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No. 3 of Five Model Cases of Lawfully Punishing the Crime of Endangering Public Security Published by the Supreme People's Court: People v. Liu [REDACTED]kui and Sun [REDACTED]mei—Determining the criminal liability in a criminal case involving air rifles by taking into full account the circumstances of the case (case of illegally trading in firearms)
最高人民法院发布5个依法惩治危害公共安全犯罪典型案例之三:刘某魁、孙某梅非法买卖枪支案——综合考虑案件情节确定涉气枪刑事案件的刑事责任
【法宝引证码】
  • Judgment date: 05-30-2022
 
  
No. 3 of Five Model Cases of Lawfully Punishing the Crime of Endangering Public Security Published by the Supreme People's Court: People v. Liu [REDACTED]kui and Sun [REDACTED]mei (case of illegally trading in firearms)—Determining the criminal liability in a criminal case involving air rifles by taking into full account the circumstances of the case 最高人民法院发布5个依法惩治危害公共安全犯罪典型案例之三:刘某魁、孙某梅非法买卖枪支案——综合考虑案件情节确定涉气枪刑事案件的刑事责任
1. Basic Facts (一)基本案情
In December 2013, Zhang [REDACTED]wei and Fang [REDACTED]jun (both punished in separate cases), two men from Tonglu County, Zhejiang Province, wanted to open a real-life CS field club, and got in touch with Defendant Liu [REDACTED]kui, a seller in Beijing, on the recommendation of someone to discuss the purchase of paintball guns. In December 2014, Zhang [REDACTED]wei and Fang [REDACTED]jun went to Beijing to pay Liu [REDACTED]kui 30,000 yuan in cash. Liu [REDACTED]kui mailed 40 complete sets of paintball guns to Zhang [REDACTED]wei, and Zhang [REDACTED]wei paid the balance of 60,000 yuan to Liu [REDACTED]kui by a logistics company. 2013年12月,浙江省桐庐县男子张某炜、方某俊(均另案处理)欲开设真人CS野战俱乐部,通过他人介绍与北京市卖家被告人刘某魁取得联系洽谈购买彩弹枪事宜。2014年12月,张某炜、方某俊前往北京市向刘某魁支付现金3万元,刘某魁将40支彩弹枪成套散件邮寄给张某炜,张某炜将尾款6万元交由物流公司转交给刘某魁。
In June 2014, with the intention of purchasing guns needed for a real-life counter-strike game for an outward-bound company in Qiqihar City, Heilongjiang Province, which the defendant co-owns together with another person, Defendant Sun [REDACTED]mei consulted with the co-owner, and the co-owner contacted Liu [REDACTED]kui over the Internet and went to Beijing to buy 24 parts kits for paintball guns and more than 5,000 rounds of paintball from Liu [REDACTED]kui at a price of 32,000 yuan. These parts kits and paintballs were delivered to Sun [REDACTED]mei in Qiqihar City through logistics channels. 2014年6月,被告人孙某梅欲为其与他人共同经营的黑龙江省齐齐哈尔市某拓展训练公司购买开展野外真人CS游戏所需枪支,经与共同经营人商议后,由共同经营人通过网络联系到刘某魁,并前往北京市从刘某魁处以3.2万元的价格购得24支彩弹枪成套散件及彩弹5000余发,通过物流途径发往齐齐哈尔市孙某梅等人处。
The identification results found that: Among the paintball guns involved in the case, the 15 guns purchased by Zhang [REDACTED]wei and Fang [REDACTED]jun and the 3 purchased by Sun [REDACTED]mei and others, which have a muzzle-ratio kinetic energy of more than 1.8 joules per square centimeter, met the relevant standards and were identified as guns powered by compressed gas, but generally with a low muzzle-ratio kinetic energy. The remaining 46 paintball guns did not fire normally or had a muzzle-ratio kinetic energy of less than 1.8 joules per square centimeter, so they should not be identified as guns. 经鉴定,涉案彩弹枪中,张某炜和方某俊购买的15支、孙某梅等人购买的3支的枪口比动能在1.8焦耳/平方厘米以上,符合相关规定标准,认定为以压缩气体为动力的枪支,但枪口比动能总体较低;其余46支彩弹枪不能正常击发或枪口比动能小于1.8焦耳/平方厘米,不能认定为枪支。
2. Judgment (二)裁判结果
After trial, the People's Court of Tiefeng District, Qiqihar City, Heilongjiang Province held that: the conduct of defendants Liu [REDACTED]kui and Sun [REDACTED]mei constituted the crime of illegally trading in firearms. After taking into account, among other factors, the defendants' malicious intent, the number of guns traded and their uses, the harmful consequences, and the attitude towards confession, on May 9, 2019, the court sentenced Defendant Liu [REDACTED]kui to fixed-term imprisonment of three years and six months for the crime of illegally trading in firearms, and Defendant Sun [REDACTED]mei to fixed-term imprisonment of three year, suspended for one year of probation, for the crime of illegally trading in firearms, and submitted for approval according to the procedures for penalty below the statutory penalty. Upon review, the Supreme People's Court held that the original sentence of fixed-term imprisonment of three years and six months imposed on Liu [REDACTED]kui for the crime of illegally trading in firearms did not fall under the circumstances that warrant a sentence below the statutory penalty, and the sentence given to Sun [REDACTED]mei was too excessive. Therefore, it made a ruling to disapprove of and revoke the sentencing of defendants Liu [REDACTED]kui and Sun [REDACTED]mei, and remanded the case for a new trial. After a retrial, on May 30, 2022, the People's Court of Tiefeng District, Qiqihar City sentenced Defendant Liu [REDACTED]kui to fixed-term imprisonment of three years and six months for the crime of illegally trading in firearms, and exempted Defendant Sun [REDACTED]mei from criminal punishment for the crime of illegally trading in firearms. As neither party filed an appeal after the sentence was pronounced, the judgment came into effect. 黑龙江省齐齐哈尔市铁锋区人民法院经审理认为,被告人刘某魁、孙某梅的行为均构成非法买卖枪支罪,综合考虑各被告人的主观恶性、买卖枪支数量、用途、危害后果、认罪态度等,于2019年5月9日作出判决,对被告人刘某魁以非法买卖枪支罪判处有期徒刑三年六个月;对被告人孙某梅以非法买卖枪支罪判处有期徒刑一年,缓刑一年,并按照法定刑以下判处刑罚程序报请核准。最高人民法院经复核认为,原判对刘某魁以非法买卖枪支罪判处有期徒刑罚三年六个月,不属于需要在法定刑以下判处刑罚报请核准的情形,且对孙某梅所判刑罚过重,裁定不核准并撤销对被告人刘某魁、孙某梅的量刑,发回齐齐哈尔市铁锋区人民法院重新审判。齐齐哈尔市铁锋区人民法院经重新审理,于2022年5月30日作出判决,对被告人刘某魁以非法买卖枪支罪判处有期徒刑三年六个月;对被告人孙某梅以非法买卖枪支罪免予刑事处罚。一审宣判后无抗诉、上诉