Han Yi's negligent death and acquittal
2007-6- 1
Du Xiaohong and Zhang Chan
[key points]
According to the general criminal law theory, it is necessary to analyze whether an act constitutes a crime from four aspects. This case mainly studies whether there is a causal relationship between the intentional injury behavior of the defendant and the death result of the victim, so as to determine whether the defendant's behavior constitutes a crime.
[case index]
Xiling District People's Court (2005)No. 169 criminal judgment; June 2005 65438+1October 65438+May.
Yichang Intermediate People's Court (2005) No.252 criminal judgment; 65438+February 6, 2005.
[case]
Defendant: Han Yi, male, 36 years old, Han nationality, unemployed. On June 7, 2005, 17 was placed under residential surveillance on suspicion of negligent death. On August 4 of the same year, the Xiling District People's Court decided to get bail pending trial.
The People's Procuratorate of Xiling District brought a public prosecution to the People's Court of Xiling District for the crime of negligent death of the defendant Han Yi. In the course of litigation, the victim's family filed a criminal incidental civil action with the court.
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The facts of a legal case
Private prosecutor (plaintiff in criminal incidental civil action): Zhang Moumou.
Defendant: Liu Moumou
Nankai District People's Court found through public hearing that at 0: 00 on February 29, 2008, 165438+ after the defendant Liu had a dispute with the 69-year-old because of trivial matters, the defendant Liu pushed Zhang's shoulder and kicked his leg, and then Zhang called the police. The police took the two sides to the police station to resolve the dispute. Zhang felt chest tightness and discomfort and went to the hospital. At 3 o'clock in the afternoon, Zhang Jing died after being rescued. Forensic identification: Zhang died of acute heart failure caused by coronary atherosclerotic heart disease.
Zhang Moumou, the private prosecutor, said that Zhang's sudden death from heart disease was entirely caused by the beating of the defendant Liu. Although Liu's behavior cannot directly lead to the death of the victim, it is a direct cause. Therefore, knowing that Zhang was an elderly person and should have foreseen that his behavior might cause serious injury or death to the victim, Liu still beat the victim, resulting in the death of the victim Zhang. The defendant's behavior was negligent in the occurrence of the death result, and his behavior was consistent.
Defender of the defendant Liu pointed out that the fact that the private prosecutor accused the defendant of punching and kicking the victim was not established. The two feet kicked by the defendant were not fatal. There is no direct causal relationship between the defendant Liu's behavior and the victim's death result, and the death result is unpredictable. Therefore, the defendant Liu should not bear criminal and civil responsibilities.
test result
After the trial, the court held that the defendant Liu had an argument with the victim and had physical contact. The existing evidence can prove that the defendant Liu pushed the victim's shoulder and kicked the victim's leg. However, judging from the intensity and location of the attack, the defendant's behavior did not reach the intensity that might cause the victim's death. Defendant Liu could not foresee that the victim would have a heart attack and die at the time of the crime. The defendant was neither intentional nor negligent subjectively. The death of the victim Zhang is more due to unexpected factors. Defendant Liu's beating behavior is only an inducement, so the defendant should not bear the criminal responsibility of negligent death.
Although the defendant's behavior does not constitute a crime, considering that the defendant has an unshirkable responsibility in the cause of this case and his beating behavior is the inducement of the victim's death, the defendant should bear a certain proportion of civil liability for the actual losses caused to his family by the victim's death as appropriate.
Finally, the court ruled that:
1, the defendant Liu is not guilty;
2. Compensate the plaintiff in the incidental civil action with RMB105,000 yuan.
Jurisprudential analysis
First, does the defendant's behavior constitute a crime of negligent death?
One view is that Liu's behavior constitutes a crime of negligent death. The reason is:
Although Liu's beating behavior is only one cause of the victim's death, the victim is an old man in his seventies, and Liu is an adult with full capacity. Based on common social knowledge, he should have foreseen that his actions might lead to the death of the victim, but he still beat the victim, and there is a causal relationship between his beating behavior and the death result. Liu should have foreseen the death result of the victim and failed to satisfy it, which was subjectively negligent. His behavior constitutes a crime of negligent death.
