Lawyer

Chapter 266 This is a mess!

"I disagree with you on whether Du Jinquan's behavior is a murder. The determination of the murder should follow the provisions of the third paragraph of Article No. 20 of the "Criminal Law", and take "violent crimes that seriously endanger personal safety" as the grasp. standard.

I have no objection that Du Jinquan's pushing and kicking behaviors at the beginning are not 'assault'.But from the moment he took out the machete from the car and started hitting Sun Kui, I think the nature of his behavior has been upgraded to a violent crime.

Moreover, Du Jinquan's attack behavior at that time was particularly vicious. The machete he held was a controlled device that could easily cause death or injury. At that time, Du Jinquan drank alcohol again. are in real, imminent and serious danger.

You also said just now that Du Jinquan is not sure whether he intends to kill or hurt. This is the characteristic of many murderous acts, but it is not an obstacle to identification.Therefore, I think Du Jinquan's behavior meets the criteria for identifying a "murder" and should be identified as a "murder". After Fang Yi finished speaking, he looked at the two prosecutors opposite him with firm eyes.

There is a reason why Fang Yi first emphasized that Du Jinquan’s behavior was a “murder”. According to the third paragraph of Article No. 20 of the Criminal Law, “Those who are committing an assault, homicide, robbery, rape, kidnapping or other serious threats to personal safety If a person commits a violent crime and takes defensive behavior, causing casualties to the unlawful offender, it is not considered excessive defense and shall not bear criminal responsibility.”This kind of justifiable defense is usually referred to as "special defense" in judicial practice.

Fang Yi's purpose is to define Sun Kui's behavior as a special defense, and finally determine that Sun Kui is not an excessive defense, but to do this, he must first find a support point, and Du Jinquan's behavior is just in line with "murder". The characteristics provided Fang Yi with a support point.

"Lawyer Fang, you continue." The senior female prosecutor nodded.

"Second, the issue of whether Du Jinquan's infringement is "ongoing".

Personally, I think that until Du Jinquan left the scene, his infringement has been in a state of 'in progress' and has not ended. "Fang Yi said.

"I also looked at the scroll. After Du Jinquan dropped the machete and Sun Kui grabbed the machete, Du Jinquan's infringement should be considered as over. He has no infringement on Sun Kui. So I think since Sun Kui got the machete , Du Jinquan's infringement has come to an end." Cao Xiaoxue took over the words and said.

"Lawyer Fang, tell me your reasons." The senior female prosecutor looked at Fang Yi and said.

"I don't agree with Prosecutor Cao's opinion.

In my opinion, judging whether the violation is over should be based on whether the offender has substantially left the scene and whether there is a possibility of continuing the attack or launching another attack.

After Sun Kui grabbed the machete, Du Jinquan rushed to fight for it immediately. The infringement did not stop with the change of hands of the machete. Du Jinquan's snatching of the machete proved that he still had the intention to infringe subjectively.Later, Du Jinquan was stabbed and injured by Sun Kui, and after being injured, Du Jinquan immediately ran to the car where the machete was hidden. Sun Kui was afraid of Du Jinquan's revenge at this time.

Sun Kui chased him twice but missed. After Du Jinquan ran away from the car, he left the scene, and Sun Kui stopped the pursuit.Therefore, when Sun Kui grabbed the machete and counterattacked, Du Jinquan neither gave up the attack nor left the scene substantially, so it cannot be considered that the infringement has stopped.The violation did not end until Du Jinquan fled the scene. "Fang Yi said.

"Well, you continue." The senior female prosecutor continued.

"Thirdly, regarding whether Sun Kui's behavior is justifiable self-defense.

In my opinion, Sun Kui's actions belonged to justifiable self-defense, which complied with the provisions of the third paragraph of Article No. 20 of the "Criminal Law", and belonged to special self-defense. Fang Yi said: "I don't know what do you think of this?" "

According to Cao Xiaoxue's personality, even if Fang Yi didn't ask, she would refute, so Fang Yi directly asked the opinions of the two prosecutors opposite.

"I think Sun Kui himself suffered less damage, but his defensive behavior resulted in the death of Du Jinquan. Through the comparison of the injuries of the two, it is obvious that Sun Kui's defensive behavior was excessive defense." Cao Xiaoxue said.

"Lawyer Fang, you said that Sun Kui's behavior is a special defense. What is the reason?" asked the senior female prosecutor.

"In my opinion, illegal infringement includes two parts, actual harm and dangerous behavior. Justifiable defense can also be implemented for dangerous behavior.

In this case, the comparison of Sun Kui's and Du Jinquan's injuries is indeed inappropriate, but one should not only look at the actual harmful behavior (the actual injury suffered) and ignore the dangerous behavior.

If the result of actual harmful behavior is used as the criterion for judging legitimate defense, the defender can only implement defense after the violent crime has caused certain harm. The legal establishment scope of justifiable defense has been narrowed, and this standard is inconsistent with the original intention of the legislation.

In this case, Du Jinquan used a machete to 'assault', and Sun Kui took a defensive act during the process of snatching the machete and caused his death. According to the provisions of Article No. 20 of the "Criminal Law", Sun Kui's behavior should not be regarded as excessive defense. criminally responsible.In my opinion, whether Sun Kui himself was injured or the severity of the injury has no effect on the determination of justifiable self-defense. "Fang Yi said.

The two parties came and went, and the exchange of opinions lasted for more than an hour. After Fang Yi submitted his lawyer's opinion, he left the procuratorate and did everything he had to do. It is not known whether the case will be transferred to the court.

Cao Xiaoxue tidied up the documents on the table and said, "Sister Li, what do you think of this case?"

"My opinion is similar to that of Attorney Fang. When I read the case file yesterday afternoon, I also felt that Sun Kui's case should not be classified as the crime of intentional injury, but should be classified as self-defense.

I have confronted this lawyer Fang before, and he is still very good, not the kind of lawyer who messes around. " Said the senior female prosecutor called Sister Li by Cao Xiaoxue.

"Well, in fact, my master (Li Bin) also said that this case should not be classified as the crime of intentional injury, but they had different opinions in the bureau, so they sent the case over." Cao Xiaoxue said.

"This matter may not be as simple as you think. They have already filed a case. If they want to dismiss the case according to the relevant regulations, they have to listen to the opinions of our procuratorate. They have different opinions internally, and they are afraid that we will disagree, so..., Of course, this is my guess." Inspector Li pouted.

"Okay! It's a mess." Cao Xiaoxue felt that the case was not complicated, but the procedure was quite complicated, and she was a little confused.

(End of this chapter)