Master the difference between indirect intention and overconfident negligence, and the difference between negligence and accident.
1. Subjective elements of crime
Subjective elements refer to the psychological state of the perpetrator when he commits a criminal act.
Specific elements: criminal intent, criminal negligence, criminal purpose and criminal motive.
Because criminal motive affects sentencing, the problem of motive is not the focus of grasping. This paper focuses on the intention of crime, the negligence of crime and the specific purpose of some intentional crimes.
2. Criminal intent
Types of intention: direct intention and indirect intention.
Article 14 Whoever knows that his actions will have consequences that will harm society and hopes or allows such consequences to happen, which constitutes a crime, is a deliberate crime.
Direct intention is knowing that one's actions will produce harmful results to society.
Whoever intentionally commits a crime shall bear criminal responsibility.
Distinguish from two factors: cognition and will. The biggest difference between indirect intention and indirect intention is that direct intention is hope and indirect intention is laissez-faire.
In cognitive factors, there are also differences between direct intention and indirect intention. Both direct intention and indirect intention are knowing that their actions will lead to harmful results. The direct intentional actor's understanding of the occurrence of harmful results can include the possibility and inevitability of harmful results. If the actor is only aware of the possibility of causing harm, it is indirect intention; If the actor realizes that his behavior will inevitably lead to the result of endangering society, it is direct intention.
For example, Huang intends to kill Zhang. He learned that Zhang was on duty in the unit duty room that night, and he set fire to the duty room. As a result, Li, who was on duty instead of Zhang, was burned to death. Which of the following judgments does not conform to Huang's psychological attitude towards Li's death? (Volume II, Question 50, 2002) (BCD)
A. Indirect intention
B. the mistake of overconfidence
C. negligence
D. accidents.
Analysis:
Because Huang's original intention was to kill Zhang, Zhang's death should be actively investigated, not Li's. However, because Huang did not take active measures to rule out the possibility of someone's death, Zhang's attitude towards Li's death was indirect and intentional. There is also a glaring error in this topic. In this case, Huang attempted to kill intentionally, and Li intentionally (indirectly). If Zhang didn't intentionally kill Li indirectly, how should he identify the fault? The establishment of accomplished crime will not be affected by the death result of attacking mistakes. There is the problem of attempted crime in direct crime, but there is no form of attempted crime in indirect intention.
3. Concrete intention: Intentional crime, knowing it. Pay attention to the special provisions of the specific provisions of criminal law.
Intentional crimes: such as the crime of copyright infringement and the crime of selling infringing copies. The criminal law clearly stipulates that it must be for profit. The crime of abducting and selling women and children must be aimed at selling. (There are special provisions for the purpose. )
Understand: Have a full understanding of a specific object. For example, the crime of stolen goods (hiding, selling, accepting and so on knowing that it is stolen goods obtained from crime). Constitute the crime of harboring or sheltering); Some know their own situation, such as the crime of spreading sexually transmitted diseases.
4. Several cases of indirect intention:
First, the actor pursues the purpose of illegal crime and lets another harmful result happen;
Second, the actor pursues the purpose of non-illegal crime and lets another harmful result happen.
Pay attention to cases of shooting people while hunting, usually not indirectly. Including several situations:
In the first case, when hunting, the actor not only saw the prey, but also saw someone beside him. The normal mentality of hunters is that they won't hit people. Because man is far away from animals, his marksmanship is more accurate. This is a typical overconfidence mistake.
In the second case, just staring at the prey and not finding anyone at all, and hitting someone as a result is a matter of ignorance, without indirect intention, and it belongs to negligence or accident.
Case: The driver (a) parked his car on the side of the road to unload the goods, and a car came from the opposite side, trying to reverse the car in order to pass smoothly. They had an argument about language. A doesn't want to reverse the car, the other party B wants to force through, and A prevents B from passing. However, B still forced through and squeezed A between the two cars, resulting in A's serious injury and death. B's behavior pursues non-criminal purposes, but allows the other party to die, which conforms to the characteristics of indirect intention and constitutes the crime of intentional homicide.
The third case is a case in which the perpetrator kills or injures people recklessly. In such cases, it is generally believed that the actor's mentality is laissez-faire and indirect intention.
