2005年6月8日，被告人邢纠集被告人杨某某，驾驶羚羊1300轿车从陕西省宝鸡市返回台州市椒江区预谋再次实施抢劫（之前，邢某某也曾实施抢劫等犯罪行为。）。两人在椒江区翠华新村邢某某的暂住处，花几元钱购来16响烟花一只及胶带纸，并准备了废弃的电话线，将烟花分成8响一份，然后剥去烟花外包装纸，贴上数根废电话线，再用胶带纸缠绕，制成2个类似爆炸装置的物品。同时，2人还购买了假发等作案工具，一并存放在轿车的后备箱内，备作抢劫时使用。同月13日夜，公安干警在翠华新村邢某某的暂住处以抢劫、强奸嫌疑抓获被告人邢某某、杨某某。被告人杨某某当即主动供认制造爆炸物品作为抢劫时使用的事实，并交代轿车和爆炸物品的藏匿地点。随后，公安干警在车库内扣缴了轿车及两捆物品、假发等物，经浙江省公安厅、台州市公安局椒江分局检验分别测定：2捆物品内含炸药成分，系爆炸装置。

控方认为：

被告人邢某某伙同杨某某以非法占有为目的，为劫取他人财物而积极准备作案工具制造了爆炸物品，其行为均已触犯《中华人民共和国刑法》第一百二十五条第一款之规定，应以非法制造爆炸物品罪追究其刑事责任。

争议焦点及辩护过程：

1、杨某某犯罪行为的定性

侦查机关在抓获杨某某后，对其定性为涉嫌抢劫罪，我在多次会见杨某某后，进一步了解了案件的事实经过，也认为侦查机关对杨某某的定性应该是正确的，且杨某某的行为还存在一个法定情节，即抢劫还处在预备阶段。

控方观点：杨某某应构成非法制造爆炸物品罪。理由为：1、杨某某所参与制作的物品经鉴定为“爆炸装置”；2、杨某某为实施一个犯罪目的，而其犯罪行为方法和结果同时触犯了两个罪名，即为了抢劫目的而非法制造爆炸物品，根据重行为吸引轻行为原则，指控杨某某构成非法制造爆炸物品罪。

为此，我又多次会见杨某某，了解其犯罪意图及该“炸药”的制造情节，并认真、细致的查阅和分析了整个卷宗，认为控方对本案杨某某的定性不当，杨某某的行为应构成抢劫预备。理由为：1、杨某某所制造的物品不属刑法意义上的爆炸装置，如果是爆炸装置的话，不但要同时具备炸药、盛装物、起爆器材三要素，而且该三要素必须要能互相联系，即在点燃起爆器材后能引爆盛装物中的炸药，致使达到爆炸的功效。本案中两被告人所制造的“炸药”经椒江区公安局等有关人员进行检验鉴定，认为其符合了爆炸装置的构成要件，但并没有明确该导火线是不是和炸药有联系，也就是其导火线在点燃后能不能正常燃烧且引爆炸药。而根据两被告人的供述，均讲到他们所制造的“炸药”是假炸药，就是用买来的烟花进行拆装，拆去包装后再以一般炸药的形状进行装置，并用电线、胶布进行固定。我在会见杨某某时，杨某某也曾多次向我陈述，与邢某某在制造该“炸药”时，邢某某曾将原有烟花上的导火线抽掉了，现有的导火线就是电线一类的物品，根本不能正常点燃，即使点燃也不能引爆炸药，只是用来吓吓人的。根据上述两被告人的陈述，如果该物品确如他们所说，那就是是假炸药，现有的导火线不会引爆炸药的话，那么其所谓的导火线就不属于刑法意义上爆炸装置三要素中的起爆器材要素；2、本案中所谓的“爆炸装置”，实际上就是烟花爆竹，杨某某等人仅仅是将其进行拆分，而烟花爆竹不属于刑法规定的爆炸物的调整范围；3、在使用目的上，两被告人也是为了日后抢劫时，用来恐吓受害人的，而不是用来引爆，更何况事实上根本无法正常引爆。

2、杨某某是否构成自首

根据起诉书中的“本院认为”部分，并没有认定杨某某系自首。对此，我认为杨某某应属自首，理由：1、根据公安机关提供的查破经过，公安机关抓获邢某某与杨某某的根据是周某的报案，而周某报案的内容则与杨某某所涉及的犯罪事实无关，也就是说公安机关并不是因为怀疑杨某某涉嫌制造爆炸物品或抢劫将其抓获的。2、根据邢某某与杨某某向公安机关交待制造爆炸物品事实的时间，被告人杨某某要早于邢某某，杨某某在公安机关的第一份笔录中就陈述了整个犯罪经过，且从该笔录可反映出，之前公安机关仅仅知道在邢某某的车箱里存放有炸药形状的物品，但并不掌握该物品是从何而来，又是做什么用的，全部事实均是杨某某主动向公安机关交待的。根据上述事实，杨某某虽然被采取了强制措施，但杨某某所交待自己的犯罪事实公安机关并未掌握，且所供述的罪行也与公安机关抓获当时所根据的事实及罪名不同，应该符合特殊自首的构成条件，应认定其存在自首情节。

