Elements of conviction of intentional injury crime
1, object element
The object of infringement is the health right of others. The so-called body right refers to the personality right of natural persons, and its content is to maintain the integrity of their limbs, organs and other tissues. It should be noted that it infringes on the body rights of others, so intentionally hurting one's own body is generally not considered a crime. Self-mutilation can only constitute a crime if it violates the relevant criminal law norms in order to harm social interests. For example, a soldier who injures himself in wartime and evades performing his military service obligations shall be investigated for criminal responsibility in accordance with Article 434 of the Criminal Law.
2. Objective factors
Objectively, it is an act of illegally damaging others' bodies.
1. Do something harmful to others' health.
There are two ways to endanger the health of others: positive inaction and negative inaction. The former is like punching and kicking, cutting and shooting with a knife, beating stones with sticks, boiling water and scalding. The latter, such as the nanny who is responsible for protecting young children, is irresponsible. Seeing a child stabbing himself with a knife, he still ignores it, and as a result, the child will stab himself blind, which can constitute this crime. It can be carried out by oneself, by minors, mental patients and other people, and by domestic animals such as poisonous snakes and German shepherd dogs. It can not only damage the appearance of the human body, but also damage the internal tissues and organs and hinder its normal functional activities. In short, whether it is directly or indirectly carried out by myself, no matter what part it is aimed at and what way it is taken, as long as it can intentionally cause personal health harm to others, it can constitute the crime of intentional injury.
2. It must be illegal to harm others' health.
If a certain injury behavior is permitted by law, it cannot constitute intentional injury, such as self-defense causing unnecessary injury, and doctors amputating patients to treat diseases. Whether the injury agreed by the victim is legal or not should be analyzed in detail. If the victim's consent is to achieve the purpose of endangering society, this consent cannot rule out the illegality of the injury; If this consent is for the benefit of society, the illegality of others' injury behavior can be ruled out. Whether the injury behavior in intense antagonistic sports is legal or not should also be analyzed in detail. If this kind of injury itself is allowed by the rules of sports, this kind of injury can generally not be considered as an illegal act in criminal law. For example, in a football match, the action that causes injury according to the "reasonable collision rule" is generally not recognized as the crime of injury; If the action in the game is rude and obviously violates the requirements of the rules and intentionally hurts others' bodies, it should also be punished as intentional injury.
3. The act of hurting others' bodies must cause some damage to others' bodies in order to constitute the crime of intentional injury.
If it's just general punching, kicking, pulling and tearing, it won't cause harm, so it can't be punished as intentional injury. The results of injury can be varied, some of which destroy the integrity of other people's organizations, such as biting off the nose and cutting off hands and feet; Some damage the normal functions of other organs, such as hearing, vision, taste loss, mental disorders and so on. But in terms of the severity of the result, there are three forms, namely, minor injury, serious injury or death. If the injury does not cause more than minor injuries, it does not reach the injury level, or even if it does, it is a minor injury and cannot be punished as intentional injury.
The so-called minor injury refers to a certain degree of damage or partial dysfunction of tissues and organ structures caused by physical, chemical, biological and other external factors, which does not constitute a serious injury but does not belong to a minor injury. Identification should be based on the primary damage directly caused by external factors and its consequences, including the injury at the time of injury, complications and sequelae caused by injury, etc.
The so-called serious injury refers to physical disability or disfigurement, loss of hearing, vision or other organ functions, and other injuries that have great harm to personal health.
3. Main elements
The subject of the crime of intentional injury is the general subject. Any natural person who reaches the age of criminal responsibility and has the ability of criminal responsibility can constitute the crime of intentional injury. Among them, a natural person who has reached the age of 14 but has not reached the age of 16, who intentionally hurts and causes serious injury or death, shall bear criminal responsibility. Those who cause minor injuries must be 16 years old to constitute the crime of intentional injury.
4. Subjective factors
The crime of intentional injury is subjectively intentional. That is, the actor knows that his behavior will cause harm to the health of others, and hopes or lets this happen. In general, the actor may not have a clear understanding and pursuit of the degree of harm that his injury behavior can cause to the victim in advance. No matter how much the result is, it is within subjective intention. Therefore, it is generally possible to determine whether it is intentional minor injury or intentional serious injury according to the actual injury results. The crime of intentional minor injury still has the problem of attempted crime. However, if the intention of serious injury is obvious, such as an attempt to severely disfigure, and the behavior that has been carried out fails due to reasons other than will, even if no actual injury is caused, it should be convicted and sentenced for the crime of intentional serious injury (attempted).
