A Jurisprudential Thought On Xu Ting Case

Xu Ting's case has been a hotly debated topic on the internet since being disclosure. However, there have not been many scholars on criminal law involved. The reason for this situation is mainly because that there are not many legal problems to blame like the accurate conviction, the appropriate decision on the punishment. The case is a vivid and timely sample. But there would be many things to consider when we start to think out of the case. The argument on this case is not only based on the crime or non-crime problem, felony or misdemeanor, but also includes many modern judicial ideas just like the equal protection, procedural justice, jurisdiction independence, the criminal punishment adapts, and so on. It is more important that this kind of argue could be considered as a gamble between the simple morality of the people and the formal legal thought. This is why the topic could be so hotly debated. The article is divided into four parts:The first part is the criminal research on the determinations of guilty, discretion of punishment in the current law frame. At conviction, the author firstly focuses on some opinions. These opinions by some scholars consider the "Xu Ting" case as a civil one. They believe that unjust enrichment could be a proper navigation. The author's opinion is that this case could be seen as both a civil case and a criminal one. There is a compete gather between an unjust enrichment and a crime of property. Xu Ting's behavior should be considered as not only an unjust enrichment but also a crime. Thus, it should be punished by the criminal code. Then the author horizontally compared the crime on invasion with the crime on contract fraud, crime on credit fraud and theft. By the analysis on the objective aspect, the subject of a crime, the subjective aspect of a crime, the author believes that Xu Ting's behavior should fulfill the request of the criminal constitutes. So it should be considered as a theft. At punishment, it is a question that whether the subject of Xu Ting's theft could be considered to reach the edge of "especially huge" stage. So it determines that whether he should be punished by the life sentence, death penalty or property seize. Because of the extraordinary nature of the case, a life sentence might be over-convicted. However, such contradiction could be solved by the application of the second item of the 63rd clause of 'Criminal Law of the PRC'. But there are not enough samples for us to follow because the little use of this clause. In a result, there seems to be a mercy over the law. However, such a mercy, whatever the original intention is, whether the substantive justice becomes a truth, does not contribute to the construction of a society ruled by law. The question about who is entitled to make a request to the Supreme People's Court also be considered. The author's opinion is that every death penalty should be asked for a final judgment of the Supreme People's Court. Once the Supreme People's Court gives its decision, it would be an effective one. With the will of the Supreme People's Court, the case could not be appealed. So the first court is bound to draw on the defendant's right to appeal, by dodging the examination supervises by the second court. In a result, confusions might be aroused and procedural justice would be abandoned.The second part focuses on the conflict among the law, ethics and public opinions. In the first place, the author defined the meaning of morality and public opinion. Then the author looks for the real meanings of something really shows the demands of the moral demands of public opinion. The kind of behavior could be as a wrong way to do. It leads to a blind eye to the whole aspects of the affair. Because as long as the same moral demand exists, the same demands of public opinion will always arise. The public demand on the Xu Ting's case is that he should not be punished so much. This kind of demand could easily be fulfilled. But similar ones will come again. We cannot solve the problem in this way. The moral demand on the Xu Ting's case, as the author sees it, is that property should be equally protected–"theft on the financial organ"should not be a reason why he is over-punished. The public and ordinary citizens should be equally treated on the decision of the criminal punishment. The standard made by the judicial interpretation should be changed as the time goes. Those more "basic" demands has not been resolved in the judicial procedure. Also, it cannot be. The author believes that judicial supervision should be accepted by society– whether a moral or public opinion could only supervises the procedure. The injustice created by the substantive law can only be resolved by legislation.The third part focuses on the relationship between the media and the judiciary reflected by the "Xu Ting" case. The author believes that the media and the judiciary are two different natures. The press freedom and the judicial independence are the two core values of them. They have an internal unity. Social justice is a common goal that they are after. The judicial power, as a kind of country power, of course, has the "Incorrigibility". It might be abused. So it needs to be supervised by the people. Most citizens might not do it themselves, so the press, as a "supervisor of the society", should bear the task. Media makes trials open and transparent. It helps the people to achieve fairness and justice. So the media reported the incident to the administration of justice in favor of the right of citizens to monitor the implementation. There is the realization of justice and the establishment of judicial authority. However, due to the operation of the two values and determine the truth are different, but also the inevitable conflicts will happen. The society requires both the independence of the judiciary which can perform their duties, but also necessity for the judicial activities of the media coverage and monitoring. It will be a great loss to the society when losing any one of them. The author believes that there should be a balance between the media and the justice. We can get a win-win goal. Finally, by the analysis of the Xu Ting's case, the author believes that the press should make subjective reports instead of sensational hyping. Those kinds of things are not only against the right of the judiciary, but also a huge damage to the credibility of the media. The fourth part is compared with the "Miranda case" and the "Simpson case".The author thinks our country is currently lack of sophisticated judicial principal parts, media and the market of different opinions which could be an "activator" to the legislation. Attention on Xu Ting's case is more to a technological field but to a solid problem on how the power of the nation will be used. There is no denying the fact that these things could be such a pity.