Another view is that Liu's behavior does not constitute a crime. The reason is:
First of all, the existing evidence can only prove that the defendant Liu pushed the victim's shoulder and kicked the victim's leg. From the analysis of general social experience, it is impossible to kill people by hitting their shoulders and legs. Therefore, it can be said that the defendant's behavior intensity in this case did not reach the intensity that may lead to the death of the victim. Secondly, combined with the conclusions of forensic experts and related consultations, the direct cause of the victim's death is a heart attack, and the beating behavior of the perpetrator only leads to the victim's death. Therefore, the defendant Liu was neither intentional nor negligent in the death of the victim subjectively, so he was not criminally responsible for the death caused by negligence.
The perpetrator of this case, Liu Moumou, beat the victim, which led to the recurrence of the victim's heart disease, which led to the victim's death. From this point of view, there is a causal relationship between the actor's behavior and the victim's death, but the question is how to evaluate this | "causal relationship in the sense of criminal law". First of all, the causality in the sense of criminal law should be an inevitable direct causality, that is, there is an inevitable, internal and regular relationship between behavior and result, and usually only this causality can make the actor responsible for the result. In this case, the direct cause of the victim's death was a heart attack, and the beating behavior of the perpetrator was only the cause of the victim's heart attack. The victim is likely to be emotional because of being beaten, which leads to the death result of heart disease, that is, there are a series of intermediate links such as emotional excitement and heart attack between the actor's behavior and the victim's death result, but from the analysis of general social common sense, these intermediate links are not the inevitable result of the actor's behavior, so there is no direct and inevitable causal relationship between them. Secondly, the constitution of crime in China's criminal law is the unity of subjective and objective elements. An act constitutes a crime. In addition to the causal relationship between behavior and result, the actor must also be intentional and negligent subjectively. In this case, although there is a causal relationship between the actor's behavior and the victim's death result, that is, the victim will not be emotional and will not have a heart attack, there is still an intermediate relationship between them. These intermediate links are more of an accident. When the perpetrator beats the victim, it is impossible to predict that the victim will have a serious heart attack, and it is impossible to predict that his actions such as pushing the victim's shoulder and kicking will trigger the victim's heart attack. At that time, it was impossible for the perpetrator to predict the outcome of the victim's death. The victim's death is mostly caused by unexpected factors, and the actor has neither intention nor negligence subjectively, so he should not bear the criminal responsibility of negligent death.
2. On the issue of civil compensation,
Although Liu's behavior did not constitute a crime, because he did beat the victim, the victim died of a heart attack. In this process, the actor is at fault and there is no exemption. Therefore, the actor should bear civil liability for the economic losses caused by the victim's death, but at the same time, considering that the direct cause of the victim's death is a heart attack, the actor's heart attack on the victim is only an inducement. Therefore, according to
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The criminal who caused death by negligence was acquitted —— Is the driver guilty or not guilty of defending the bizarre car accident? One day in August, 2003, Shi Jun, a driver who was at home awaiting trial for two years on suspicion of negligent death, received an indictment from the procuratorate. At the same time, Shi Jun was told that he had the right to hire a lawyer to defend him. So Shi Jun found Wang Xueli and hired her as. ...
See the defense for the main points of case views.
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Is it a crime of negligent death or innocence?
As neighbors, Party A and Party B quarrel over trifles. After being pulled away by the masses, when Party A turned to pick up bricks, Party B suddenly fell to the ground and died. According to the identification results, sudden cardiac death, disputes and trauma (all abrasions) before death are the inducement of acute heart attack in patients with type B. Note: During the process, Party A did not beat or collide with Party B, but both parties pulled. A is practicing medicine without a license. He has seen a doctor for B and knows that B has a heart disease.
