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14 Model Cases on the Trial of Minors Circulated by the Supreme People's Court [Effective]
最高人民法院通報14起未成年人審判典型案例 [現行有效]
【法寶引證碼】
 
  
  
14 Model Cases on the Trial of Minors Circulated by the Supreme People's Court 

最高人民法院通報14起未成年人審判典型案例

(November 24, 2014) (2014年11月24日)

Table of Contents 目錄
1. People v. Wang (a case of robbery) 1.王某搶劫案
2. Li v. Sun (a case of dispute over change of child custody) 2.李某訴孫某變更撫養關系糾紛案
3. People v. Zhao (a case of stealing and illegally providing credit card information) 3.趙某某竊取、非法提供信用卡信息案
4. Zhang v. Guo (a case of dispute over visitation right) 4.張某訴郭某某探望權糾紛案
5. People v. Liu (a case of rape) 5.劉某強奸案
6. Zhuang Jianyu v. Wu Jianguang (a case of change of child custody) 6.莊建玉訴吳建光變更撫養關系案
7. People v. Wang Huaizhi and Yang Lixian (a case of abandonment) 7.王懷志、楊麗仙遺棄案
8. People v. Zhang (a case of opening a gambling house) 8.張某某開設賭場案
9. People v. Hua Shuangji (a case of rape and molestation of children) 9.華雙記強奸、猥褻兒童案
10. Jing v. Villagers' Committee of Xiesheng Village, Liuhe Sub-district, Hekou District, Dongying City (a case of non-performance of duties of assisting in settling the permanent residence) 10.荊某某訴東營市河口區六合街道協勝村民委員會不履行協助落戶職責案
11. People v. Zhao (a case of intentional injury) 11.趙某某故意傷害案
12. People v. Wang (a case of theft) 12.王某盜竊案
13. People v. Wu and other persons (a case of school shooting) 13.吳某某等校園槍擊案
14. Zhu Fang (middle name withheld) v. Zhu (a case of dispute over child support) 14.朱某芳訴朱某撫養費糾紛案
1. People v. Wang (a case of robbery)   一、王某搶劫案
(1) Basic Facts (一)基本案情
Defendant surnamed Wang (17 years old, student) robbed the victim surnamed Zhang (female, 19 years old) of a black satchel, which contained 75 yuan in cash, the victim's identity card, and one bank card by means of violent attack, causing minor injury of Zhang. Wang was captured on the same day, and both the money and the articles have been seized and returned to the victim. Afterwards, the legal representative of defendant paid 20,000 yuan to the victim as compensation for injury and damages and both parties have reached a settlement agreement. 被告人王某(17歲,某校學生)在北京市某村,以暴力毆打的方式,劫取被害人張某某(女,19歲)黑色挎包1個,內有人民幣75元、被害人身份證1張及銀行卡1張,並致被害人張某某輕微傷。被告人王某于當日被抓獲,款、物均已起獲發還。後被告人的法定代理人賠償被害人治傷損失費等人民幣20000元,雙方達成和解協議。
(2) Judgment (二)裁判結果
After a hearing, the People's Court of Haidian District, Beijing Municipality held that: The act of defendant surnamed Wang has constituted a crime of robbery and Wang should be punished. Considering that Wang was a minor when committing the crime and was a first-time offender, he truthfully confessed to his criminal facts after his arrest, showed repentance in the court hearing, and has compensated for the economic losses of the victim and obtained forgiveness of the victim, the money and articles involved have been seized and returned to the victim, Wang's school was willing to accept him to continue schooling and established a regulatory organization to conduct supervision, assistance, and education on him, he had a good past performance and in-depth repentance, and there was basis for persuasion and redemption, the Court imposed a mitigated punishment on Wang according to the law and granted probation to him. In the meantime, to correct Wang's bad habits and for the benefit of supervision, assistance, and education of Wang during the probation period, the Court issued an injunction. Accordingly, the Court sentenced Wang to a fixed-term imprisonment of two years with a two-year suspension of execution and imposed a fine of 2,000 yuan on him. Wang was prohibited from entering night clubs, bars, discos, Internet bars, and other entertainment venues during the probation period and he was also prohibited from excessive drinking. 北京市海澱區人民法院經審理認為,被告人王某行為已構成搶劫罪,應予懲處。鑒于被告人王某犯罪時未滿成年,系初犯,到案後能如實供述自己的犯罪事實,庭審中認罪態度較好,已賠償被害人的經濟損失,獲得被害人諒解,涉案款、物均已起獲發還,被告人王某所在學校願意接收其回校繼續讀書,並建立監管組織對其進行監管幫教,其既往表現良好,悔改深刻,具備感化、挽救的基礎,故對被告人王某依法減輕處罰,並宣告緩刑,同時,為了矯正王某的不良習慣,有利于對其在緩刑考驗期限內的監管幫教,特宣告禁止令。判決被告人王某犯搶劫罪,判處有期徒刑二年,緩刑二年,罰金人民幣2000元。禁止被告人王某在緩刑考驗期限內進入夜總會、酒吧、迪廳、網吧等娛樂場所,禁止酗酒。
