Lawyer

Chapter 509

"Next, we will enter the link of proof and cross-examination. Do the prosecution and the defense and the defendant have any new evidence to submit?" asked the presiding judge.

"There is no new evidence to submit." Three parties said.

The evidence presented by the public prosecution agency is very simple, that is, the defendant's statement, Zheng Shaoming's and the victim's interrogation records, the testimony of the director of the neighborhood committee and the neighbors, and the rope used to bind people.

Wu Shanshan agreed with the facts of the case reflected in these evidences.After cross-examination one by one, Fang Yi did not raise any objection.

……

"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts.

Let the prosecutor speak first. " said the presiding judge.

"The presiding judge and the judges: The public prosecutor believes that the defendant Wu Shanshan illegally deprived the victim of her personal freedom by means of binding, and her behavior has constituted the crime of illegal detention, and it should be determined that this case has insulting circumstances, which should be listed in Article 230 of the Criminal Law Heavier punishment within the statutory penalty range stipulated in the first paragraph. It is recommended that the defendant Wu Shanshan be sentenced to three years in prison. Finished." The prosecutor said.

According to the provisions of Article 230 of the "Criminal Law", whoever illegally detains others shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.It can be seen that the prosecutor recommended the sentence according to the maximum limit.

The next thing was for the defendant to defend himself. Wu Shanshan still used the same set of words. Anyway, she killed the victim who she kidnapped to vent her anger, and did not detain him.

"The defender issued a defense opinion." The presiding judge said.

"The presiding judge, the judge: the defender believes that the defendant Wu Shanshan used ropes to bind the victim in the process of catching rape with the purpose of belittling, damaging the personality of others, and destroying the reputation of others, and placed the naked victim in the living room for neighbors to watch. Citizens' personality and reputation rights, their behavior does not constitute the crime of illegal detention, but the crime of insult. The reasons are as follows:
[-]. The crime of humiliation refers to acts that openly belittle or damage the personality of others or damage the reputation of others by violence or other methods, and the circumstances are serious.The crime of illegal detention refers to the act of illegally detaining others or depriving others of their personal freedom by other means.

In this case, the defendant Wu Shanshan tied up the naked victim in the living room after catching the rape, let the neighbors watch, and told the neighbors the fact that the victim had committed adultery with her husband. Her behavior was both insulting and deprived of the victim's personal freedom.

The defendant Wu Shanshan committed two criminal acts (binding and insulting) in order to humiliate the victim. The means and purpose of the two acts were implicated, and it is possible that they have committed two crimes respectively.According to the "Criminal Law", implicated offenders should be dealt with as a felony.

Under the circumstance that the two related crimes (crime of illegal detention and crime of insult) have the same statutory sentence, the defender believes that the defendant should be convicted and sentenced according to the purpose of the defendant's behavior.

After the defendant caught the rape, he dragged the naked victim to the living room and tied him up. After repeated persuasion from the neighbors, the victim was allowed to put on clothes. During the process, the defendant threatened to make the victim ashamed and pull the victim Let everyone see at the gate of the community.

It can be seen from this that the defendant achieved the purpose of humiliating the victim through binding, and binding was only a violent means to achieve insult, and insult was the defendant's purpose.Therefore, the defendant's behavior constituted the crime of insult.

24. With reference to the "Regulations of the Supreme People's Procuratorate on the Criteria for Filing Cases Directly Accepted by the People's Procuratorate for Investigation (Trial)" and the "Regulations on the Criteria for Filing Cases of Malfeasance and Torts" issued by the Supreme People's Procuratorate, it is stipulated that the staff of state organs use their powers to In the case of illegal detention, the illegal detention lasts for more than [-] hours before the case can be filed.

The evidence in the case shows that the defendant's binding behavior lasted less than two hours. The defender believes that when the criminal law and related judicial interpretations do not clearly stipulate the duration of illegal detention in the crime of ordinary illegal detention, it is not reasonable to treat ordinary people. The standard should not be stricter than the 24-hour standard in the above regulations.Therefore, the defender believes that the defendant tied up the victim for a short period of time, which is not enough to constitute the crime of illegal detention.

To sum up, the defender believes that, considering the cause of this case, the defendant's behavior should be classified as the crime of insult.In addition, in view of the fact that the victim was at fault, the defendant has no criminal record, and has shown some remorse, it is recommended that the defendant be sentenced to five months of criminal detention.complete. "Fang Yi said.

(The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice recently promulgated "Opinions on Several Issues Concerning Handling Criminal Cases of "Soft Violence"" (Fa Fa [2018] No. 1) stipulates that illegally detaining others More than three times, each time lasting more than four hours, or illegally detaining others for a cumulative time of more than twelve hours, shall be convicted and punished as the crime of illegal detention
The above-mentioned opinions are formulated for the special campaign against gangsters and evil. Judging from the duration of illegal detention, it is obviously stricter than the two previously issued regulations. Interested readers can check the relevant regulations)
……

"... Please the judicial police bring the defendant Wu Shanshan to the court. This case has been deliberated by the collegial panel and has reached a verdict. In view of the opinions of the prosecution and the defense, combined with the focus of disputes in this case, and based on the facts and evidence of this case, this court makes the following analysis:

This court believes that the defendant Wu Shanshan used violence to bind the naked victim in the living room with ropes during the rape, and let nine people watch.On the subjective aspect, it has the purpose of belittling, damaging the personality of others, and destroying the reputation of others. On the objective aspect, it blatantly uses violence and words to insult, which violates the personality and reputation rights of citizens. The circumstances are serious, and its behavior has constituted the crime of insult.

The method used by the defendant Wu Shanshan in the process of committing the crime of insult constitutes the crime of illegal detention, which is an implicated crime.In this case, the statutory penalties for the crime of insult and the crime of illegal detention are equally severe. Considering that the purpose of the defendant's crime is to insult others, each defendant should be convicted and punished for the crime of insult.

The facts of the prosecution's accusation of the defendant Wu Shanshan's crime are clear and the evidence is sufficient, but the charge of illegal detention is inappropriate and should be changed.

In view of the fact that the victim was also at fault, the defendant had a good attitude of pleading guilty after being brought to justice, and showed a certain degree of repentance. According to the provisions of the first paragraph of Article 240 of the "Criminal Law of the People's Republic of China", the judgment: the defendant Wu Shanshan committed the crime of insult and was sentenced to six months of criminal detention. months. " said the presiding judge.

The judgment result of the county court was not much different from what Fang Yi expected, and Fang Yi finally breathed a sigh of relief.

(End of this chapter)