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Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Issuing the Opinions on Legally Punishing the Crimes of Abducting and Trafficking in Women and Children
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最高人民法院、最高人民检察院、公安部、司法部印发《关于依法惩治拐卖妇女儿童犯罪的意见》的通知
[现行有效]
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【法宝引证码】
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Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on Issuing the Opinions on Legally Punishing the Crimes of Abducting and Trafficking in Women and Children
(No.7 [2010] of the Supreme People's Court)
The higher people's courts, the people's procuratorates, the departments (bureaus) of public security and the departments (bureaus) of justice of all provinces, autonomous regions and municipalities directly under the Central Government; the Military Court and Procuratorates of the People's Liberation Army; the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region and the People's Procuratorate, the Public Security Bureau and the Justice Bureau of Xinjiang Production and Construction Corps:
In order to strengthen the judicial protection of the legitimate rights and interests of women and children and legally punish the crimes of abducting and trafficking in women and children, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice have formulated the Opinions on Legally Punishing the Crimes of Abducting and Trafficking in Women and Children, which are hereby issued to you for your earnest implementation.
Supreme People's Court
Supreme People's Procuratorate
Ministry of Public Security
Ministry of Justice
March 15, 2010
Opinions on Legally Punishing the Crimes of Abducting and Trafficking in Women and Children
To strengthen the judicial protection of the legitimate rights and interests of women and children and carry out the China National Action Plan against Abducting and Trafficking in Women and Children (2008-2012), in accordance with the provisions of the Criminal Law, the Criminal Procedural Law and other relevant laws and judicial interpretations, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice hereby put forward the following opinions on legally punishing the crimes of abducting and trafficking in women and children:
| | 最高人民法院、最高人民检察院、公安部、司法部印发《关于依法惩治拐卖妇女儿童犯罪的意见》的通知
（法发〔2010〕7号）
各省、自治区、直辖市高级人民法院、人民检察院、公安厅（局）、司法厅（局），解放军军事法院、军事检察院，新疆维吾尔自治区高级人民法院生产建设兵团分院，新疆生产建设兵团人民检察院、公安局、司法局：
为加大对妇女、儿童合法权益的司法保护，依法惩治拐卖妇女、儿童犯罪，现将最高人民法院、最高人民检察院、公安部、司法部《关于依法惩治拐卖妇女儿童犯罪的意见》印发给你们，请认真贯彻执行。
最高人民法院
最高人民检察院
公安部
司法部
二○一○年三月十五日
关于依法惩治拐卖妇女儿童犯罪的意见
为加大对妇女、儿童合法权益的司法保护力度，贯彻落实《中国反对拐卖妇女儿童行动计划（2008-2012）》，根据刑法、刑事诉讼法等相关法律及司法解释的规定，最高人民法院、最高人民检察院、公安部、司法部就依法惩治拐卖妇女、儿童犯罪提出如下意见：
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I. Overall Requirements
| | 一、总体要求
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1. Legally intensifying efforts in cracking down on crimes to ensure social harmony and stability. Since the special action on cracking down on the crimes of abducting and trafficking in women and children was initiated countrywide in 1991, a large amount of criminal cases about abducting and trafficking in women and children have been solved and legally handled, and the perpetrators have been given severe punishments pursuant to law. In 2008, a total of 1,353 criminal cases on abducting and trafficking in women and children were tried and closed by the courts across the country, an increase by 9.91% from 2007; and a total of 2,161 criminals started serving effective sentences, up by 11.05% on a year-on-year basis, of which 1,319 criminals were sentenced to fixed-term imprisonment of five years or more, life imprisonment or death, up by 10.1% on a year-on-year basis, and the severe punishment rate was 61.04%, 45.27% higher than the severe punishment rate of all criminal cases over the same period. In 2009, a total of 1,636 criminal cases on abducting and trafficking in women and children were tried and closed by the courts across the country, an increase by 20.9% from 2008; and a total of 2,413 criminals started serving effective sentences, up by 11.7% on a year-on-year basis, of which 1,475 were sentenced to fixed-term imprisonment of five years or more, life imprisonment or death, up by 11.83% on a year-on-year basis.
