娄秋琴律师就河南“天价过路费案”接受中央电视台采访

Concerning the judgement of Shi Jianfeng sentenced to life imprisonment by the verdict of crime of fraud, I think that many problems do exist.

1、在定性上，本人认为以诈骗罪论处不当，按照《刑法》第二百六十六条的规定，诈骗罪是指诈骗公私财物的行为，以军车欺骗高速公路经营者获取的免费通行，属于一种消极取得，根据罪刑法定的原则，其行为不符合诈骗罪的行为要件。

Qualitatively, I think it is not proper to determine that Shi Jianfeng commits crime of fraud. According to article 266 of Criminal Law, fraud means acts swindling property. But in this case, Shi Jianfeng deceived the high way and obtains free drives, this illegal profit is negative. So Shi Jianfeng’s behavior is not consistent with the elements of fraud.

2、在法律适用上，原审判决所依据的《最高人民法院关于审理非法生产、买卖武装部队车辆号牌等刑事案件具体应用法律若干问题的解释》虽未失效，但《刑法修正案七》已经将非法使用武装部队车辆号牌等专用标志的行为独立成罪，不论是从法律适用的层级效力还是时间效力来看，本案均应按非法使用武装部队专用标志罪论处。

In the application of law, judgment is based on the judicial interpretation issued by Supreme People's Court in 2002, although the interpretation has not yet expired, the "Criminal Law Amendment Seven" has a separate crime of acts of the  illegal use of armed forces license plates, so this case should be ruled by the illegally use of armed forces special marks. 

3、在量刑上，非法使用武装部队专用标志罪的最高刑期只能是七年有期徒刑，原审判决判处无期徒刑显然畸重。

In sentencing, the maximum sentence of the crime of  illegally use armed forces special marks is seven years imprisonment only, the original sentence of life imprisonment is apparently extremely heavy.

 4、在事实认定上，本案时建峰是否参与，参与的程度，案件是否还有其他共犯，车牌的来源，都是案件的关键事实，应当予以查清。

In identifying the facts, whether Shi Jianfeng participated, the degree of participation in the case, whether there are any other accomplices, the source of license plates are the key facts of this case, which should be ascertained.

由于原审判决时建峰并未提起上诉，判决已经生效，现原审法院已经依法启动再审程序，符合法律规定，期待法院能够给当事人作出一个公正的判决。

Shi Jianfeng didn't appeal and the judgement is already effective.Now the orignal court has legally startuped retrial procedure. I expect a fair judgement will be made.

二、Besides judicial justice, other issues have also come to the spotlight. Military vehicles receive special privileges in China, and often being remitted from traffic laws and toll fees. This has triggered some dissatisfaction from the public. What's your take on the cause of the phenomenon, and how to change the situaiton?

Louqiuqin: Military vehicles can exempt toll fees. It is defined in the regulations on the administration of toll roads. Just because military vehicles have this special privilege, some outlaws always try to escape toll fees or traffic punishment by forging, theft, buy, sell or illegally provide, use the military vehicles special marks such as license plates. To solve this problem, the first step is to abolish this privilege. Military and other social vehicles should equally be checked and pay tolls. For toll spending, it can be subsidized by other method such as appropriations. Only in this way, we can reduce the phenomenon that forging military license plate to escape fees or punishment.