(3) Analysis (三)案例評析
If not corrected, bad habits are likely to trigger crimes afterwards. Upon consultation of the opinions of criminal psychologists, judges decided to apply probation to Wang and in the meantime, the court issued the following two injunctions: (1) Wang was prohibited from entering night clubs, bars, discos, Internet bars, and other entertainment venues during the probation period; and (2) Wang was prohibited from excessive drinking. 不良習慣,如果不加以矯正,以後可能引發犯罪。在咨詢犯罪心理專家的意見後,法官決定對其適用緩刑的同時,宣告如下兩項禁止令:一是禁止在緩刑考驗期限內進入夜總會、酒吧、迪廳、網吧等娛樂場所;二是禁止酗酒。
After the judgment was pronounced, judges urged Wang to write a temperance guarantee and organized his parents, teachers, and defender, public prosecutor, and community correction personnel to hold a symposium on assistance and education during the probation period. Besides, judges received Wang at a fixed time each month and listened to his ideological reports. Wang behaved well and such bad habits as excessive drinking were no longer found. 宣判後,法官督促王某書寫了戒酒保證書,並組織家長、老師、辯護人、公訴人、社區矯正人員召開了緩刑幫教座談會。法官還每個月在固定時間接待王某聽取其思想彙報。王某表現良好,未發現酗酒等不良習慣。
2. Li v. Sun (a case of dispute over change of child custody)   二、李某訴孫某變更撫養關系糾紛案
(1) Basic Facts (一)基本案情
Sun and Li were divorced by agreement due to lack of mutual affection. It was determined in the divorce agreement that their child, Xiaoming, was raised by Sun; however, shortly after the divorce, Xiaoming was picked up by his mother surnamed Li to live together with her. Afterwards, Sun believed that with the increase in age, the child should live together with him and thus he went to Li's to take back the child. After negotiation between both parties failed, Li instituted a lawsuit in the court and requested the court to change the child custody of Xiaoming. 孫某與李某因感情不和協議離婚,離婚時確定孩子小明由父親孫某自行撫養,但離婚後不久,小明就被其母李某接走,與李某共同生活。此後,孫某認為孩子隨著年齡增大,應該與自己共同生活,遂找李某接回孩子。但雙方協商未果,李某訴至法院要求變更小明的撫養權。
(2) Judgment (二)裁判結果
After the People's Court of Mentougou District, Beijing Municipality accepted this case, judges enquired Sun's opinions. Sun contended that his conditions for child custody were better than those of Li and it was agreed in the divorce agreement that Xiaoming was raised by him. Therefore, he disagreed with the claim of Li. Xiaoming has been 11 years old and after judges talked with him separately, Xiaoming said that it would be better if he lived together with Li. To comprehensively learn the situations of the parents and render a judgment that was most favorable to Xiaoming, judges made a detailed interpretation on the content of the social protection system and the court's specific practice to both parties and after gaining consents of both parties, the court carried out the work of social protection. 北京市門頭溝區人民法院受理此案後,法官詢問孫某的意見,孫某認為自己的撫養條件比李某好,且離婚協議明確約定小明由其撫養,故不同意李某的訴訟請求。小明已年滿11歲,法官單獨與小明進行了談話,小明表示與李某共同生活更好。為全面了解父母雙方的情況,做出對小明最有利的裁判,法官向雙方當事人詳細釋明了法院關于社會觀護制度的內容及具體做法,在征得雙方同意後,對本案開展了社會觀護工作。