In the case of intentional injury causing death, the actor subjectively has a mixed criminal form, that is, there are both intentional injury and negligence causing death, which is the main symbol to distinguish intentional injury from intentional homicide and intentional injury from negligence causing death. form
In short, if the injured object and the deceased are not the same person, whether the injury is fatal should be determined according to whether the actor has the possibility to foresee the death of the deceased and the principle of handling the misunderstanding of relevant facts. Intentional minor injuries, there is no problem of attempted crime, that is, the perpetrator subjectively only wants to cause minor injuries, but actually did not cause minor injuries, so it is not suitable for criminal punishment. The intention of serious injury is obvious, and the behavior of serious injury has begun. Failure due to reasons other than will shall be punished as intentional serious injury (attempted). Intentional injury to death belongs to aggravated consequence crime. Subjectively, the actor is intentional about the injury and negligent in causing death.
(1) If the perpetrator A has done harm to the victim B, although he has no mistake in understanding the target, he still does harm while knowing that his behavior will also cause harm to C, thus causing C's death, it shall be deemed as intentional injury.
(2) If the actor A intends to hurt the victim B, but actually hurts C due to misunderstanding or attack on the object, which leads to the death of C, it should be considered as intentional injury. Because in this case, according to the theory of legal conformity in dealing with factual errors, the criminal law stipulates that the crime of intentional injury is not only to protect the health of a specific person, but to protect the health of all people; As long as the perpetrator intentionally hurts others and carries out the act of hurting others, and thus hurts others, the crime of intentional injury is established, and it is not necessary to require that "others" are exactly the same. So is intentional injury to death. Both B and C's bodies are protected by criminal law, and the nature of A's injury behavior is not affected by the wrong understanding or attack of the object, so it should be punished as intentional injury to death.
(3) If the actor Zhang San did cause harm to Li Si, he didn't actually make a mistake, and he didn't know that his behavior would also cause harm to Wang Wu. If Wang Wu died for some reason, then Zhang San's behavior is hard to identify as intentional injury.
(1) Intentionally causing minor injuries. The crime of intentional injury refers to the act of intentionally and illegally damaging the health of others, that is, if the actor who meets the requirements of the subject of the crime carries out the injury under the control of the crime of intentional injury, it can be considered as intentional injury. In addition, whether the actor subjectively only wants to cause minor injuries, but actually does not cause minor injuries, constitutes an attempt. According to the principle of modesty of criminal law, acts that should not be investigated for criminal responsibility should be excluded from the constitution of a crime, that is to say, there is no case of attempted intentional injury causing minor injuries in practice. At the same time, the general principles of China's criminal law also stipulate that if the circumstances are obvious and the harm is slight, it is not considered a crime. In this case, it does not constitute attempted intentional injury, but it is not treated as a crime.
(2) If intentional injury causes serious injury, the perpetrator obviously has the intention of serious injury, and objectively also caused serious injury. Generally speaking, if the perpetrator has a clear and specific intention of serious injury subjectively, and has objectively started to carry out intentional serious injury, but the result of serious injury cannot be achieved due to reasons other than the will of the criminals, no matter whether it has caused minor injuries or no injuries, as long as it is not all recognized as "obviously minor injuries" and should be convicted and punished, it should be regarded as attempted intentional serious injury, and Article 234, paragraph 2, and Article 23 of the Criminal Law should be cited for punishment.
(3) If intentional injury causes serious disability, according to the provisions of the Minutes of the Symposium on the Criminal Trial of National Courts for Maintaining Rural Stability (hereinafter referred to as the Minutes of the Meeting) of the Supreme Court, the standard of serious disability is set at Grade 6 or above.
(4) intentional injury causes death. Intentional injury causing death is a typical aggravated consequence crime. As the basis for the application of aggravated statutory punishment, aggravated result refers to the actual harmful result, excluding the possible result. In other words, if there is no aggravating result, there is no basic premise of aggravating statutory punishment. Therefore, if intentional injury does not cause death, it should not be considered as an attempted crime of intentional injury causing death.
