On how to carry out the criminal policy of combining leniency with severity in the trial of intentional injury cases

On how to carry out the criminal policy of combining leniency with severity in the trial of intentional injury: Liu Hua's intentional injury is the most common crime in China's current criminal trial practice, and it also involves the most types of principal punishment. Its sentencing ranges from public surveillance, criminal detention to death penalty, so it is of great significance to correctly implement the criminal policy of combining leniency with severity in the trial of intentional injury crimes. Article 1 of "Several Opinions of the Supreme People's Court on Implementing the Criminal Policy of Tempering Justice with Leniency" stipulates: To implement the criminal policy of tempering justice with leniency, we should treat the crime differently according to the specific circumstances of the crime, so as to punish the crime. According to the above provisions, the author believes that in the trial of intentional injury cases, we should pay attention to the following "six views" in order to treat them differently in sentencing. Look at the consequences of the injury. Article 234 of the Criminal Law stipulates: "Whoever intentionally harms another person's body shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever commits the crime mentioned in the preceding paragraph and causes serious injuries shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 6 years; Whoever causes death or serious injury by particularly cruel means and causes serious disability shall be sentenced to fixed-term imprisonment of not less than 10, life imprisonment or death. Where there are other provisions in this Law, such provisions shall prevail. " The above-mentioned laws belong to the provision structure of implementing basic crime+aggravated crime+statutory heavier punishment. This law stipulates three levels of punishment: basic injury crime, serious injury crime and injury death crime, and the latter two levels are caused by aggravated crime. [1] In general, the actor may not have a clear understanding and pursuit of the extent to which his injury behavior will cause harm to the victim in advance. No matter what the result is, it is within the subjective intention. Therefore, in judicial practice, it is generally determined whether it is intentional minor injury or intentional serious injury according to the actual injury result. Although Article 234 of China's criminal law is basically divided into three sentencing ranges: minor injury, serious injury, death or serious disability caused by serious injury caused by particularly cruel means, in life practice, the same injury is divided into several grades, for example, the same serious injury has different severity. Cutting off the thumb is a serious injury, and cutting off the arm is also a serious injury, but the degree of injury is very different. Therefore, different harmful consequences reflect different social harmfulness, and the severity of sentencing the defendant should be determined accordingly. Other circumstances are similar, but the punishment for the defendant with less harmful consequences should be lighter than that for the defendant with more harmful consequences. The general consequences of injury can be dealt with lightly. In minor injury cases, the defendant has a good attitude of pleading guilty, expressing remorse, apologizing to the victim voluntarily, and willing to bear the medical expenses and losses. If the victim can accept and understand, criminal reconciliation can be applied, and the defendant can be given a lighter punishment or sentenced to non-imprisonment punishment. Serious consequences should be severely punished, and even the death penalty can be considered. If the injury causes damage to the victim's brain, spinal cord and peripheral nerves, it will lead to a vegetative state; Mental retardation or mental disorder, life is completely unable to take care of itself; Quadriplegia or hemiplegia; Paraplegia is accompanied by serious consequences such as incontinence. Second, look at the plot of the crime. Generally speaking, the circumstances of intentional injury should include criminal tools, means, objects and places, and different criminal circumstances reflect different social harmfulness. The circumstances of a crime are mostly discretionary sentencing circumstances, which are not clearly stipulated by law, but they are the basis for applying punishment and the basic basis for deciding whether to punish leniently or severely in specific cases. It is necessary to carefully screen the case in order to accurately judge the social harm of the crime [2]. Judging from the crime tools, the most common crime tools in injury cases are knives, some are fruit knives, some are daggers and some are machetes. Different crime tools have different social harmfulness. In an intentional injury case presided over by the author, the defendant hit the victim with a stone, which caused the victim's spleen to rupture and died of hemorrhagic shock. Compared with the defendant who killed with a knife, the collegial panel gave appropriate leniency in sentencing. Judging from the means of committing crimes, different means of injury often reflect different social harmfulness. If some stab only once, some stab several times, some hurt limbs, and some attack the chest, abdomen and first-class key parts. Another example is Tang Moumou's intentional injury case. During the scuffle with the victim, the defendant Tang Moumou took out a folding knife from his pocket and stabbed the victim's thigh, causing the victim to die of hemorrhagic shock due to stabbing the femoral artery. Although the consequences of this case are serious, the means of injury are