Lawyer

Chapter 578 Imaginary Defense
"I'm not going to comment on the right or wrong of what you said. You first talk about the elements of self-defense." Fang Yi finished speaking and looked at her with a smile.

"Justifiable self-defense has five elements:

[-]. There must actually be an illegal infringement.

Second, the unlawful infringement must be ongoing.

[-]. The defensive act must be carried out against the unlawful infringer himself.

[-]. The defense must be to protect the state, the public interest, the person and property or other rights of oneself or others from ongoing illegal infringement

[-]. The defense cannot obviously exceed the necessary limit and cause serious damage.Of course, except for special defense. "Zhou Ying thought for a while, and said the elements of legitimate defense like an endorsement.

"Did Yan Jianshun, the victim in this case, actually commit any illegal infringement?" Fang Yi asked.

"It seems... there is no illegal infringement. But someone did want to break into the house and enter the defendant's house..." Zhou Ying looked at Fang Yi in a daze after finishing speaking.

"You mean, the moon is dark and the wind is high. Due to environmental restrictions, the defendant thinks that Yan Jianshun is the one who broke into the house before, right?" Fang Yi asked.

"Yes, that's what it means." Zhou Ying nodded uncontrollably.

"What you said is an assumption. The victim did not hold any murder weapon in his hand, nor did he commit any attack. Moreover, according to the defendant's recollection, the gate of the orchard was a wooden fence. They might not have closed it when they walked in a hurry. In this way, the victim's illegal infringement How is behavior determined?
If the unlawful infringement does not really exist, it is just the defendant's subjective imagination or speculation, thinking that some kind of unlawful infringement has occurred, and based on this misunderstanding, he acts as a "defense" against the victim. For: imaginary defense. After Fang Yi finished speaking, he glanced at her, picked up the teacup and began to drink tea, letting Zhou Ying digest what he just said.

"Lawyer Fang, what are the characteristics of this hypothetical defense? Tell me about it.

I seem to have heard the teacher say it during the exam before, but...you know, it was all for the exam at that time, and now it is for improving skills and making money. "Zhou Ying smiled and took out her notebook and pen, ready to record.

"Okay, let me explain to you. When I finish, you can compare this case and practice it. Otherwise, even if you memorize the entire criminal law, it will be useless if you don't need it." Fang Yi smiled. road.

Zhou Ying nodded like a chicken pecking at broken rice, agreeing with Fang Yi's words very much.

"In general, a hypothetical defense has four characteristics:
[-]. Subjectively, the perpetrator has the intention of justifiable self-defense, thinking that he is justifiably defending himself against the unlawful infringer.

Second, objectively, there is no "illegal infringement" in fact.

[-]. It has a certain degree of social harm, that is, the "defense" behavior of the actor who implements the imaginary defense objectively infringes on the person or other rights of the person who has not illegally infringed.

[-]. The hypothetical defensive behavior of the perpetrator produced a result that endangered the society. "

After finishing speaking, Fang Yi saw that Zhou Ying kept writing with a pen in his hand, studying very seriously, and then said: "Forget it! Buy one get one free, and I will expand your knowledge. Imaginary defense often occurs in two Occasions:
First, it occurs on occasions where there is no illegal infringement at all.For example, when walking at night and encountering someone, because robbery cases often occur around, the perpetrator mistakenly believes that the coming person is not good for him, so he implements "defense" and preemptively strikes.

Second, in the process of legitimate defense, "defense" is carried out against other people who have not participated in the unlawful infringement.For example, after one party is beaten, they mistakenly believe that the third person who came to persuade the fight is an accomplice, and implement a counterattack 'defense'.

But you should pay attention, it does not mean that the perpetrator subjectively believes that there is an infringement, and it will definitely constitute a hypothetical defense.Hypothetical defense must be premised on certain objectivity and must have certain reasonable grounds.Otherwise, it is easy to be identified as the crime of intentional injury or intentional homicide. "

"Lawyer Fang, are there any more?" Zhou Ying asked without stopping to write.

"You can't chew too much! You must understand this knowledge point thoroughly, and you can't swallow it whole.

Go back and compare this case with this knowledge point to think about it carefully. You should follow the concept that less is more. If you can learn one or two knowledge points thoroughly in each case, within three years, your professional ability will surpass the same batch. Trainee lawyers are a few blocks away, work hard!future barrister. "Fang Yi laughed.

"When you say that, I suddenly feel light and light. If it weren't for the floor blocking me, I would be able to go to the sky." Zhou Ying laughed.

"Stop! The defense of this case is entrusted to you. I can tell you that if you mess up the defense of this case, I will go to the next door to find the boss and deduct your salary." Fang Yi pretended to be serious.

"Okay! My little mood that just got up was immediately suppressed by you. Well, listen to people's persuasion to eat enough, and for my poor trainee lawyer salary, I will definitely live up to your expectations." After finishing speaking, Zhou Ying left the office holding the file.

Fang Yi looked at her leaving back: It's nice to be young!
Early the next morning, Wu Caiying came to the law firm. This time it was Fang Yi who asked Zhou Ying to call her, mainly to discuss the defense plan.

"Lawyer Fang, what I am most concerned about is the crime of intentional injury charged by the procuratorate or the crime of negligent death you mentioned, which of these two charges will be punished more severely.

As for the charges, I don't care, and the deprivation of rights has little to do with us ordinary people. "Wu Caiying looked at Fang Yi eagerly.

"Let me introduce the legal regulations, and you may understand.

Article 230 of the "Criminal Law" stipulates that those who negligently cause death shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are relatively minor, they shall be sentenced to fixed-term imprisonment of not more than three years.

Article 230 stipulates that whoever intentionally injures another person's body and causes death shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death.

The maximum sentence for wrongful death is seven years.For the crime of intentional injury (causing death), generally speaking, the starting sentence is ten years, and the maximum sentence is the death penalty.In comparison, the court will give a lighter sentence for the crime of negligent death. "Fang Yi explained.

"Oh, I see. In other words, if the sentence is based on the crime of negligent death, my husband will be sentenced to seven years at most..." Wu Caiying thought for a moment and asked, "Lawyer Fang, how sure are you?"

"According to the current case, I think the possibility is very high. It depends on how the judge decides. I can only say my best. I dare not give you any guarantee." Fang Yi said.

"Well, I don't understand the law. You are a lawyer. I'll listen to you." Wu Caiying nodded and said suddenly: "By the way, Lawyer Fang, last time you asked me to ask Yan Jianshun's family to write a letter of understanding. No writing. Will this affect my husband's case? Do you have any other options?"

"Well, it will definitely have a certain impact on the sentencing, but if the other party doesn't give a letter of understanding, we can only do this first." Fang Yi looked helpless. If the victim doesn't give a letter of understanding, what can the lawyer do.

(End of this chapter)