In judicial practice, intentional homicide (accomplished) and intentional injury (causing death) are two easily confused charges. Article 232 of the Criminal Law stipulates that whoever intentionally kills shall be sentenced to death, life imprisonment or fixed-term imprisonment of more than 10 years; If the circumstances are relatively minor, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Article 234 stipulates that whoever intentionally hurts and causes death shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death. Intentional homicide and intentional injury cause death. Although the penalties include death penalty, life imprisonment and fixed-term imprisonment of 10 years or more, the different order of the two punishments determines the different order of application of the death penalty. If there is no extenuating circumstance for intentional homicide, the death penalty shall be applied; if there is no aggravating circumstance for intentional injury, the fixed-term imprisonment of 10 years or more shall be applied. Whether the suspected act is intentional homicide or intentional injury leads to death is related to whether the death penalty takes precedence over the defendant and directly related to the defendant's life interests.
The difference between intentional homicide (accomplished) and intentional injury leading to the death of the victim lies in the subjective intention of the actor. If the intentional content of the perpetrator is murder, then the crime of intentional homicide is established. If the intentional content of the actor is injury, although it leads to the death of the victim, the crime of intentional injury (causing death) is only established. Intention in the crime of intentional homicide refers to knowing that one's actions will lead to the deprivation of others' lives, and hoping or letting this happen; Intentional injury causing death refers to knowing that one's actions will lead to damage to the health of others, and hoping or letting this happen. For the result of death, the subjective intention of the actor is negligence, which means that ignorance or credulity can be avoided because of negligence.
To judge the intentional content of the perpetrator, we should not only determine whether there is a death result or not, nor can we only determine it according to the confession of the perpetrator, but should determine it according to the specific circumstances of the perpetrator when he committed the criminal act. Combined with judicial practice, I think we should focus on the following aspects for comprehensive identification:
1, crime tool. Guns and knives are obviously more dangerous than ordinary sticks. As a normal person, we should realize that it is extremely dangerous to hit a person with a gun and a knife, and it is more likely to deprive the victim of his life. Therefore, the danger of the tools used by the actor can be used as a factor to determine the subjective intention of the actor.
2, playing the site. Critical parts are obviously more deadly than non-critical parts. As a normal person, we should realize that it is extremely dangerous to attack a person's vital parts with weapons, and it is more likely to deprive the victim of his life. Therefore, whether the hit part of the actor belongs to the key part can be regarded as a factor that determines the subjective and intentional content of the actor.
3. The cause of the incident. The reason often affects the motivation of the actor when he carries out the behavior. There is deep hatred or little friction between the two sides, and the latter often has no motive for killing.
4. Whether the behavior is temperate. Whether the tort committed by the actor is an infinite attack or a limited attack plays a great role in judging the subjective intention of the actor, and it is often just intentional injury.
5, whether to rely on certain conditions or take certain measures. Under certain conditions or protective measures, there is generally no intention to kill people subjectively.
6, before the relationship between the two. Close relationship or first acquaintance, the possibility of intentional homicide is generally less than the possibility of deep resentment between the two sides.
7, whether to implement active rescue behavior. After the act is carried out, the perpetrator tries his best to help the victim, which is more likely to cause intentional injury.
8. Confessions of actors. The confession made by the actor after arriving at the case plays an important role in judging the subjective intention of the actor.
The above eight aspects can help to identify the subjective and intentional content of the perpetrator in the implementation of the tort to a certain extent, but it cannot be identified by a certain point mechanically. It is necessary to comprehensively consider the specific circumstances of the case and analyze all aspects; At the same time, when defining specific behavior, we must abandon the practice of objective imputation, and must be consistent with subjective and objective to avoid qualitative errors.