5. Criminal negligence
According to Article 15 of the Criminal Law, negligence can be divided into overconfident negligence (knowing) and negligent negligence (not knowing).
The main differences between overconfident negligence and negligence: in terms of cognitive factors, overconfident negligence (cognitive negligence) actors foresee that the behavior will produce harmful results; Negligence is the consequence that the actor does not realize and foresee that his behavior will harm the society.
For example, a newborn baby cried when a nurse in obstetrics and gynecology in a hospital was on the night shift. In order to stop crying, A turns the supine baby into a prone position and covers the baby's head with a quilt. Half an hour later, when A checked again, he found that the baby was not breathing and died after being rescued. Appraised by the Medical Accident Appraisal Committee, the baby was prone, so that his mouth and nose were oppressed and he died of suffocation. What's A's subjective guilt about the death result of the baby? (1999 Volume II Question 22) (c)
A. Indirect intention
B. Direct intention
C. negligence
D. the mistake of overconfidence.
Analysis:
This question can rule out intention, so is it negligence or overconfidence? There are different views on this issue. Some people think it is the fault of overconfidence. Nurses think that there will be no infant death if they are examined in time, but it is a mistake to be too confident because they are too confident in their own memory and fail to check in time, which leads to the infant death. Another view is that the nurse just wants the baby not to cry, but she doesn't realize that letting the baby lie down will lead to his death, which is negligence. In some accidents, including medical accidents or other accidents, most of them are negligence.
The above is only the theoretical classification of intentional crime and negligent crime, but it has no effect on the convicted charges. The significance of distinguishing between direct intention and indirect intention lies in: from the perspective of sentencing, the subjective malignancy of direct intention is deeper; Indirect intention is less subjective and malignant, so it can be considered as appropriate when sentencing. The purpose of distinguishing between negligence and overconfident negligence is: it is easier to distinguish between overconfident negligence and indirect intention, and to distinguish between negligent negligence and accident.
6. Innocent incidents: accidents and force majeure
Due to unforeseeable reasons, the actor has neither intention nor fault subjectively, which belongs to an accident. If the harmful result occurs due to irresistible reasons, and the actor has no intention or negligence subjectively, it is called force majeure, and both of them are collectively called "no-fault events".
Second, the difference between indirect intention and overconfidence fault
The key to the difference between indirect intention and overconfidence fault lies in the actor's different attitude towards the harmful result. Indirect intention does not exclude the occurrence of harmful results; Overconfident negligent actors hold a negative or exclusive attitude towards the occurrence of harmful results. Another difference is that in terms of cognitive factors, indirect intention is "knowing" and overconfidence is "foreseeing", which shows that the actor has different degrees of understanding of the possibility of harmful consequences. Indirect intention has a slightly higher understanding of the possibility of the result.
In the concrete judgment, if it is proved that the actor has taken active measures to avoid the occurrence of the result, it should usually belong to the fault of overconfidence. Because judging the actor's mentality should be based on the facts of the case, the overconfident negligent actor wants to rule out and avoid the occurrence of the result. If the actor takes measures to avoid the occurrence of the result, it is an overconfident fault rather than an indirect intention. The indirect intentional actor takes a laissez-faire attitude towards whether the result occurs, so there will be no positive measures to prevent the result from happening.
For example, it is usually negligence to set up a power grid privately for theft prevention, but it is indirect intention to take active measures to prevent the result from happening.
Case: Two people, A and B, live in mountainous areas, and the local wild boar is seriously harmful to crops. I heard that the "electric cat" used in the neighboring village was very effective, so I went to observe and learn from the scriptures and bought an "electric cat". Party A and Party B installed an "electric cat" on the mountain where wild boar may haunt, 40 cm away from the ground, and pulled bare wires. Warning signs shall be set up at intersections where bare wires pass. The power-on time is: power-on at 7: 00 pm and power-off at 6: 00 am. Villager c illegally cut down trees and died of electric shock at 5: 30 in the morning.