average, and the defendant should be treated leniently. In the trial practice, the sentencing range of severe disability caused by particularly cruel means is obviously higher than that of defendants who cause serious injuries by ordinary means. The so-called "particularly cruel means" of injury often shows that the actor has the subjective intention to cause physical disability of others before he carries out the act of hurting others, and in the process of carrying out the injury, he has the act of causing physical disability of others, which has caused very serious consequences to the victim. For example, gouging eyes to make people blind, cutting off ears and nose, cutting off hands and feet, breaking hamstrings to cause paralysis, or damaging people's appearance with extremely corrosive solutions, as well as electric shocks and burning vital parts of others. The specific targets and locations of crimes also reflect different social harmfulness. For example, crimes against vulnerable groups such as women, children, the elderly and the disabled, or crimes committed in public places and downtown areas have great social harm and should be severely punished. Third, look at the cause of the crime. The causes of intentional injury cases can usually be divided into two categories according to their nature. One kind is serious violent crimes that seriously endanger social order, seriously affect people's sense of security, and target at unspecified people, such as violent terrorist crimes, underworld crimes, evil forces crimes and other serious violent crimes that intentionally hurt others; Gathering people to "smash and rob" to hurt others; Mean motives and premeditated harm to others; Gather people to fight on a large scale and hurt others. Such cases should be the focus of the people's courts. Full consideration should be given to the circumstances of statutory or discretionary heavier punishment, and the defendant should be sentenced to death according to law. The other category is cases caused by the intensification of civil conflicts such as marriage and family disputes and neighborhood disputes, mainly including injury cases caused by marriage and family disputes, neighborhood disputes, love disputes, contradictions between relatives and colleagues, forest ownership or contracting disputes, and labor disputes. When dealing with such cases, we should pay attention to the spirit of leniency, and be especially careful when imposing heavy sentences, especially when applying the death penalty. Except for defendants whose criminal circumstances are particularly bad, whose criminal consequences are particularly serious and whose personal danger is particularly great, the death penalty is generally not imposed. Fourth, look at subjective malignancy. The defendant's subjective viciousness, personal danger and special subject identity are the important basis of combining leniency with severity, which should be fully considered when applying punishment. Subjective malignancy is the defendant's psychological attitude towards the harmful consequences that criminal acts will bring to society, which reflects the possibility of the defendant's reform to some extent. Judging from the trial practice, defendants who have made long-term preparations and carefully planned crimes, and defendants who have recidivism and duty crimes are less likely to receive education and reform. Passion crime is caused by impulse, injury crime is caused by the wrong behavior of the victim, and the defendant is less subjective and vicious. The defendant with the above-mentioned subjective malignancy shall be given a heavier sentence according to law, and the defendant with less subjective malignancy shall be treated leniently. Personal danger, that is, the possibility of recidivism, should be comprehensively judged from the defendant's criminal record and peacetime performance. Defendants who are extremely dangerous should be severely punished according to law. For example, if a recidivist commits a crime again within the probation period of probation and parole, he usually bullies the city, runs amok in the village, and beats and scolds others at will, which constitutes the crime of intentional injury because of gathering people to fight and stir up trouble. For defendants with little personal danger, the spirit of leniency should be reflected according to law. For example, if the defendant has always obeyed the law and behaved well at ordinary times, then he is a first-time offender or an occasional offender. Compared with ordinary people, the crime of injury committed by minors and the elderly is different in subjective malignancy and personal danger, so we should consider lenient treatment when dealing with it. For juvenile defendants, we should adhere to the principles of "education, probation and salvation" and "education first, punishment second". Cases of minor injuries that have not caused serious consequences may be sentenced to public surveillance or probation according to law. Minors with serious circumstances should also be given a lighter or mitigated punishment. For the elderly over 70 who commit intentional injury, because they have no possibility of committing another crime, on the basis of comprehensive consideration of their criminal circumstances, subjective malignancy and personal danger, they should generally be given a lighter punishment as appropriate, and in principle, they should not be sentenced to death. For deaf-mute or blind people who commit crimes, according to the provisions of Article 19 of the Criminal Law, we should also look at their repentance from five lenient punishments. Penitence is mainly manifested in the defendant's subjective understanding of his behavior and the objective remedial measures taken after the crime. Cases