Problem description:
Case:
1At noon on April 7, 1997, the defendant and his friends Li and Yang were drinking, and the three of them went to Xiamen Haibin Park cold drink shop to make tea. Li Xian pledged 50 yuan's advance payment at the counter, and then the defendant paid at the counter to buy three bottles of coke. After Li knew it, he scolded the defendant for not paying any more. After hearing this, the defendant cursed that the coke money should be paid by himself and pushed Li with his left hand, causing Li to fall to the ground on his back. The defendant said to the victim who fell to the ground under Yang's dissuasion: "Get up, stop pretending and go back." He left the seaside park with Yang. Later, Li died on his way to the hospital. After forensic identification, the victim Li had a cerebral vascular malformation, which was caused by cerebral vascular rupture and bleeding after drinking and beating, resulting in brain hernia death.
As a defense lawyer, I have two questions to ask: First, it is better to acquit the defendant, but I don't know how to defend him. Two: If guilty, how can the defendant mitigate the punishment?
Another hope: when answering, you can provide me with relevant legal basis (beneficial to the defendant) and teach me some debate strategies!
Please give me more advice.
Analysis:
I think the first thing to determine is the debate strategy, that is, to determine from what angle to debate. Is it a plea of innocence or a plea of guilt?
I suggest you plead not guilty. This question should start with what is a crime. According to article 13 of China's Criminal Law and General Theory of Criminal Law, crime is an act with social harm, criminal illegality and punishability. If it can be explained theoretically that the act is not a crime, then the effect of innocence can be achieved.
First of all, social harmfulness is the unity of subjective and objective, and there is only objective behavior or damage result, while the actor is subjectively innocent and has no social harmfulness in the sense of criminal law. The parties to this case have no intention to commit a crime, that is, there is no subjective fault, which conforms to the above provisions.
Secondly, it is criminal illegality, that is, only those who have reached the age of criminal responsibility and have the ability of criminal responsibility can commit acts against legitimate rights and interests under the control of criminal psychology and have criminal illegality. The behavior of the parties in this case belongs to the fighting behavior between normal friends and does not meet this condition.
Finally, punishable means that criminal acts should be punished. Any illegal act must bear corresponding legal consequences, but only when the act should be punished can it be established as a crime. Whether the parties in this case should be punished by punishment, I will discuss them one by one below.
(1) Is there a crime of negligent death?
The crime of negligent death refers to the act of negligent death. Regarding the determination of this crime, we should correctly distinguish the boundaries between the crime of negligent death, the crime of accident and the crime of indirect intentional homicide.
What is an accident? According to article 16 of the criminal law, "although an act objectively causes damage, it does not constitute a crime because it is not intentional or negligent, but because of irresistible or unforeseeable reasons."
Indirect intentional homicide is the result that the actor subjectively doesn't want others to die, but "knows" that his behavior may lead to others' death and adopts a laissez-faire attitude towards others' death, which is precisely because of this laissez-faire.
It can be intuitively seen from the above provisions that the defendant and the victim are friends. Because of the contradiction in trivial matters, the defendant's act of pushing down the plaintiff should be an accident, and the death of the victim was caused by reasons that the plaintiff could not foresee at all. Therefore, the defendant's behavior does not constitute a crime.
(2) The plaintiff may also sue for intentional injury.
Intentional injury refers to the act of illegally damaging the health of others. The main explanation here is that intentional injury and death lies in subjective intentional behavior, that is, the defendant has subjective intention to harm the victim's health. In the whole case, the defendant and his friend (victim) had a fight because of a trivial matter, and there was obviously no subjective intention, so the crime of intentional injury was not established.
To sum up the above points, it is impossible to find the defendant guilty no matter from the constitution of the crime or the substantive charges. Therefore. . . Add some yourself.
Having said that, I think the focus of the debate should focus on two aspects. First, it should be recognized that the defendant's behavior was not subjective and intentional, neither intentional injury nor negligent death. As long as you can explain this through your personal explanation, you are half successful.
Two, the defendant is not out of intention or negligence, but because of irresistible or "unforeseeable reasons" does not constitute a crime. This is the case when the victim died of a personal illness.
Regarding the specific laws and regulations, I suggest you read them several times, which will be helpful then. Hehe, it reminds me of the mock trial I participated in before.
I almost forgot, I wish you success!