Analysis:
The direct intention, negligence and accident of the actor can be ruled out. If the actor does not set warning signs to prevent the result from happening, it is indirect intention. In this case, the dealer took active actions to prevent the result of electric shock, so it should be an overconfident mistake. In terms of conviction and sentencing, since Party A and Party B set up electric wires in places where unspecified majority people pass by, even if personal injuries or deaths are caused, they should be punished as crimes of endangering public safety, which constitutes crimes of endangering public safety by negligent and dangerous methods. When the actor does not take active measures to avoid the result, it is necessary to analyze whether the actor has the basis of "self-confidence" from two aspects: objective environment and personal ability. Those who take reckless and unconfident risks should usually be indirect and intentional.
In order to show his heroic behavior, Wang lit a pile of papermaking materials in a paper mill before going to put out the fire. However, the spread of the fire could not be controlled. Although Wang struggled to put out the fire, he still caused losses of more than 200,000 yuan and was burned himself. Wang's behavior is: (1)
A. arson;
B. fire crime;
C. crimes against public security;
D. crime of undermining production and operation.
Analysis:
The perpetrator set fire to the haystack in the paper mill. The perpetrator carried out a highly dangerous behavior and could not control it after ignition. The actor has no foundation of self-confidence, so it should be indirect intention. In the case of escaping after the accident, the perpetrator injured another person in the process of fleeing from the crime scene. If the perpetrator has certain avoidance measures, it may still be a negligent crime; If evasive measures are not taken, it is usually indirect and intentional.
For example, there are many vendors on both sides of a road, and a man drove here and ran away after hitting someone. At this time, two young men were trying to stop the car. When a man saw someone coming to stop the car on one side, he dodged in the other direction, and as a result, the young man who came to intercept it on the other side was injured. In this case, A still took some measures to avoid, or overconfidence.
Analysis of several common cases;
1. A case of driving into a person during the escape due to traffic violations and other illegal and criminal acts.
Usually it is indirect intention, and if there are positive measures to avoid it, it does not rule out the mistake of overconfidence.
2. The case of setting up a power grid privately for anti-theft.
Such cases should be analyzed on a case-by-case basis. If the actor has a clear notice to set up the power grid and take active measures, it is a fault of overconfidence; If you don't take active measures to avoid it, it is indirect intention.
3. Cases of stealing manhole covers
Because some manhole covers are located in public places or expressway, if the manhole covers are stolen, it may cause injuries to vehicles or people, which is a crime of endangering public safety. In addition, if the perpetrator steals a large number of manhole covers and endangers public safety, then one act commits two crimes-theft combined with the crime of endangering public safety in a dangerous way, which is a typical imaginative joinder. Generally speaking, people who steal manhole covers will not take evasive measures, which should constitute indirect intention. Even if there are no actual consequences, we should be convicted of endangering public safety in a dangerous way.
4. Shooting or practicing shooting accidentally hitting others.
For example, two tourists practiced shooting while traveling in a tourist area and hit a pine cone on a tree with their own guns. Results/kloc-a tourist more than 0/00 meters away was hit and died after being rescued. In this case, we should make an overconfident mistake. In addition, because the actor's behavior is carried out in the tourist area, it is aimed at the unspecified majority, so the crime of endangering public safety should be determined by dangerous methods.
Another example: a college student borrowed a gun from his cousin and took it to the dormitory to play with branches. Later, he saw several students walking under the building. As a result, he fired a shot between two students. According to the actor's own mentality, he wants to play the dirt in the middle to scare the students and make fun of them. Unexpectedly, I bumped into a classmate behind me and died after being rescued. The actor is overconfident in his marksmanship and overestimates the favorable conditions at that time, which leads to the occurrence of the result, so it belongs to the fault of overconfidence and constitutes the crime of negligent death.
5. Cases of casualties caused by quarrels or jokes.
This kind of case has both intention and negligence, and the specific case is analyzed in detail. Generally speaking, in the case of quarrel, the possibility of indirect intention is relatively large; In the case of casualties caused by jokes, it is often easier to be overconfident.