法院认为

虽然，本案查获的二捆物品经公安部门检验认定含有炸药成份属于爆炸装置，但并非刑法意义上的爆炸物，最高人民法院《关于审理非法制造、买卖、运输枪支、弹药等刑事案件具体应用法律若干问题的解释》并没有将烟花爆竹列入刑法规定的爆炸物的调整范围，只将制造烟花爆竹的主要原料烟火药列为刑法调整的对象，而制造烟火药达到一定量才能构成犯罪，本案中，被告人将烟火爆竹用废电线、胶布缠绕，改制成所谓的爆炸装置，不但不能提交爆炸威力，反而降低原有威力，不足以危害公共安全，即犯罪客体不构成，其主观上仅为实施抢劫而准备了恐吓被害人时使用的作案工具，不符合非法制造爆炸物罪的构成要件，属于抢劫预备。公安机关虽以犯罪嫌疑抓获被告人杨某某，但仅怀疑其参与绑架、抢劫丁某某、郭某某，并未掌握杨某某为实施抢劫而准备作案工具爆炸物品的事实，杨某某主动交代犯罪事实，并带公安干警查获作案工具，应当认定其构成自首，依法可予以从轻处罚。并认为辩护人所辩与事实相符，予以采纳，依法可以减轻处罚。

浙江利群律师事务所  卢华富律师

On June 8, 2005, defendant Xing gathered defendant Yang Moumou and drove the Antelope 1300 sedan back from Baoji City, Shaanxi Province to Jiaojiang District, Taizhou City to plan another robbery (previously, Xing Moumou had also committed criminal acts such as robbery). The two of them spent a few yuan at their temporary residence in Xingmou, Cuihua New Village, Jiaojiang District, to purchase a 16 ring fireworks and tape paper. They prepared discarded telephone cables, divided the fireworks into 8 rings, and then peeled off the outer packaging paper of the fireworks, attached several waste telephone cables, and wrapped them with tape paper to make two items similar to explosive devices. At the same time, the two people also purchased wigs and other tools for the crime, which were stored in the trunk of the car for use in robbery. On the night of the same month, public security officers arrested the defendants Xing and Yang on suspicion of robbery and rape at the temporary residence of Xing in Cuihua New Village. The defendant Yang immediately voluntarily confessed to the fact that he used explosives as a means of robbery, and explained the hiding place of the car and explosives. Subsequently, police officers confiscated cars, two bundles of items, wigs, and other items in the garage. After inspection by the Zhejiang Provincial Public Security Department and the Jiaojiang Branch of the Taizhou Public Security Bureau, it was determined that the two bundles of items contained explosive components and were explosive devices.

The prosecution believes that:

The defendant Xing, along with Yang, actively prepared tools for the crime of stealing others' property and manufactured explosives for the purpose of illegal possession. Their actions have violated Article 125, Paragraph 1 of the Criminal Law of the People's Republic of China, and they should be held criminally responsible for the crime of illegal manufacturing of explosives.

Dispute focus and defense process:

1. Qualitative Analysis of Yang's Criminal Behavior

After capturing Yang, the investigation authorities classified him as suspected of robbery. After multiple meetings with Yang, I further understood the facts of the case and believed that the investigation authorities' characterization of Yang should be correct. Moreover, there is a legal circumstance in Yang's behavior, that is, the robbery is still in the preparatory stage.

The prosecution's viewpoint: Yang should constitute the crime of illegally manufacturing explosive materials. The reason is: 1. The item that Yang participated in the production has been identified as an "explosive device"; 2. Yang was charged with the crime of illegally manufacturing explosives for the purpose of robbery, in order to carry out a criminal purpose with the method and result of his criminal behavior. Based on the principle of heavy behavior attracting light behavior, Yang was charged with constituting the crime of illegally manufacturing explosives.