However, we must bear in mind that in recent years, for various reasons, the upward trend of crimes of abducting and trafficking in women and children has not been effectively curbed in some regions. Such crimes severely invade the personal rights of the abducted and trafficked women and children, result in the separation of family members and even the death of them and ruin of the whole family, and severely endanger the social harmony and stability. The people's courts, people's procuratorates, public security organs and judicial administrative organs shall, according to the overall objectives of safeguarding the vital interests of the people and ensuring social harmony and stability, increase the momentum of suppression of such crimes, and resolutely and effectively curb the upward trend of crimes of abducting and trafficking in women and children.
| | 1.依法加大打击力度，确保社会和谐稳定。自1991年全国范围内开展打击拐卖妇女、儿童犯罪专项行动以来，侦破并依法处理了一大批拐卖妇女、儿童犯罪案件，犯罪分子受到依法严惩。2008年，全国法院共审结拐卖妇女、儿童犯罪案件1353件，比2007年上升9.91%；判决发生法律效力的犯罪分子2161人，同比增长11.05%，其中，被判处五年以上有期徒刑、无期徒刑至死刑的1319人，同比增长10.1%，重刑率为61.04%，高出同期全部刑事案件重刑率45.27个百分点。2009年，全国法院共审结拐卖妇女、儿童犯罪案件1636件，比2008年上升20.9%；判决发生法律效力的犯罪分子2413人，同比增长11.7%，其中被判处五年以上有期徒刑、无期徒刑至死刑的1475人，同比增长11.83%。
但是，必须清醒地认识到，由于种种原因，近年来，拐卖妇女、儿童犯罪在部分地区有所上升的势头仍未得到有效遏制。此类犯罪严重侵犯被拐卖妇女、儿童的人身权利，致使许多家庭骨肉分离，甚至家破人亡，严重危害社会和谐稳定。人民法院、人民检察院、公安机关、司法行政机关应当从维护人民群众切身利益、确保社会和谐稳定的大局出发，进一步依法加大打击力度，坚决有效遏制拐卖妇女、儿童犯罪的上升势头。
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2. Attaching importance to cooperation and coordination to form an effective resultant force. The people's courts, people's procuratorates and public security organs shall perform their duties and responsibilities, and support and cooperate with each other, to jointly improve the quality and efficiency of case handling and ensure the consistency between the legal effects and the social effects of case handling. The justice administrative organs shall really do a good job in providing legal aid in the relevant cases, and safeguard the legitimate rights and interests of the parties concerned. All local judicial organs shall unify their ideas, further strengthen the inter-regional and inter-departmental cooperation in the relevant cases, and try their best to form an overall resultant force in severely punishing the crimes of abducting and trafficking in women and children pursuant to law.
| | 2.注重协作配合，形成有效合力。人民法院、人民检察院、公安机关应当各司其职，各负其责，相互支持，相互配合，共同提高案件办理的质量与效率，保证办案的法律效果与社会效果的统一；司法行政机关应当切实做好有关案件的法律援助工作，维护当事人的合法权益。各地司法机关要统一思想认识，进一步加强涉案地域协调和部门配合，努力形成依法严惩拐卖妇女、儿童犯罪的整体合力。
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3. Accurately carrying out policies to ensure case-handling effects. The crimes of abducting and trafficking in women and children usually involve many people and links. We shall, under the criminal policy of combining leniency with rigidity and the basic criminal law principle that the severity of punishment must be consistent with the crime committed and criminal liability assumed by an offender, comprehensively consider the position, role and dangerousness of a criminal in a joint offence, and accurately sentence the criminal pursuant to law. We shall focus on firmly and severely punishing according to law those who are ringleaders, organizers or masterminds of crimes, participants in many crimes, abductors or traffickers of many persons or repeated offenders and those who shall be otherwise severely and heavily punished. Where a severe punishment or even the death penalty shall be imposed upon a convict of a serious crime, such punishment must be given with a firm hand. We shall pay attention to eradicating the “buyer's market” and curb the crimes of abducting and trafficking in women and children at the source. If a person who buys a woman or child abducted for trafficking shall be subject to criminal liability, we shall resolutely bring such a person to justice pursuant to law. Meanwhile, for those who shall or may be subject to a lenient punishment, we shall, on the basis of giving overall consideration to the facts, nature, circumstances and degree of damage of a crime, impose a lenient punishment pursuant to law and policy, so as to dissolve crimes and encourage culprits to repent and make a fresh start.
