Does The Place Of Prostitution Belong To The "Household" In The Criminal Law?

[case replay]

After being premeditated by the defendant, Zhao, Xiao Mou, Wang Mou, Chen Mou and Liu Mou, in July 2009, in Beijing, Dongcheng District, Chaoyang District, Fengtai District, Haidian District and other places, she contacted with prostitutes through Internet chat, then entered the place of prostitution with the prostitution as the reason. Using knife, verbal threat and other means, 4 robberies were carried out, and the amount of robbery amounted to over 5 yuan.

Chen and Liu took the illegal possession as the purpose and ganged up to steal other people's belongings by violent means. The amount of the robbery was huge, and the defendant, Zhao, Xiao Mou, Wang and Chen, had robbed many times. The 5 defendants' acts violated the personal rights and property rights of the citizens. All of them constituted robbery. The defendant was sentenced to be sentenced to fixed-term imprisonment in twelve years and six months. He was sentenced to a fixed-term imprisonment of twelve years. The defendant, Wang, was robbed and sentenced to thirteen years' imprisonment. Defendant Chen was robbed and sentenced to thirteen years' imprisonment; the defendant Liu was guilty of robbery and sentenced to eleven years' imprisonment. On March 29, 2010, the people's Court of Beijing city of Dongcheng District affirms the defendant: Zhao, Xiao Mou, Wang Mou,

After the verdict of the first instance, the defendant Wang refused to accept the case. He appealed to the second intermediate people's Court of Beijing on the grounds that it did not constitute an indoor robbery and the original sentence was too heavy.

During the second instance hearing, Wang, an appellant, offered to withdraw the appeal. After examination, the second middle court of Beijing held that the behavior of 5 persons, such as Wang, was in line with the elements of robbery, and it was a robbery at home. Wang, the defendant, Zhao, Xiao and Chen were robbed. The court of first instance convicted and applied the law to the accused, the sentencing was appropriate, and the trial procedure was legal. In view of Wang's initiative to withdraw the appeal, it is in line with Legal provisions It should be granted. In June 3, 2010, the second middle court of Beijing ruled that Wang could withdraw the appeal.

[viewpoints]

In this case, Wang Mou and others' behavior undoubtedly constitutes robbery. The focus of the controversy is whether Wang et al's behavior constitutes "robbery". House robbery "Is the residence of prostitution belonging to the" household "in the criminal law? In judicial practice, the scope of the issue of" households "appears now and again, although the Supreme People's Court promulgated the corresponding judicial interpretation, but based on different interpretations of the judicial interpretation, the problem still exists. At present, the judicial practice and theoretical circles mainly have the following four points:

1. professor Chen Xingliang (Peking University School of law) believes that "household" generally refers to the private residence of citizens, excluding other places.

2. Zhou Zhen thought to Professor (China Youth University for Political Science) that robbery at home refers to robbery in places where citizens live for a long time in fixed life, living or inhabiting. Besides private housing, it also includes fishing boats for domestic vessels, tents for herdsmen, even hostels, dormitories for fixed duty personnel, etc. in real functions and psychological feelings, there are places similar to private residences, and should also be included in households.

3. Professor Xiao Zhonghua (School of law, Renmin University of China) believes that the scope of "households" is not only the private residences of citizens, but also the offices of state organs, enterprises and institutions, people's organizations and social organizations, which are closed spaces for public production and living. {page_break}

4. highest People's Procuratorate In the latest edition of the criminal law interpretation and application guidelines issued by the prosecutor's office, the procuratorial Office suggests that robbery at home means robbing a place where people are allowed to enter, live and work. The "household" includes both the houses and courtyards of citizens, including the offices and offices of organs, enterprises and institutions, and also the fishing boats and passengers living in hotels.

In this case, the defender suggested that the defendant's place for committing a crime was the place where the victim had committed illegal activities and was not a "household" in the criminal law.

The people's Court of Dongcheng District, Beijing, held that the residence of the victim was not a place of operation. After 5 premeditated defendants, Wang and others, with the purpose of robbery, entered the victim's living place with knife and robbed the victim.

[judge's response]

Robbery in the residence of the self prostitution should constitute an indoor robbery.

According to the first point, "household" refers only to private housing. According to the second point of view, whether or not "households" need to be analyzed in detail according to specific circumstances, and the operability is not strong enough to cause different understandings. The third, fourth view is rather too broad. It seems that the "household" is equivalent to the "room". The legislator stipulates that the robbery rather than the house robbery is obviously the strict meaning of "household". Although offices, shops, dormitories, hotels and other places are also relatively isolated from the outside world, they are more public and can not give citizens a sense of security or family life like "households", so they should not be identified as households. I agree with the first view that "household" refers only to private housing, which is not only consistent with people's general understanding, but also corresponds to the literal meaning of Chinese.

