Opinions Concerning Some Questions of Concretely Applicable Law in Handling Criminal Cases from the Counterrevolutionary Riot and Political Turmoil

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1 August 1989, Supreme People’s Court, Supreme People’s Procuratorate

A decisive victory has been obtained in the struggle of Beijing suppressing the counterrevolutionary riot and all localities curbing turmoil. The struggle to suppress the riot and curb turmoil is a political struggle related to the life and death of our Party and State. The danger of criminal cases from the period of riot and turmoil is extremely grave, and their situation relatively complex. Handling these cases, must have facts as basis, law as criterion, the background of the riots and turmoil must be fully considered, and concrete analysis of the concrete case conducted. Against those having committed criminal activities with counterrevolutionary goals, the corresponding criminal responsibility for the crime of counterrevolutionism shall be investigated according to the relevant provisions of the Criminal Law; concerning those conducting other criminal activities, which crime is constituted is to be the crime for which they are convicted, according to the provisions of the Criminal law. During case handling, attitudes must be firm, and not at all soft-hearted, stress policies, strictly divide the contradictions between the two kinds of different natures, rigorously applying the boundary between crime and non-crime, both accurately and ruthlessly attacking the extremely small number of grave criminals.

Concerning the question of convictions in counterrevolutionary criminal cases

“With counterrevolutionary goals” is a necessary condition provided in the Criminal law for constituting the crime of counterrevolutionism. In order to establish the counterrevolutionary goal of criminals, the testimony of the defendant may not only be relied on, but the time, locality and overall details of the case must be comprehensively considered, where there is no deposition of the defendant, and there is ample evidence, it may similarly be established.

Those carrying out one of the following acts with counterrevolutionary goals, are to be convicted according to the provisions of the Criminal law related to the crime of counterrevolutionism.

1. Ringleaders or other major evil persons organizing, planning, or commanding crowds to conduct rioting with arms, or organizing transport, providing violent weapons, Molotov cocktails, etc., as well as initiating armed attacks on military and police vehicles and personnel, are to be convicted for the crime of gathering a crowd with arms and engaging in armed rebellion according to Article 95 of the Criminal Law.

2. Those organizing, leading or vigorously participating in all sorts of counterrevolutionary organizations, are to be convicted for the crime of organizing or leading counterrevolutionary cliques or the crime of participating in counterrevolutionary cliques according to Article 98 of the Criminal Law.

3. Those smashing or burning military and police vehicles, military equipment, materials, communications, public order police boxes or destroying other public constructions or equipment, plundering military materials, shops and other public property, as well as pillaging firearms and ammunition, are to be convicted for the crime of counterrevolutionary destruction according to Article 100 of the Criminal law.

4. Those using shooting at, beating, throwing bricks or stones and other objects at, or killing or harming military and police personnel or cadres and masses safeguarding order in other ways, are to be convicted for the crime of counterrevolutionary murder or counterrevolutionary harm according to Article 101 of the Criminal law.

5. Those planning, formulating or organizing the printing, distribution or posting of counterrevolutionary violent slogans, leaflets, large and small character posters, or openly propagating or inciting the overthrow of the regime of the people’s democratic dictatorship and the Socialist system through public speeches, articles, deliberate production and dissemination of rumours and other methods, as well as inciting the masses to attack party and government organs and key departments, resisting and destroying the implementation of State laws and decrees, are to be punished for the crime of counterrevolutionary propaganda and incitation according to Article 102 of the Criminal Law.

II, Concerning the question of convictions in other criminal cases.

Where there is no counterrevolutionary goal, those carrying out the following activities, are convicted according to the relevant provisions of the Criminal Law.

1. Those wilfully providing fire sources, fire accelerants, throwing kindling or burning military and police vehicles and other motorized vehicles, all sorts of buildings, military supplies or other public and private property, are convicted for the crime of arson according to Articles 105 and 106 of the Criminal Law.

2. Those smashing or destroying trains, cars, trolleybuses and other motorized vehicles, to an extent sufficient to topple them, damage or endanger them or creating grave consequences, are convicted for the crime of destroying traffic tools according to Articles 107 and 110 of the Criminal Law.

3. Those destroying railroad and road beds, rails or transportation safety equipment, to an extent sufficient to cause trains and cars to be overturned, endanger them or creating grave consequences, as well as breaking traffic police boxes, traffic management signal lights or traffic management recording equipment, are convicted for the crime of destroying traffic equipment according to Articles 08 and 110 of the Criminal Law

4. Those plundering firearms and ammunition brought along by army and police personnel or during transportation, dismantling and plundering firearms and ammunition mounted on military vehicles, are convicted for the crime of plundering firearms and ammunition according to Article 112 of the Criminal Law.

5. Those injuring or participating in murder of police and military personnel or cadres and masses upholding order, are convicted for the crime of injuring or killing persons According to Article 134 and Article 132 of the Criminal Law.