For this reason, I have met with Yang multiple times to understand his criminal intent and the manufacturing plot of the "explosive". I have carefully and meticulously reviewed and analyzed the entire file, and believe that the prosecution's characterization of Yang in this case is inappropriate. Yang's behavior should constitute a preparation for robbery. The reason is: 1. The items manufactured by Yang do not belong to explosive devices within the meaning of criminal law. If they are explosive devices, they must not only have three elements: explosives, containers, and initiating equipment, but also must be interconnected, that is, they can ignite the explosives in the containers after igniting the initiating equipment, thereby achieving the effect of explosion. The "explosives" manufactured by the two defendants in this case have been inspected and identified by relevant personnel such as the Jiaojiang District Public Security Bureau, and it is believed that they meet the constitutive requirements of the explosive device. However, it is not clear whether the fuse is related to the explosive, that is, whether the fuse can burn normally and ignite the explosive after ignition. According to the confessions of the two defendants, they both mentioned that the "explosives" they manufactured were fake explosives, which were dismantled using purchased fireworks, unpacked, and then installed in the shape of ordinary explosives, fixed with wires and tape. When I met with Yang, Yang also stated to me multiple times that while manufacturing the "explosive" with Xing, Xing had removed the fuse from the original fireworks. The existing fuse is just an item like an electric wire that cannot be ignited normally. Even if ignited, it cannot detonate the explosive, it is only used to scare people. According to the statements of the two defendants mentioned above, if the item is indeed what they said, it is a fake explosive, and the existing fuse will not detonate the explosive, then its so-called fuse does not belong to the initiating equipment element of the three elements of explosive devices in the meaning of criminal law; 2. The so-called "explosive device" in this case is actually fireworks and firecrackers. Yang and others only split it, and fireworks and firecrackers do not fall within the scope of adjustment of explosives stipulated in the criminal law; 3. In terms of usage purposes, the two defendants were also used to intimidate the victims during future robberies, rather than to detonate them, let alone the fact that they could not detonate normally.

2. Does Yang constitute voluntary surrender

According to the "opinion of this court" section in the indictment, it was not determined that Yang surrendered himself. In this regard, I believe that Yang should have voluntarily surrendered. The reasons are as follows: 1. According to the investigation provided by the public security organs, the basis for the arrest of Xing and Yang by the public security organs is Zhou's report, and the content of Zhou's report is unrelated to the criminal facts involved by Yang. That is to say, the public security organs did not arrest Yang on suspicion of manufacturing explosives or robbery. 2. According to the time when Xing and Yang confessed the fact of manufacturing explosives to the public security organs, the defendant Yang was earlier than Xing. Yang stated the entire crime process in the first record of the public security organs, and it can be reflected from the record that the public security organs only knew that there were explosive shaped items stored in Xing's trunk before, but did not know where the items came from or what they were used for, All the facts were voluntarily confessed by Yang to the public security organs. Based on the above facts, although Yang was taken compulsory measures, the public security organs did not have the knowledge of the criminal facts that Yang confessed to him, and the crimes he confessed were also different from the facts and charges based on which the public security organs arrested him at the time. Therefore, it should meet the constitutive requirements of special voluntary surrender and be determined that he has committed a voluntary surrender.

The court held that

Although the two bundles of items seized in this case were found by the public security department to contain explosive components and belong to explosive devices, they are not explosives within the meaning of criminal law. The Supreme People's Court's "Interpretation on the Specific Application of Laws in Criminal Cases of Illegal Manufacturing, Trading, Transport of Firearms, Ammunition, and Other Matters" did not include fireworks and firecrackers in the scope of adjustment of explosives specified in the Criminal Law, Only the main raw material for producing fireworks and firecrackers, pyrotechnic powder, is listed as the object of criminal law adjustment, and the production of pyrotechnic powder can only constitute a crime if a certain amount is reached. In this case, the defendant wrapped the fireworks and firecrackers with waste wires and tape, and transformed them into so-called explosive devices. Not only can they not submit the explosive power, but they also reduce the original power, which is not enough to endanger public safety, that is, the criminal object does not constitute a crime, Subjectively, it only prepares the tools used to intimidate victims for the purpose of committing robbery, which does not meet the constitutive requirements of the crime of illegally manufacturing explosives and belongs to robbery preparation. Although the public security organs arrested the defendant Yang on suspicion of committing a crime, they only suspected his involvement in the kidnapping and robbery of Ding and Guo, and did not grasp the fact that Yang had prepared tools and explosives for the purpose of committing the robbery. Yang voluntarily confessed the criminal facts and led the public security officers to investigate the tools of the crime. He should be deemed to have surrendered himself and may be given a lighter punishment according to law. And consider that the defense provided by the defender is consistent with the facts, and adopt it, which can reduce the punishment in accordance with the law.

Lawyer Lu Huafu from Zhejiang Liqun Law Firm