The social protection personnel have met with Xiao Ming and his parents for five times and contacted them by telephone for more than ten times, conducted surveys and paid visits to the residences and places of work of both parties, neighborhood committees at the place of residence, and local police station, and guided Xiaoming's parents in rationally treating child custody based on the healthy growth of the child. The social protection personnel also went to Xiaoming's school to learn the change of Xiaoming after he knew his parents' custody battle and submitted to the court a survey report on social protection in over 4,000 words, which described the relevant circumstances and objectively assessed the child custody conditions of the parents. After soliciting opinions of the parties, judges and social protection personnel jointly carried out the mediation work. Finally, Sun agreed to respect the will of the child and changed the child custody of Xiaoming to Li. 社會觀護員與小明及其父母見面5次,電話聯系10余次,分別到雙方家中、單位、居住地的居委會、派出所進行調查和走訪,並引導小明父母從孩子健康成長出發,理性對待撫養權問題。社會觀護員還到小明所在學校,了解小明得知父母爭奪撫養權後發生的變化,向法院提交了4000余字的觀護調查報告,詳細闡述了相關情況,客觀評估了父母雙方的撫養條件。法官在征求當事人意見後,與社會觀護員共同開展調解工作。最終,孫某同意尊重孩子的意願,將小明的撫養權變更給李某。
After the conclusion of the case, the social protection personnel came to Xiaoming's school again to conduct a follow-up protection on Xiaoming. Xiaoming was happy to see the social protection personnel and said that he no longer worried about his parents' battle for him and that he would study hard to make his parents proud of him. The school also reported that Xiaoming's emotion was stabilized, his academic performance no longer declined, and his overall mental status became positive. 案件審結後,社會觀護員再次到小明所在學校對小明進行跟蹤觀護,小明見到社會觀護員非常高興,表示自己再也不用擔心父母為爭他吵架了,要好好學習,成為父母的驕傲。學校也反映小明的情緒穩定了,成績不再下滑,整個精神狀態發生了積極向上的變化。
(3) Analysis (三)案例評析
Disputes over the change of child custody involve family conflicts and both minors and their parents frequently have negative psychological states. To safeguard the healthy growth of minors in body and soul, the People's Court of Mentougou District, Beijing Municipality attempted to carry out the work of social protection in similar cases, hired social protection personnel to conduct social surveys, participate in court mediation, carry out psychological counseling, follow up the enforcement of the effective judgment, and timely intervene acts of impairing the rights and interests of minors. In this case, the social protection personnel have played an important role: the well-written survey report provided judges with reference for the judgment, the psychological counseling of the parties and the participation in mediation promoted the final settlement of disputes and under the assistance of such social protection personnel, Xiaoming also had a good environment for growth and became more healthy and positive in personality. 變更撫養關系糾紛涉及家庭矛盾,未成年人及其父母往往出現負面心理狀態。為呵護未成年人身心健康成長,北京市門頭溝區人民法院嘗試在此類案件中開展社會觀護工作,聘任觀護員進行社會調查,參與庭審調解,開展心理疏導,跟蹤生效裁判文書執行,及時幹預侵害涉案未成年人權益行為。本案中,觀護員發揮了重要的作用,內容翔實的調查報告為法官裁判提供了參考依據,對當事人進行心理疏導,參與調解,促成了糾紛的徹底化解,小明也在觀護員幫助下,有了良好的成長環境,個性更加健康向上。
3. People v. Zhao (a case of stealing and illegally providing credit card information)   三、趙某某竊取、非法提供信用卡信息案
(1) Basic Facts (一)基本案情
Defendant surnamed Zhao was a student of a vocational school in Nanjing City. Keen on network technologies, he joined the relevant QQ groups to learn from masters and during this period, he made acquaintance with Shi and Yue. From April to May 2011, Zhao, jointly with Shi, broke through a shopping website by utilizing hacking techniques and stole a total of more than 6,000 pieces of credit card information from the website. They provided Yue with such credit card information, which then was sold by Shi and Yue to Fang and other persons. Afterwards, Zhao made a profit of more than 20,000 yuan in total. Persons not involved in this case were apprehended when consuming in Shanghai Municipality with credit cards that were forged on the basis of the aforesaid credit card information. On September 28, 2011, Zhao was apprehended by public security officers. 被告人趙某某系南京某職校學生,酷愛網絡技術,並加入有關QQ群向他人拜師學習,期間結識施某某、嶽某某。2011年4月至5月,被告人趙某某會同施某某,利用黑客技術攻破某購物網站,從中竊取了共計6000余條信用卡信息。後二人將信用卡信息提供給嶽某某,並由施某某、嶽某某出售給方某某等人。事後趙某某獲利共計人民幣20000余元。案外人持憑借上述信用卡信息偽造的信用卡在上海消費時被抓獲。2011年9月28日,被告人趙某某被公安人員抓獲。