6. In cases of breaking or destroying military vehicles, according to the provisions on “beating, smashing and looting” in Article 137 of the Criminal Law, the ringleaders who destroy public and private property, are punished for the crime of pillaging as per Article 150 of the Criminal Law.

7. In cases of breaking public order police boxes, shops and other public constructions and facilities, destroying or forcibly taking public and private property, according to the provisions on “beating, smashing and looting” in Article 137 of the Criminal Law, the ringleaders who break or forcibly take public and private property are punished for the crime of pillaging as per Article 150 of the Criminal Law.

8. Those looting military property or material, are convicted for the crime of pillaging according to Article 150 of the Criminal Law.

9. Those organizing, commanding or initiating attacks on Party and government organs and focus factory and mining enterprises, are convicted for the crime of disordering social order according to Article 158 of the Criminal Law.

10. Those organizing, inciting or initiating the installation of roadblocks, blocking traffic, encircling military and police vehicles, trains and other motorized vehicles, are convicted for the crime of assembling a crowd to disorder traffic order according to Article 159 of the Criminal Law.

11. Those wantonly beating up military and police personnel, cadres and masses upholding order or throwing bricks, rocks, bottles or other objects to military and police personnel, cadres and masses upholding order and all sorts of vehicles, where circumstances are evil, are convicted for the crime of hooliganism according to Article 160 of the Criminal Law.

12. Those harbouring or giving false testimony to shield counterrevolutionaries during the counterrevolutionary riots and political turmoil, or other criminals, are convicted for the crime of harbouring or shielding criminals according to Article 162 of the Criminal Law.

13. Those illegally possessing firearms or ammunition and refusing to hand them over, are convicted for the crime of illegal possession of firearms and ammunition according to Article 163 of the Criminal Law.

III, Concerning questions that should be paid attention to during handling the above cases

1. In handling criminal cases on the counterrevolutionary riot and political turmoil, the emphasis must be put on evidence, there must be investigation and research, there must be no gullible depositions. Only where basic facts are clear, and the basic evidence is reliable, can there be a conviction and sentence according to the law.

2. Where, although criminal acts were committed at the same time and the same place, but there is no mutual linkage or collusion, and there is no joint intent, this is not considered as a joint crime, and criminal responsibility shall be investigated separately, this cannot be united into or handled as one case.

3. Where criminals of which the criminal responsibility is investigated as above, have already been sentenced to fixed-term imprisonment or a higher sentence, and it conforms to recidivism, sentences shall be more severe according to the law; where it falls under escaped or recidivist prisoners sentenced to reform through labour or persons subjected to re-education through labour, it is dealt with according to the National People’s Congress Standing Committee “Decision Concerning Dealing With Escaped or Recidivist Prisoners Sentenced to Reform Through Labour or Re-education Through Labour”; where one person commits two or more different criminal acts, combined punishment for multiple offences is implemented according to the law.

4. Persisting in the policies of “integrating punishment with magnanimity”, “reducing sentences for those telling the truth, severely punishing those refusing to confess”. Against those giving themselves up after committing crimes, reporting or displaying meritorious service, may be punished more leniently, more lightly or be exempted according to the law; those refusing to explain their own criminal facts, or continuing to commit criminal activities after suppressing the counterrevolutionary riot and curbing the political turmoil, are severely punished according to the law.

5. Cases handled before the issuance of these Opinions, as long as the facts are clear and the evidence conclusive, are not to be changed again although the conviction charges are not completely uniform.