of intentional injury generally include actively rescuing the victim, surrendering or making meritorious deeds, and pleading guilty. Being able to take the initiative to rescue the victim after the incident, or to rescue the victim by calling the emergency number or calling others, shows that the defendant has some remorse for the harm caused to himself, and hopes to remedy the bad consequences as much as possible through rescue treatment. Generally, such defendants should be given a lighter punishment as appropriate. Injury cases in which the victim is left to his own devices after being injured not only reflect the defendant's positive attitude towards the injury behavior and consequences, but also objectively often make the victim miss the best rescue period, resulting in serious consequences of disability or death. Such a defendant should be severely punished. Surrender and meritorious service are legal circumstances of lighter or mitigated punishment. If the defendant in a case of intentional injury has surrendered himself, he should generally be given a lighter punishment, except that the circumstances of the crime are particularly bad, the consequences of the crime are particularly serious, or he maliciously uses surrender to escape legal sanctions. If a relative brings the defendant to justice or assists in the capture of the defendant, it can also be regarded as surrender, and in principle, it should be appropriately lenient. It is generally not considered that the death penalty should be executed immediately for the defendant who intentionally surrendered himself and caused death. If the defendant exposes another person's crime and constitutes meritorious service, he shall be treated leniently. Even if people die from injuries, they may consider not sentencing them to death immediately. Because the consequences of the injury are not particularly serious and the circumstances of the crime are not very bad, the defendant who has rendered meritorious service should be given a lenient punishment. After being brought to justice, he can truthfully and stably confess the facts of the crime, plead guilty voluntarily during the trial, and show obvious repentance. As long as the circumstances of the crime are not particularly serious, he can be lenient as appropriate. The defendant absconded for fear of sin, did not truthfully explain the facts of the crime after being brought to justice, but concealed the crime and fabricated the facts, made excuses in court, refused to plead guilty, and even threatened to retaliate against the victim and society again, which should be severely punished according to law. Sixth, look at civil compensation. The crime of intentional injury infringes on the personal rights of others, which will cause certain harmful consequences, so there are clear victims. Therefore, the trial of a case is often accompanied by criminal incidental civil action. But generally speaking, the defendants in intentional injury cases rarely offer to pay civil compensation, and when paying compensation, they often expect the people's court to punish the defendants lightly. Actively carrying out civil compensation not only protects the vital interests of the victims, solves the life difficulties of the victims or their families, eliminates the opposing feelings of both sides to a certain extent, reduces the social disharmony factors, and also reflects the defendant's attitude of pleading guilty and repenting. Appropriate lenient punishment for the defendant due to positive civil compensation is essentially different from the rumor of "spending money to buy punishment" in society. In fact, it pays more attention to the protection of private rights under the premise of the conflict between public rights and private rights, which reflects the degree of protection of human rights in China. Generally speaking, if the defendant or his family actively compensates the victim for economic losses, they should be treated leniently. If the understanding of the victim or his family is obtained, the severity of the crime, the reasons for understanding and the degree of confession and repentance can be considered comprehensively, and leniency can be given. However, for those criminals whose criminal circumstances are particularly bad and the consequences are particularly serious, such as buying a murder, injuring many people, and using particularly cruel means, even if they can perform their civil responsibilities according to law, or even ask for compensation exceeding the statutory amount, they cannot be lenient. In a word, the practical characteristics of intentional injury cases determine that the trial of cases should meet the criminal policy requirements of "combining leniency with severity, combining leniency with severity, and punishing them as crimes". Therefore, we should comprehensively analyze the constitution of the crime, the causes of the crime, the harmful results caused by the crime, and whether there is a statutory plot of combining leniency with severity through the above six views. Whether there are a series of factors, such as lighter or heavier circumstances, to make a correct judgment, so as to accurately apply specific legal provisions, form a balance between leniency and severity, realize the benign interaction between leniency and severity, and give full play to the best effect of criminal punishment in crime prevention. Author: Intermediate People's Court of Zhangjiajie City, Hunan Province [①] Zhou Enhui: Reflections on the Aggravation of Intentional Injury, Hebei Law, 2000- 1, p. 53. [2] the Supreme People's Court Criminal Court No.3: Practically implement the criminal policy of combining leniency with severity, and try cases of intentional homicide, injury and organized crimes of underworld nature.