According to the interpretation of the Supreme People's Court on the interpretation of certain issues concerning the application of laws in robbery cases in 2000, house robbery refers to the relative isolation of other people's lives, including closed courtyards, herdsmen tents, fishermen as fishing boats for family life places, and houses for rent. According to the 2005 opinion on the application of law in robbery and robbery cases, further explanation of household robbery refers to residence, which is characterized by two aspects of family life and relative isolation from the outside world. The former is a functional feature and the latter is a locale characteristic. The functional characteristics of "household" are the primary characteristics of "households", which means that "households" can provide convenience for people living in that place for daily life and daily living. The location characteristic of households is the relative isolation and independence of households. The relative isolation of households can provide protection for occupants' personal and property safety as well as family and personal privacy, so that the privacy and exclusiveness of household life are distinctly different from those of open dormitories and hotels. Besides, other places open to the public are excluded from the scope of households. {page_break}

The functional characteristics of households exclude business premises from the scope of households. However, whether it is possible to identify robbery in housing for commercial and residential use is controversial in judicial practice. In view of this, the criminal judicial interpretation and its understanding and application of the criminal law written by the Supreme People's Court explained: "there may be such a situation in practice, that is, to use daily residence to engage in business activities such as commodity retailing, and to make a living in the evening. According to the interpretation, if criminals enter the above places for robbery during the daytime, because the workplace is open rather than private living space at the time of operation, it can not be considered "robbery at home". If criminals enter the residence at night or other business hours, they should be identified as "robbery at home". The author believes that the premise of resolving this dispute is the identification of the nature of commercial and residential housing, that is, whether the house belongs to households according to the main functions played by the owner during the robbery. For example, the street store which is purchased for operation is mainly operated. The purpose of living in the street is not to live in food and drink, but to watch and facilitate business at any time. It is not a snack bar for the whole family. It can not be identified as a household, regardless of day or night, business hours or non business hours.

For the purpose of this case, the purpose of robbery is to enter the prostitution house under the name of whoring, and then carry out the robbery. Where is the place where a prostitute is a "household" or a place of operation? I believe that the case is located in the building of a residential district, neither on the street nor on the first floor, nor on the street, such as "shampoo house" or "beauty shop", but the habitation of the victim's living quarters, with the characteristics of the family provided for by law and the relative isolation from the outside world. Although the victim is engaged in prostitution in his residence, but under the limitation of his physiological endurance, it is impossible for him to engage in prostitution for more than the time of family life. He can only think that his habitation has the nature of sexual trading place. His residence is still mainly a function of life. At the very least, prostitution occurs in his habitation, and it can not be said that his residence completely loses the function of life. Moreover, in law, it is necessary to determine whether a place is a business place. It is necessary to identify from the geographical location such as whether it is on the street, whether the surrounding environment has similar business premises, internal facilities, signboards and the cognition degree of the surrounding masses to the nature of the premises. For example, in order to carry out robbery, the operator would enter the household for the purpose of robbery, and then carry out the robbery. Can it be said that the victim's residence has become a trading place during the period of sale and disuse, and has lost the function of "household"? This is obviously beyond the legislative intent and is unreasonable. Therefore, the author believes that although the home of prostitution has the use of the location of sexual spanaction, the main function of family life is family life. Therefore, it should be identified as "household" in the sense of criminal law. The purpose of robbery is to enter the habitation of self prostitution.

In addition, during the second instance, the author also noticed another notable problem in the case. When Wang Mou and others were carrying out a robbery, they found that there was a whore in the place of prostitution, and then robbery was carried out on the whoring customer. So did Wang and others robbery the clients?

The author thinks that the functional characteristics of "households" are not "people" but "things". The "thing" here refers to the fact that the residence has the relative isolation of other people's family life and the outside world. The "person" here refers to the occupants in the residence. The right thing to do is not to refer to the fact that as long as the residence has the relative isolation of other people's family life and the outside world, it constitutes the "household" stipulated in the 263rd provision of the criminal law, and generally does not ask who lives in the residence. Because this article focuses on ensuring the safety function of households and the reliance interests of people on the safety of households, rather than the personal and property rights of specific residents. The reason why the criminal law stipulates family robbery as aggravating punishment is that the house robbery endangers the family life of the citizens, and all the people and their property in the room will inevitably be infringed or threatened by the criminals. The actor enters the citizen's residence with the intention of robbery, even if the object of the robbery is not the owner of the house, it still infringes the citizen's right to be inviolable. Because the crime of illegal intruding residence in the criminal law means illegal entry into other people's residence without permission or withdrawal without reason. Under the condition that the "household" is relatively isolated from the outside world and the victim is isolated and helpless, the act not only seriously endangers the safety of the person and property of all the people present, but also violates the trust interest of the residents living in the house or visiting, playing, and temporarily staying (including the owner of the house). The author believes that no matter whether the meaning of the terms of the criminal law can be interpreted by the literal interpretation of the family, or whether the family is interpreted according to the legislative spirit or the purpose of interpretation from the legislative purpose, we have no reason to restrict the interpretation of the family to the victim. In judicial practice, even the owner of a house has been looted by a court to find a stranger to come to his home for a robbery. Therefore, the housing is mainly used for family life, and is isolated from the outside world. As to whether the victim is the owner of the house, it does not affect the identification of the defendant's nature of behavior. In this case, Wang Mou and others robbed the clients were still involved in the house robbery.