a heavier punishment shall generally be concurrently subject to a forfeiture of property.
2. Under any of the following circumstances, an offender may be sentenced to life imprisonment or a heavier punishment:
(1) He or she causes serious injuries to more than three persons or causes serious injury or serious disability while robbing.
(2) He or she deliberately murders others, causes intentional injury to others, or causes death to others while robbing.
(3) He or she has more than 2 circumstances for imposing severer punishment other than “causing serious injuries or death to others while robbing” or commits especially large number of robberies or robs especially large value of booty.
3. Whoever premeditates to intentionally murder anyone for robbing property or murders victims for subduing resistance of victims or resisting arrest while robbing property, and does not falls under any statutory circumstance where a lenient punishment shall be imposed may be sentenced to immediate execution of death penalty according to the law. Competent authority shall be cautious when sentencing whoever voluntarily surrenders himself or herself, has meritorious act, or falls under any statutory circumstance where a lenient punishment shall be imposed to immediate execution of death penalty. Where anyone commits robbery and causes death to others by means other than intentional murdering, the degree of a defendant's subjective malice shall be analyzed from the motive for the crime, premeditation, committing action, and other respects, and the level of a defendant's personal risk shall be judged from whether he or she has criminal records, his or her previous performance, pleading guilty and repentance, and other respects. Sentencing anyone who causes the consequence of death to a victim to immediate execution of death penalty without distinguishing shall not be allowed.
4. Death penalty shall be applicable to anyone who cases serious injury to others more cautiously and strictly. Generally immediate execution of death penalty shall not be sentenced, except when extremely cruel means are taken, thus causing serious disability and other particularly adverse circumstances, or especially serious consequences to victims.
5. Whoever falls in other seven statutory circumstances where severer punishment is to be imposed other than “causing serious injuries or death to others while robbing” and commits a crime in a particularly abominable way with particularly serious consequences under the provisions of Article 263 of the Criminal Law may be sentenced to immediate execution of death penalty according to the law. The determination of “committing a crime in a particularly abominable way with particularly serious consequences” shall be strictly controlled and death penalty shall be applied extremely cautiously and strictly.
V. Application of penalty for joint crime of robbery
1. In the trial of a joint criminal case of robbery, the circumstances and consequences of common crime, the role of joint offenders in robbery, the defendant's subjective malice, personal dangerousness and other circumstances shall be fully considered, to precisely confirm principal and accessory offenders, distinguish their responsibilities for an offense, determine penalty on the basis of the responsibilities, and ensure that the punishment fits the crime. For a case with two or more principal offenders, offenders with the greatest responsibility for offense and relatively great responsibility for offense shall be distinguished from proposing to commit a crime, premeditation, preparation, implementation, handling of booty, and other aspects; and for a case with two or more accessory offenders, offenders with lighter and relatively light responsibility for offense shall be distinguished. Lenient or mitigated penalties shall be determined for accessory offenders according to the specific facts of the case and accessory offenders' responsibility for offense. Accessory offenders who surrender themselves, have meritorious acts, commit robberies for the first time, or have other circumstances may be exempted from punishment.
2. For a joint robbery case leading to death of one person whose offender shall be sentenced to death penalty according to the law, except under circumstances of extremely cruel criminal means, particularly egregious social impacts, and seriously endangering public security, generally only the principal offender who plays the most prominent role and commits the most serious crime in the joint crime of robbery shall be sentenced to immediate execution of death penalty. Where the principal offender who commits the most serious crime is not applicable to death penalty or he or she is not sentenced to immediate execution of death penalty for surrendering himself or herself, having meritorious acts, or having other statutory circumstance where a lenient punishment shall be imposed, other principal offenders shall not be sentenced to immediate execution of death penalty without distinguishing.
3. In a case of joint crime of robbery with an accomplice at large, the responsibilities of the offender in custody and offender at large shall be distinguished as much as possible according to the available evidence, and the offender in custody shall be punished according to his or her responsibility of offense. Where the responsibility of offense is indeed difficult to be distinguished or it is not certain that the responsibility of offense of the offender in custody may be less serious than that of the offender at large, penalty shall be applied to the offender in custody with certain leeway left and immediate execution of death penalty shall be sentenced with extra prudence.
VI. Application of repeat offender and other circumstances
Under the provisions of paragraph 1 of Article 65 of the Criminal Law, repeat offenders shall be severely punished. Where a robbery defendant is a repeat offender, the circumstances and consequences of the crime, the nature of the former and latter crimes committed, the interval time, the severity of penalty, and other situation shall be comprehensively considered in the application of penalty, to determine the extent of severer punishment. A repeat offender whose former crime is robbery and other serious crimes shall be subject to intensified severer punishment according to the law. For a defendant who is not a repeat offender, but has criminal record of crime of robbery, mitigated punishment or probation shall generally not apply. An offender who may be sentenced to death penalty and is a repeat offender shall also be handled prudently, and repeat offenders shall not be sentenced to immediate execution of death penalty without exception; and defendants who are repeat offenders and fall under statutory circumstance where a lenient punishment shall be imposed shall be sentenced to immediate execution of death penalty upon comprehensive consideration, under strict control.
VII. Handling principles for compensation for civil actions incidental to robbery cases
The compensation for civil actions incidental to robbery cases shall be appropriately handled. In the trial of criminal cases of robbery, people's courts generally shall not take the initiative to carry out the work of incidental civil conciliation. However, where the circumstances of a crime are not particularly adverse, or a victim gets into trouble in livelihood and medical treatment, and the defendant and the victim have reached agreement on civil compensation settlement by themselves, civil compensation may be valued as one of the bases for determining a defendant's penitential attitude and be considered appropriately in sentencing.