| | 3.正确贯彻政策，保证办案效果。拐卖妇女、儿童犯罪往往涉及多人、多个环节，要根据宽严相济刑事政策和罪责刑相适应的刑法基本原则，综合考虑犯罪分子在共同犯罪中的地位、作用及人身危险性的大小，依法准确量刑。对于犯罪集团的首要分子、组织策划者、多次参与者、拐卖多人者或者具有累犯等从严、从重处罚情节的，必须重点打击，坚决依法严惩。对于罪行严重，依法应当判处重刑乃至死刑的，坚决依法判处。要注重铲除“买方市场”，从源头上遏制拐卖妇女、儿童犯罪。对于收买被拐卖的妇女、儿童，依法应当追究刑事责任的，坚决依法追究。同时，对于具有从宽处罚情节的，要在综合考虑犯罪事实、性质、情节和危害程度的基础上，依法从宽，体现政策，以分化瓦解犯罪，鼓励犯罪人悔过自新。
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II. Jurisdiction
| | 二、管辖
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4. A criminal case of abducting and trafficking in women and children shall be under the jurisdiction of the judicial organ at the place where the crime is committed pursuant to law. The place where a crime of abducting and trafficking in women and children is committed shall include the places of abduction, transition, trafficking and transportation. Where it is more appropriate for the judicial organ at the place where the criminal suspect or defendant resides to exercise the jurisdiction, such judicial organ may exercise the jurisdiction.
| | 4.拐卖妇女、儿童犯罪案件依法由犯罪地的司法机关管辖。拐卖妇女、儿童犯罪的犯罪地包括拐出地、中转地、拐入地以及拐卖活动的途经地。如果由犯罪嫌疑人、被告人居住地的司法机关管辖更为适宜的，可以由犯罪嫌疑人、被告人居住地的司法机关管辖。
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5. Where the judicial organs of two or more regions have jurisdiction over a same criminal case, the judicial organ which first accepts the case shall exercise the jurisdiction. Where there are a great number of criminal suspects or defendants or abducted and trafficked women and children, and two or more places of commission of crime are involved, the judicial organ at the major place of commission of crime or at the place where the principal criminal suspect or defendant resides may exercise the jurisdiction.
| | 5.几个地区的司法机关都有权管辖的，一般由最先受理的司法机关管辖。犯罪嫌疑人、被告人或者被拐卖的妇女、儿童人数较多，涉及多个犯罪地的，可以移送主要犯罪地或者主要犯罪嫌疑人、被告人居住地的司法机关管辖。
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6. Where two or more relatively fixed criminal suspects or defendants respectively commit criminal activities in a certain stage at the place of abduction, transition or trafficking, the crimes cover extensive regions and it is difficult to exercise centralized jurisdiction over the whole case, the judicial organs at the places of abduction, transition and trafficking may exercise jurisdiction over such separate criminal activities of abduction, transfer and trafficking respectively.
| | 6.相对固定的多名犯罪嫌疑人、被告人分别在拐出地、中转地、拐入地实施某一环节的犯罪行为，犯罪所跨地域较广，全案集中管辖有困难的，可以由拐出地、中转地、拐入地的司法机关对不同犯罪分子分别实施的拐出、中转和拐入犯罪行为分别管辖。
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7. In case of any dispute over jurisdiction, all parties concerned shall, under the principles of helping to quickly ascertain criminal facts and timely rescue the abducted and trafficked women and children and providing conveniences for prosecution and trial, settle the dispute by consultations as soon as possible within the statutory period. If the consultations fail, the dispute shall be reported to their common higher authority for specified jurisdiction.
．．．．．． | | 7.对管辖权发生争议的，争议各方应当本着有利于迅速查清犯罪事实，及时解救被拐卖的妇女、儿童，以及便于起诉、审判的原则，在法定期间内尽快协商解决；协商不成的，报请共同的上级机关确定管辖。
正在侦查中的案件发生管辖权争议的，在上级机关作出管辖决定前，受案机关不得停止侦查工作。
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