Second, how to distinguish between intentional injury and non-crime.
First of all, while correctly identifying the constitution of intentional injury crime, we should also pay attention to the distinction between intentional injury crime and general injury crime. There is no difference in appearance and consequences between general beatings and injuries, but it cannot be simply considered that those who cause harm or even death to others' health are intentional injuries, while those who do not cause harm are general beatings; Instead, it is necessary to combine the specific circumstances of the whole case, examine the subjective and objective factors, and judge whether the perpetrator intentionally hurts others subjectively. We need to carefully examine whether the perpetrator intentionally hurts others or accidentally causes casualties to others for the purpose of general attack. In judicial practice, we should pay attention to the fact that we can't simply identify any behavior that causes consequences in the case of simple beating as intentional injury; Secondly, we should also pay attention to the boundary between minor injuries and minor injuries. Injuries in the crime of intentional injury do not include minor injuries. Under normal circumstances, whether the injury caused to the victim is minor or minor, it is necessary to identify the victim's injury and decide whether the perpetrator should be investigated for criminal responsibility and whether it should be considered as intentional injury. Therefore, it is of great significance to distinguish minor injuries from minor injuries in practice.
Third, how to distinguish between serious injuries and minor injuries.
Regarding the question of what is serious injury, Article 95 of China's Criminal Law has made a simple provision, and the Ministry of Public Security and the Ministry of Justice of the Ministry of National Security have made a more detailed explanation on the standard of serious injury in the "Appraisal Standard of Human Injury Degree" promulgated by the Supreme People's Procuratorate and the Supreme People's Court on August 30, 20 13. Whether the injury result is serious or not depends on the injury at the time of injury or the result after treatment. The prevailing view is that the identification of serious injuries should be combined with the injury at the time of injury and the results after treatment to consider comprehensive evaluation. However, even with this principle, in the practice of identification, sometimes different conclusions are drawn for the same injury case because of different identification basis. Under the guidance of the above principles, the methods of "comprehensive evaluation" are different. The author believes that the identification of serious injuries should be based on the above comprehensive evaluation method, and at the same time, according to the contents of various specific standards of serious injuries in the new "Identification Standard of Human Injury Degree", appropriate medical diagnosis should be selected as the identification basis. In the defense of specific cases, we must not be superstitious about the expert opinions of relevant departments, but should conduct targeted review and judgment.
It should be noted that forensic doctors should pay attention to eliminating the cognitive differences caused by different occupations when identifying injuries and distinguishing serious injuries from minor injuries; The occupation an individual is engaged in will often have a certain impact on his way of thinking. In order to accurately identify the injury, first of all, when judging the original injury of the victim, we must exclude the influence of the existing medical technology level and consider the degree of damage to human health. These circumstances have an impact on the court's judgment of serious injury. Secondly, when determining the degree of original injury, we should also avoid being influenced by feelings. Since the criminal law of our country stipulates that the degree of injury is divided into severity, we should try our best to make it conform to the scientific meaning when judging the severity of injury. Only by scientifically distinguishing minor injuries from serious injuries can the defense of the case be based on facts and the legitimate rights and interests of the criminal suspect be protected to the maximum extent; The minutes of the meeting stated that "whoever causes serious injuries or serious disabilities by particularly cruel means shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death."
Fourthly, how do defense lawyers correctly defend sentencing and correctly determine the starting point of sentencing according to the basic elements of intentional injury. The so-called basic criminal facts refer to the minimum elements of a crime that meet the specific characteristics of a crime and achieve sentencing within the corresponding legal punishment range. As far as the specific crime of intentional injury itself is concerned, intentional injury to another person's body refers to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. In other words, if intentional injury causes minor injuries and the circumstances of the crime are general, the starting point of sentencing can be determined within the range of six months to one year and six months; If intentional injury causes serious injury, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than three years but not more than four years; If intentional injury causes serious injuries by particularly cruel means, resulting in severe disability of grade 6, the starting point of sentencing can be determined within the range of fixed-term imprisonment of 10 years or more 12 years or less. Except for those who should be sentenced to life imprisonment or more according to law. If intentional injury causes death, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than 10 years but not more than 15 years. Except for those who should be sentenced to life imprisonment or more according to law.