(2) Judgment (二)裁判結果
After a hearing, the People's Court of Changning District, Shanghai Municipality (hereinafter referred to as the “Court of Changning District”) held that: Defendant surnamed Zhao, in collision with other persons, attacked an overseas shopping website by utilizing web hacking techniques, stole credit card information, and provided such information to other persons, involving a large amount of money, and his acts have constituted the crime of stealing and illegally providing credit card information and he should be subject to criminal liability according to the law. Since Zhao has reached 16 but was under 18 when he committed the crime, he may be subject to a mitigated punishment according to the law; after his arrest, he truthfully confessed to his crime and thus he should be subject to a lighter punishment according to the law; and since he voluntarily pleaded guilty in the hearing, it was decided upon discretion that he should be subject to a lighter punishment depending on the actual circumstances. Zhao actively showed remorse after he committed the crime, had a good performance during the period of assistance and education, gained full appreciation of his school, and continued his studies. In addition, the granting of probation was unlikely to cause significant adverse effects on the community where he lived. Therefore, he may be granted probation according to the law. In view of the above, the Court of Changning District determined according to the law that defendant surnamed Zhao committed a crime of stealing and illegally providing credit card information, he should be sentenced to a fixed-term imprisonment of two years with a two-year suspension of execution, and a fine of 20,000 yuan should be imposed on him; and the illegal income should be recovered. 上海市長甯區人民法院經審理認為,被告人趙某某夥同他人采用網絡黑客技術攻擊境外購物網站,竊取信用卡信息,並非法提供給他人使用,數量巨大,其行為已構成竊取、非法提供信用卡信息罪,依法應當承擔刑事責任。被告人趙某某犯罪時已滿16周歲不滿18周歲,依法減輕處罰;到案後能如實供述,依法應當從輕處罰;在審理時能自願認罪,酌定從輕處罰。被告人趙某某在犯罪後有積極悔罪表現,在觀護幫教期間表現良好,得到所在學校的充分肯定,並繼續自己的學業,宣告緩刑不致對其所居住社區有重大不良影響,可依法對其宣告緩刑。據此,長甯法院依法認定被告人趙某某犯竊取、非法提供信用卡信息罪,判處有期徒刑二年,緩刑二年,並處罰金人民幣20000元;違法所得予以追繳。
After the judgment came into force, the Court of Changning District and the Department of Public Security Authorities, Procuratorates, and Courts of Qixia District, Nanjing City held a joint conference, on which they decided to jointly explore the sealing-up the defendant's records of this first minor offense in Qixia District, laying a sound foundation for defendant's getting rid of the burden and continuing his studies. Considering that Zhao excelled in the network and guidance on him should be strengthened, judges of the Court of Changning District, jointly with the relevant network security technology departments of Shanghai Municipality, went to Nanjing City to conduct assistance and education on Zhao for multiple times and guided him in applying what he has learnt to network security technical services. During the period of probation, under the support of the relevant departments of Shanghai Municipality, the Court of Changning District arranged Zhao to practice in a well-known network company in Shanghai and assisted him in constantly improving his technological level. Zhao found that there was a security flaw in a well-known domestic website and he submitted a report to the relevant department and such flaw was remedied in a timely manner. Therefore, Zhao was twice granted rewards certificates as issued by the Internet Society of China. At present, Zhao has been smoothly graduated and he established a network security company jointly with other persons. 