最高人民法院 最高人民检察院关于办理反革命暴乱和政治动乱中犯罪案件具体应用法律的若干问题的意见

1989年8月1日,最高人民法院、最高人民检察院

北京平息反革命暴乱和各地制止动乱的斗争已经取得决定性胜利。平息暴乱和制止动乱的斗争,是关系到我们党和国家生死存亡的政治斗争。在暴乱和动乱期间的犯 罪案件,危害十分严重,情况比较复杂。办理这些案件,必须以事实为根据,以法律为准绳,充分考虑暴乱和动乱的背景,对具体案件进行具体分析。对以反革命为 目的进行犯罪活动的,应依照刑法有关规定,追究其相应的反革命罪的刑事责任;对进行其他刑事犯罪活动的,依照刑法规定,构成什么罪就定什么罪。办案中,要 态度坚决,毫不手软,讲究政策,严格区分两类不同性质的矛盾,严格区分罪与非罪的界限,又准又狠地打击极少数严重犯罪分子。一、关于反革命犯罪案件的定罪 问题
“以反革命为目的”,是刑法规定的构成反革命罪的必要条件。认定犯罪分子的反革命目的,不能仅凭被告人口供,而要综合考虑犯罪的时间、地点和全部案情,没有被告人供述,证据充分的,同样可以认定。
以反革命为目的,实施下列行为之一的,依照刑法反革命罪的有关条款定罪。
1.组织、策划、指挥众人持械进行暴乱,或者组织运送、发放暴力器械、燃烧瓶等,以及带头持械冲打军警车辆、人员的首要分子或者其他罪恶重大者,依照刑法第95条定持械聚众叛乱罪。
2.组织、领导或者积极参加各种反革命组织的,依照刑法第98条定组织、领导反革命集团罪或者参加反革命集团罪。
3.打砸、焚烧军警车辆、军事设备、物资、交通、治安岗亭或者破坏其他公共建设、设备,抢劫军事物资、商店或其他公共财物,以及抢夺枪支、弹药的,依照刑法第100条定反革命破坏罪。
4.用枪击、殴打、投掷砖、石等物或者其他方法杀害、伤害军警人员或维持秩序的干部群众的,依照刑法第101条定反革命杀人罪、反革命伤害罪。
5.策划、制定或者组织印制、散发和张贴反革命暴乱标语、传单、大小字报,或者以发表演说、文章、蓄意制造、散布谣言等方法,公然宣传、煽动推翻人民民主 专政的政权和社会主义制度的,以及煽动群众冲击党政机关和要害部门,抗拒、破坏国家法律、法令实施的,依照刑法第102条定反革命宣传煽动罪。二、关于其 他刑事犯罪案件的定罪问题
不具有反革命目的,实施下列行为之一的,依照刑法有关条款定罪。
1.故意提供火源、助燃物品、投掷火种焚烧军警车辆和其他机动车辆、各种建筑物、军用物资或者其他公私财产的,依照刑法第105条、106条定放火罪。
2.打砸、破坏火车、汽车、电车等机动车辆,足以发生倾覆、毁坏危险或者造成严重后果的,依照刑法第107条、110条定破坏交通工具罪。
3.破坏铁路、公路路基、铁轨、安全行车设备,足以使火车、汽车发生倾覆危险或者造成严重后果的,以及打砸交通岗亭、交通管制信号灯、交通管制录相设备的,依照刑法第108条、110条规定破坏交通设备罪。
4.抢夺军警人员携带和运输中的枪支弹药,拆卸、抢夺军用车辆上配置的枪支、弹药的,依照刑法第112条定抢夺枪支、弹药罪。
5.伤害或者参与杀害军警人员或维持秩序的干部群众的,依照刑法第134条、132条定伤害罪、杀人罪。
6.打砸、破坏军警车辆的,依照刑法第137条“打砸抢”的规定,毁灭公私财物的首要分子,以刑法第150条抢劫罪论处。
7.打砸治安岗亭、商店等公共建设、设施,或者毁坏、抢走公私财物的,依照刑法第137条“打砸抢”的规定,毁坏或者抢走公私财物的首要分子,以刑法第150条抢劫罪论处。
8.哄抢军警物资、器材的,依照刑法第150条定抢劫罪。
9.组织、指挥或者带头冲击党政机关和重点厂矿企业的,依照刑法第158条定扰乱社会秩序罪。
10.组织、煽动或者带头设置路障、堵塞交通、围堵军警车辆、火车或其他机动车辆的,依照刑法第159条定聚众扰乱交通秩序罪。
11.肆意殴打军警人员、维持秩序的干部群众,或者向军警人员、维持秩序的干部群众和各种车辆投掷砖、石、瓶等物、情节恶劣的,依照刑法第160条定流氓罪。
12.窝藏或者作假证明包庇反革命暴乱政治动乱中的反革命分子或者其他犯罪分子的,依照刑法第162条定窝藏罪或者包庇罪。
13.私藏枪支、弹药拒不交出的,依照刑法第163条定私藏枪支、弹药罪。三、关于办理上述案件应当注意的问题
1.办理反革命暴乱和政治动乱中的犯罪案件,要重证据,重调查研究,不轻信口供。基本事实清楚,基本证据确实的,才能依法定罪判刑。
2.对虽同时同地进行犯罪活动,但没有相互联系、勾结,没有共同故意的,不属于共同犯罪,应分别追究其刑事责任,不能笼统一案办理。
3.上述被追究刑事责任的犯罪分子,以前被判处过有期徒刑以上刑罚,符合累犯条件的,应依法从重处罚;属于逃跑或者重新犯罪的劳改犯和劳教人员的,依照全 国人大常委会《关于处理逃跑或者重新犯罪的劳改犯和劳教人员的决定》处理;一人犯有两种以上罪行的,应依法实行数罪并罚。
4.坚持“惩办与宽大相结合”、“坦白从宽,抗拒从严”的政策。对在犯罪以后自首或者有检举、立功表现的,依法可以从轻、减轻或者免除处罚;对拒不交代自己的犯罪事实,或者在平息反革命暴乱、制止政治动乱以后继续进行犯罪活动的,应依法从严惩处。
5.本意见下发以前办理的案件,只要事实清楚,证据确凿的,所定罪名虽不完全统一,也不再变动。

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