6. Reckless criminal cases
7. Example of judicial examination
Zhang, a 24-year-old boy, likes Xiao Tao, a 4-year-old boy next door. One day, Zhang took Xiao Tao to play on a bridge. Zhang took Xiao Tao's hand and hung it on the bridge railing. Xiao Tao struggled and shouted "Fear". Zhang's hand slipped and Xiao Tao fell into the river. Zhang hurried to save him. Xiao Tao drowned. From the perspective of criminal law theory, what is Zhang's psychological attitude towards the subjective elements of Xiao Tao's death? (3)
A. indirect intention;
B. negligence;
C. the mistake of overconfidence
D. accidents.
The actor is engaged in a very dangerous activity, but he is joking. After the victim fell into the water, the perpetrator took active measures to avoid it. Although the death of the victim was not avoided, it was still at fault.
Third, the difference between negligence and accident.
The similarity between the two is that the actors of these two mentalities did not foresee the occurrence of harmful results (ignorance).
The fundamental difference between them: whether the actor should foresee and can foresee. If the actor should have foreseen, could have foreseen and did not foresee, it is negligence; If it is an accident that the actor can't foresee at all. The negligent actor usually violates the general duty of care. This involves whether the actor has the duty and ability to pay attention.
If the actor violates laws, regulations and general rules and regulations, it should usually be negligence. Major accidents, medical malpractice cases and dereliction of duty cases usually belong to this situation.
Violation of general social norms and general social care obligations can usually be interpreted as negligence.
To judge whether it should be foreseen and can be foreseen, we should adopt the standard of ordinary people or the standard of compromise.
Specific case analysis:
1. The doctor in the pharmacy thought that the medicine with the missing label was mirabilite, so he labeled it "mirabilite" and used it in the Chinese pharmacy. Someone gave the patient "mirabilite", and later poisoning occurred, causing two deaths. After examination, they all died of arsenic poisoning. The mentality of the doer in this case belongs to negligence.
Mistake people for animals when hunting
Case: In the 1980s, the militia company commander came back with a militia training. The militia company commander went to a relative's house that afternoon. This relative is an old hunter. The old hunter asked them to stay at his house that night and let them go hunting wild boar together that night, because wild boar had seriously damaged crops. In the process of eating, the old hunter arranged for them to go to the designated place together, not to walk around at will, and to listen to the password and the command when calling it a day. Let's be careful not to hurt our own people by mistake. After the arrangement, go to the designated place. The company commander of the defendant's people's army is in a high position in a cultivated land, below which is an open cultivated land, and not far away is the position of an old hunter. During the night observation, the militia company commander saw a black shadow moving in the crop field, and he could also hear the sound. He thought it was a wild boar, aimed at it, hit the shadow, went over and killed his relative, the old hunter.
Analysis:
It happened at night, and no one else will appear in this place. The old hunter stipulates that he can't walk around at will. It was the old hunter who broke the rules himself. From the specific facts, it is an unforeseen accident (the object has a wrong understanding).
Case: While driving on a mountain road at night, a man saw a black shadow in front of him. He thought it was an animal and tried to kill it and take it away. As a result, he increased his horsepower and ran into it, killing an old man.
Analysis:
When the driver saw a black shadow on the road, he should be able to think that it might be a person. At this time, the driver should fulfill his duty of care, so it belongs to negligence and constitutes the crime of negligent death.
3. Shooting cases
4. The case that the driver ran over someone while driving normally.
The defendant was the driver of a bus and stopped at the station after entering the city. At this time, a farmer (victim) who entered the city got off the bus because of panic, and his bag fell under the car, and the items in the bag were scattered under the car. Then he got under the car to look for the scattered items. After the passengers got off the bus, the driver saw no one from both sides of the mirror and honked his horn to signal that he wanted to drive. When the farmer got under the car, he didn't tell the driver or anyone else. After the car started, he ran over the farmer. This situation is accidental.
5. Typical examples in judicial examination
Shanminjia (good at catching snakes) caught a poisonous snake and put it in a wooden bucket at home. When Party B arrived at Party A's house, Party A asked Party B to wash his hands in the bucket. Party B was bitten by a snake in the barrel and was poisoned. After being rescued, his arm was amputated (seriously injured). A's behavior: (AB)
A. something is wrong
B. Constitute the crime of causing serious injury through negligence
C. No fault
D. this is an innocent incident.
Analysis:
As a mountaineer who catches snakes, he should know the toxicity of snakes. Due to negligence, the victim was seriously injured because he did not fulfill the obligations of ordinary people. I think it was an oversight.