判決生效後,長甯法院與南京市棲霞區公檢法司召開聯席會議,決定共同對該被告人探索進行該區第一例未成年人的輕罪封存,為其放下包袱繼續學業打下良好基礎。鑒于趙某某在網絡方面學有所長但需要加強引導的情況,長甯法院法官又與上海市有關網絡安全技術部門聯手,多次赴南京對其進行幫教,引導其利用所學知識運用到網絡安全技術服務上來。緩刑考驗期間,長甯法院在上海有關部門支持下,安排其到上海某知名網絡公司進行實習,幫助其不斷提高技術水平。趙某某在緩刑考驗期,發現國內知名網站存在安全漏洞,並提交報告至相關部門及時進行彌補,因此,兩次獲得中國網絡安全協會頒發的獎勵證書。目前,趙某某已順利畢業,並與他人合作共同開辦了一家網絡安全公司。
(3) Analysis (三)案例評析
In this case, after the judgment was rendered, judges of the Juvenile Tribunal of the Court of Changning District continued to carry out the post-trial assistance and education and conducted assistance and education in another place through close cooperation with multiple departments. The success in the assistance and education of Zhao was achieved through joint efforts of the court of Shanghai Municipality and the community correction institution in another place and it also brought new enlightenment into the assistance and education of migrant minors by integrating forces in the juvenile trial. The successful transformation of defendant in this case from a juvenile hacker to a net guard reflects the positive social significance of the post-trial assistance and education of minors. 從本案來看,在判決後,長甯法院少年庭的法官繼續做好判後幫教工作,與多個部門密切合作進行異地幫教。對趙某幫教工作的成功,是上海與異地社區矯正部門部門共同努力所取得的成果,同時也為少年審判中整合力量開展外來未成年人的幫教帶來新的啟示。本案被告人從一名少年黑客轉變為一名網絡衛士的成功轉型,體現了對未成年人開展判後幫教工作的積極社會意義。
4. Zhang v. Guo (a case of dispute over visitation right)   四、張某訴郭某某探望權糾紛案
(1) Basic Facts (一)基本案情
Plaintiff surnamed Zhang and defendant surnamed Guo were originally wife and husband. During her pregnancy, Zhang discovered that Guo had an affair with another female and thus conflicts between them were generated. When Little Guo, daughter of Zhang and Guo born in wedlock, was diagnosed with motor retardation (first grade of disability) when she was one year old, conflicts between Zhang and Guo deepened. Afterwards, Zhang and Guo filed for divorce in the court in succession and were not supported by the court because Zhang was in the breast-feeding period and for other reasons. In 2012, Guo filed for divorce in the court again and Zhang agreed to the divorce. The court rendered a judgment that their daughter, Little Guo, should be under the custody of her father Guo. Considering that conflicts between Zhang and Guo were acute, the court did not support Zhang's claim for invitation. After the first-instance judgment was rendered, Zhang appealed on the ground that it was a mother's legal right to visit her daughter. The second-instance court rejected the appeal and affirmed the original judgment. Half a year later, Zhang filed a lawsuit again to request invitation. 原告張某與被告郭某某原系夫妻。張某在妊娠期間發現郭某某與其他異性有曖昧關系,因而產生矛盾。張某與郭某某婚生之女小郭1歲時被診斷患有運動發育遲緩,一級傷殘,兩人矛盾加劇。此後,張、郭二人先後向法院起訴離婚,因張某處于哺乳期等原因均未獲支持。2012年,郭某某再次向法院起訴離婚,張某同意,法院判決女兒小郭由父親郭某某撫養,考慮到張、郭之間矛盾嚴重激化,未支持張某的探望權請求。一審判決後,張某以探望女兒是母親的法定權利等為由提出上訴,二審法院駁回上訴,維持原判。半年後,張某再次起訴要求探望。
(2) Judgment (二)裁判結果