1, which constitutes the crime of negligent death. A no intention to hurt or kill. However, knowing that B had a heart attack, there was a dispute with him, and the victim died due to negligence.
2. Naivety is an accident. The crime of causing death by negligence is a harmful act committed by negligence, which has caused harmful consequences. In this case, Party A did not commit any beating or collision against Party B, which could not constitute a crime. Although I know that B has a heart disease, I can't foresee that quarreling with B will lead to B's illness and death.
Key: Should A foresee the possible consequences of B's death?
Question: If there is no positive behavior of beating or collision, can it lead to death through negligence?
According to common sense, the general push-pull behavior cannot cause personal injury and other consequences.
Although A knew that B had a heart attack, his behavior of picking up bricks had nothing to do with B's death. A doesn't know and shouldn't know.
Daoqi's behavior will lead to B's death, and you should not be satisfied with the consequences of your actions.
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The defendant's innocent defense in the crime of negligent death.
Introduction: Fan Chun is 23 years old and Liu x20 20 20 years old. They are good friends. 165438+1October 14 In the evening, two people drank too much outside. At three o'clock in the morning, Fan Chun refused to go back by the Tianjin River, fearing that he would be criticized for coming home drunk. Liu X insisted on pulling him back, and Fan Chunjian never came back. In the process of tearing, the two fell into the water, Fan Chun could swim and climb ashore, and Liu X could not swim and drown. * * Bureau and procuratorate shall investigate Fan Chun's criminal responsibility for the crime of negligent death. I plead not guilty.
My analysis of Fan Chun's parents at that time was that once Fan Chun was acquitted, it meant that * * and the people's procuratorate had misjudged the case and had to compensate for illegal detention. The investigators will also be affected, and the families of the victims will complain everywhere. Therefore, it is impossible to be acquitted. However, my plea of innocence can definitely be used as a factor in sentencing. Probably convicted, but suspended, no jail time.
After trial, the court sentenced Fan Chun to one year's imprisonment and suspended for one year on February 19, 2008.
defend
Dear court:
Entrusted by Fan Chunzhi's mother, I acted as Fan Chunzhi's defender. After accepting the entrustment, the defender met with the defendant four times, inquired about the case in detail, carefully read all the files and asked the relevant personnel. Many lawyers in the law firm discussed and supported me in defending Fan Chun's innocence, which has been reported to the Justice Bureau for the record.
Here, I would like to express my sorrow for the unfortunate death of Liu X and my condolences to his relatives.
First of all, make an assumption that if Fan Chun can't swim, he will drown after falling into the water. So, who caused his death because of negligence? At least he won't be held accountable again, right? Because he can swim and still be alive, he became the defendant. It seems that swimming became his crime.
Let's imagine again: if Liu X can swim and two people get up after falling into the water, who will be investigated for fault? Obviously not. It seems that Liu X can't swim, which became Fan Chun's crime and led to criminal responsibility.
In the whole case, the defender believes that Liu X is completely at fault for causing the two people to fall into the water, and Fan Chun is not at fault.
First of all, according to the four elements of crime, analyze the subjective and objective aspects of this case:
1, the will factor of negligent crime is that it should be foreseen but not foreseen, or it can be avoided if it is foreseen and credulous. The indictment believes that the objective aspect that caused the two to fall into the water was "tearing each other." The complete statement of the above two contents is "Liu X and Fan Chun should have foreseen that they might tear at the river and fall into the water, but they did not foresee it, or they could have avoided it if they had foreseen it", which constitutes a fault.
Defenders stressed that the indictment is "mutual tearing", in fact, both parties are at fault and bear the same responsibility. However, because Liu has died, only Fan Chun's negligence responsibility is investigated.
2. The "mutual tearing" mentioned in the indictment includes both Liu X tearing Fan Chun and Fan Chun tearing Liu X. But the defender believes that Liu X did tear Fan Chun, but Fan Chun did not tear Liu X. What he did was to get rid of Liu's tearing.