Five, defense lawyers how to determine the benchmark punishment of intentional injury according to other facts that affect the constitution of the crime, and then determine the declared punishment. Benchmark punishment includes the starting point of sentencing and the amount of punishment that should be aggravated.
Sentencing guidance
1. If the crime of intentional injury is constituted, the starting point of sentencing can be determined within the corresponding range according to the following different situations: (1) If intentional injury causes minor injuries, the starting point of sentencing can be determined within the range of six months of fixed-term imprisonment to six months of one year. (2) If intentional injury causes serious injury, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than three years but not more than four years. (3) If a person is intentionally injured by particularly cruel means, causing serious injuries, resulting in severe disability of Grade VI, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than 10 years but not more than 12 years. Except for those who should be sentenced to life imprisonment or more according to law. (4) If intentional injury causes death, the starting point of sentencing can be determined within the range of fixed-term imprisonment of not less than 10 years but not more than 15 years. Except for those who should be sentenced to life imprisonment or more according to law.
2. On the basis of the starting point of sentencing, the amount of punishment can be increased and the benchmark punishment can be determined according to the consequences of casualties, the level of disability, the cruelty of means and other criminal facts that affect the composition of the crime.
3. Hiring others to commit injuries can increase the benchmark punishment by less than 20%.
4. Under any of the following circumstances, the benchmark punishment can be reduced by less than 20%:
(1) is caused by the intensification of civil conflicts such as marriage, family and neighborhood disputes;
(2) Crime is a criminal act caused by the fault of the victim or the intensification of contradictions;
(3) actively rescuing the victim after committing a crime.
enforcement regulations
1. If the crime of intentional injury is constituted, the starting point of sentencing can be determined within the corresponding range according to the following different situations:
(1) If intentional injury causes minor injuries, the starting point of sentencing can be determined within the range of fixed-term imprisonment of more than six months and less than one year. (2) If one person is seriously injured due to intentional injury, the starting point of sentencing can be determined within the range of three years and six months to four years' imprisonment. (3) If intentional injury is caused by particularly cruel means, resulting in severe disability of Grade VI, the starting point of sentencing can be determined within the range of 1 1 year or more and 12 years or less. (4) If intentional injury causes death, the starting point of sentencing can be determined within the range of fixed-term imprisonment of 14 years or more 15 years or less. Except for those who should be sentenced to life imprisonment or more according to law.
2. On the basis of the starting point of sentencing, the amount of punishment can be increased according to other criminal facts such as the consequences of casualties, the level of disability, and the cruelty of means, and the benchmark punishment can be determined: (1) For each additional person with minor injuries, the sentence can be increased by one month to two months to determine the benchmark punishment; (2) For each minor injury, the sentence is increased by three to six months to determine the benchmark punishment; (3) For each additional seriously injured person, one to two years' imprisonment should be added to determine the benchmark punishment; (4) For every level of general disability, two to three months' imprisonment should be added to determine the benchmark punishment; For each level of severe disability, the sentence will be increased by six months to nine months, and the benchmark punishment will be determined; For each level of particularly severe disability, imprisonment of two to two years and six months should be increased to determine the benchmark punishment; (five) the use of knives and other sharp instruments to hurt people, each time to increase the prison term of three months to four months to determine the benchmark punishment; Whoever uses guns to harm others shall be sentenced to nine months to one year each time, and the benchmark punishment shall be determined.
3. The crime situation
(1) If the employer intentionally injures, the employer may be increased below 20% of the benchmark punishment.
(2) Those who intentionally harm others for other illegal and criminal purposes may be increased by less than 20% on the basis of the benchmark punishment.
(3) The crime of intentional injury caused by the intensification of civil conflicts such as marriage, family and neighborhood disputes can be mitigated at less than 20% of the benchmark punishment.
4. Sentencing circumstances before and after the crime
If the victim is actively rescued after committing a crime, the benchmark punishment can be reduced by less than 20%.
5. Applicable conditions of probation
(1) If the crime of intentional injury is sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and the defendant actively compensates the victim and his close relatives for economic losses, probation may be applied.
Sentencing standard of intentional injury crime
Criteria for filing the crime of intentional injury
Judicial interpretation of intentional injury crime