During the period of hearing, under the auspices of judges of the Juvenile Tribunal of the People's Court of Putuo District, Shanghai Municipality (hereinafter referred to as the “Court of Putuo District”), plaintiff and defendant reached an agreement, which stipulated that plaintiff went to visit her daughter, Little Guo, at the residence of Little Guo on the second Sunday each month and the specific number of visits may gradually increase with the improvement on the relations between plaintiff and defendant. To better resolve conflicts and disputes, the Court of Putuo District raised a proposal to the parties that a social visitation supervisor and a relative visitation supervisor may be set. On the basis of consensus between plaintiff and defendant, Xue, a Sunshine Youth social worker of Shiquan Sub-district, Putuo District, Shanghai Municipality, and Ge, aunt of defendant, served as visitation supervisors, who would assist in resolving any dispute arising in subsequent visits. Plaintiff voluntarily applied for withdrawal of the lawsuit and the Court of Putuo District approved the withdrawal. 審理期間,在上海市普陀區人民法院少年庭法官的主持下,原、被告達成協議,原告每月第二周周日至女兒小郭住處進行探望,具體探望次數可隨著原、被告關系的改善逐步增加。為更好地解決矛盾糾紛,普陀法院向當事人建議,可以設置社會探望監督人及親屬探望監督人。經過原、被告一致認可,上海市普陀區石泉街道陽光青少年社工薛某某、被告阿姨葛某某擔任探望監督人,後續探望中若發生爭議,由探望監督人協助解決。原告遂主動申請撤訴,普陀法院裁定准許。
After the conclusion of the case, judges and visitation supervisors paid a visit to the residence of defendant surnamed Guo together and after in-depth communication and exchange with defendant and his family members, the cooperation and recognition of Guo and his family members with the court increased substantially. For worries that new conflicts were likely to arise during visits, judges immediately asked Ge, aunt of defendant, to state her stand, and Ge promised that she would be present at each visit for supervision so as to timely resolve conflicts and disputes and eliminate contradictions and hidden troubles of both parties and together with judges, she also effectively persuaded defendant and his family members. The social worker surnamed Xue also informed defendant's family members that if any new conflict and dispute arose after the conclusion of the case, they may seek her help in the first time and she would take advantage of being rooted in the community and being close to the masses to ensure that such conflict and dispute were eliminated in the first time. The dual-setting of a social visitation supervisor and a relative visitation supervisor completely put away worries of plaintiff, defendant, and their respective family members and a visitation agreement was concluded. When judges and social workers paid a return visit, both parties said that the fulfillment of visitation was satisfactory and the relationship between both parties has been greatly improved. 案件審結後,法官與探望監督人一起至被告郭某某住處走訪,在與被告及家屬深入溝通交流後,他們對法院的配合度、認可度大幅提升。對于探望中可能產生新的矛盾的顧慮,法官當即請被告阿姨葛某某表態,其承諾每次探望時都到場監督,及時化解矛盾爭議,消除雙方矛盾隱患,並與法官一起對被告及家屬進行了有效的勸解。社工薛某某也告知被告家屬,若結案後出現新的矛盾爭議,可第一時間尋求她的幫助,她會利用植根社區,貼近群眾的優勢,確保矛盾爭議第一時間化解。社會、親屬探望監督人的雙重設置,徹底打消了原、被告及各自家屬的顧慮並達成探望協議。法官與社工一起上門回訪時,雙方均表示探望權履行情況良好,雙方關系大為改善。
(3) Analysis (三)案例評析
Such “trilemma” as “dilemma in investigation,” “dilemma in mediation,” and “dilemma in enforcement” prevail in the hearing of cases regarding disputes over visitation right. How to effectively enforce the judgment of a case regarding visitation rightt is a question for judges of the juvenile tribunal to ponder for a long term. 在探望權糾紛案件審理中普遍存在的“調查難”、“調解難”和“執行難”的“三難”問題,如何有效的執行探望權案件的判決,是少年庭法官長期思考的問題。
...... 該案在審理探望權糾紛案件中引入探望監督人制度,解決了有利于查明案件的當事人本人和家庭的真實情況,有利于化解矛盾糾紛,有利于體現司法公正公開,確保探望權人依法、合理履行探望權,從而依法保護了未成年人的合法權益,使他們能夠更加健康的成長。根據後續的跟蹤,該案的執行情況正常,兩家的關系緩和。本案是全國首例運用探望監督人制度的案件,是人民法院參與社會管理創新,整合各方資源,借助社會力量,化解案件矛盾糾紛,維護和保障未成年人合法權益的有益嘗試,為進一步完善少年審判制度注入了新鮮的經驗。
 ......



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