3. Subjectively analyze:
Liu X insisted on getting Fan Chun home. Fan Chun refused to go home, so he took him. In other words, Liu X has subjective factors to tear Fan Chun. Fan Chun didn't mean to drag Liu X, nor did he have the motivation to drag Liu to stay and catch cold. So there is no subjective factor of tearing. In other words, if Liu X goes home by himself, Fan Chun will not stop him, so there will be no tearing.
4. Objectively speaking, Liu X carried out the act of tearing people, while Fan Chun did not tear Liu. All he did was get rid of Liu's tear.
First of all, Fan Chun didn't want to go home in the middle of the night, and Liu X dragged him home many times. According to Dong Nan's testimony (file 14), Dong Nan said that Liu X called him. "Liu X said that a person can't get rid of Fan Chun, and he asked me to send Daming home together. He also said that if it is a brother, it is necessary to come over. " This shows that Liu X must drag Fan Chun home, and if he can't drag it alone, he will find someone to drag it with him.
Look again: According to Fan Chun's account, Fan Chun fell to the ground, and Liu pulled him up again, slapped him twice and continued to pull. Excuse me: Fan Chun doesn't go home. After Liu X's persuasion fails, will there be "tearing" if he goes back to his home?
Third: Liu drank less than Fan Chun, was more sober than Fan Chun, and already knew that Fan Chun was helped out of the bar by two people (file 14). Therefore, Liu X should have foreseen the consequences of tearing by the river and should not take the initiative to pull him. However, it is Liu X's fault that he should have foreseen it but didn't foresee it, or that he could have avoided credulity after foreseeing it. We can give an example: it has been reported many times that someone is going to jump off a building. How was the rescued police rescued? If they drag the person who tried to commit suicide back in the past, it may inspire him to jump immediately. Even if he doesn't jump, the police will drag him, and it's easy for him to fall together if he doesn't leave. Therefore, the police who saved them all stayed away, coaxed them and forced them to go home when they were out of danger. As an adult, Liu X should have foreseen the possible consequences of pulling a person who doesn't want to go home by the river. But unfortunately, he insisted on dragging Fan Chun home, causing them to fall into the water. If Fan Chun can't swim, he will be "killed" by his own mistakes.
Fourth: Fan Chun doesn't want to go home late at night, which has something to do with Liu X.
Fan Chun takes care of Liu X in many ways. In 2007, Liu x 1 1 was paid by Fan Chun (witness Peng Guimei). Liu X is dissatisfied with the family environment. Fan Chun's mother has been living in Fan Chun's house for several months while she is away. The Mid-Autumn Festival was celebrated at Fan Chun's father's place (see the evidence provided by the defender above). However, Fan Chunjia only has a single-family house. Fan's mother felt inconvenient when she came back from other places. She told Fan Chun not to live in our house and told him to go back today. However, on the night of the murder, Liu X did not return to his home. Fan Chun is worried that taking Liu X back to his home will lead to criticism from his mother. So he would rather stay in the cold than go home, and wait until dawn when his mother goes to work. And what about Liu X? Only when Fan Chun goes back can he continue to live in Fan Chun's house, so he must get Fan Chun home. If it weren't for Liu X, Fan Chun might have gone home.
Fifth: Fan Chun doesn't know if Liu X can swim, but Liu X knows that he can't swim. So he should foresee the consequences, and he should avoid forcibly pulling others by the river. However, his carelessness or overconfidence can be avoided.
Sixthly, according to the national standard of People's Republic of China (PRC)-the threshold and detection standard of blood alcohol content of vehicle drivers.
Drunk driving: the driving behavior in which the blood alcohol content of a vehicle driver is greater than or equal to 80mg/ 100ml.
The autopsy report in this case proves that the alcohol content in Liu X's blood has reached 1.40mg/ 1.00ml, which is nearly double the drunk driving standard. This shows that Liu Ye is drunk, which will lead to instability, weakness and slow response. In this case, it is easy to fall into the river. Therefore, when Liu falls into the water, he should consider the factors that reduce his consciousness and self-control after drunkenness.
Let's see if Fan Chun objectively carried out the tearing behavior.
First of all, Fan Chun has the right to dispose of his private life, and there is nothing wrong with not going home late at night. At night, there are more people hanging around. Are they all at fault?
Secondly, is it a "fault" for the defendant to "forcibly break away from Liu X's pull"?
It has been explained above that "Liu X pulled the defendant home, but the defendant didn't want to go home and struggled to get rid of Liu X's pull". This is not tearing Liu X, he has the right to get rid of Liu's pull. Is it a "fault" to break away from Liu's pull? The law has never stipulated that "citizens are on the river, and if someone tugs hard, they must follow them and cannot get rid of them." There is no such specification. Fan Chun also has no obligation to foresee the consequences of not following Liu X into the water.
Fourthly, judging from the evidence, the so-called mutual tearing includes Fan Chun's taking the initiative to tear Liu X, but there is neither evidence nor logical reasoning.
Fan Chun just didn't want to go home and didn't mean to force Liu X to stay and catch cold with him. So logically speaking, Fan Chun should not take the initiative to tear Liu. Regarding the "mutual tearing" mentioned in the indictment, there is no third party to prove that Fan Chun took the initiative to tear Liu, and there is no other evidence. It's just Fan Chun's confession. According to Article 46 of China's Criminal Procedure Law, if only the defendant confesses and there is no other evidence, the defendant cannot be found guilty and punished. Otherwise, it is self-incrimination. Even if Fan Chun's narrative is tearing the other side, then he should find out whether it understands that tearing the other side also includes his initiative to tear Liu. Did he take the initiative to pull Liu X, or did he try his best to get rid of it?
The defender believes that; The plot of this case should be expressed as "Liu X pulled the defendant home, but the defendant didn't want to go home, and struggled to break free under the pull of Liu X". In addition, the two men drank too much, and their consciousness and self-control declined, causing both sides to fall into the water. The defender believes that this statement in this case is in line with reality.
The verb (the abbreviation of verb) Fan Chun has been actively rescued.
Fan Chun claimed to have saved Liu three times until he was unable to save him. From a reasonable point of view, this is credible because they are friends and he has always taken care of Liu. Secondly, indirect evidence can be confirmed: witness Kun Yang confirmed that Fan Chun called them down to save people and promised them money (file 6-9 pages). He asked others for help. As a swimmer, he must have been rescued. Moreover, when you are exhausted and unable to continue to rescue, you also ask others for help, which is also rescue.
6. The indictment states that "Fan Chun was arrested by the * * authorities at the scene", and the defender thinks that the expression of "arrest" is inaccurate. Witness Kunyang. Dong Nan confirmed that Fan Chun entrusted Kunyang and Dong Nan to call 1 10 to call the police when the phone ran out of power and fell into the water. Then, instead of running away, he waited for the police. If Fan Chun thinks he is guilty, then this behavior is surrender. If Fan Chun finds out that he is innocent, he should also take the initiative to explain the situation to the * * authorities.
Seven, Fan Chun truthfully described the plot of the two men falling into the water on the first day of police interrogation. If Fan Chun finds himself guilty, then, according to the Criminal Procedure Law, he is turning himself in.
The above three items: I hope it will be stated in the judgment.
Eight, how to treat the defendant pleaded guilty?
The defendant pleaded guilty and expressed remorse. However, he is not a legal professional. He said he was guilty, but not necessarily guilty. Just like a person saying that he is sick, he is not necessarily sick. It depends on the doctor's diagnosis to determine whether he is sick or not. At the same time, lawyers do criminal defense and defend independently according to law, which is not influenced by the client's will. Therefore, the defendant's confession does not affect his plea of innocence. The court found him guilty not because he pleaded guilty, but because of the constitutive elements of the crime.
The above is my defense of the defendant. Thank you for listening.