Article 1 of the model report on legal case analysis: During my internship in a law firm, I followed lawyers and related cases and undertook some work. Now I choose a case for partial adaptation and combine some hot legal issues and disputes to complete the case analysis report.
I. Summary of the case
On a dark night, at 1: 28 am Beijing time, the driver Chen Mou drove a car on the road and turned around at a V-shaped intersection. Due to the large turning angle at the intersection and unclear sight at night, the driver did not see the drunken victim Wang lying at the turning intersection, and the car ran over Wang. After that, the driver didn't see Wang until he got off the bus and saw him lying under the car. The victim Wang was found by passers-by and sent to the hospital for treatment, and died after being rescued the next morning. After professional forensic identification, the victim Wang was crushed by a car and caused internal bleeding, which led to traumatic hemorrhagic shock and eventually died. The traffic police department conducted a related investigation on the scene of the accident and found that the victim Wang was on the left side of the V-shaped intersection. The traffic police brigade conducted a physical experiment and used a ready-made simulation of a car. It was found that the car could not find the position of Wang when it turned around, that is, it was in a blind spot, and it could not be found at night. Even if it is found, it is impossible to take relevant remedial measures in time. A week later, the driver Wang was arrested and brought to justice by the relevant departments, and explained the relevant case, including the defendant's subjective will that the victim Wang was dead at that time, and other circumstances were consistent with the traffic police department's determination.
Second, the case analysis
There are two main points of dispute in this case: the first is the driver Chen Mou's characterization of beating behavior, that is, whether it is an accident. The second is how to define the escape behavior after Chen Mou.
(1) Chen Mou's beating was an accident.
Article 16 of the Criminal Law stipulates that although an act objectively causes damage, it is not caused by intention or negligence, but by irresistible or unforeseeable reasons, and does not constitute a crime. According to this regulation, the so-called accident refers to the situation that although the behavior objectively causes damage consequences, the actor is not out of intention or negligence, but due to unforeseen reasons. Its essential feature is that the actor is innocent, and the damage result is caused by irresistible or unpredictable reasons. Although it can be concluded from the forensic appraisal conclusion that there is a direct causal relationship between the death of the victim Wang and the collision behavior of the driver. However, according to the report materials of the traffic police brigade on the investigation and inspection of the accident site, it can be concluded that the subjective state of the collision is neither intentional nor negligent, but caused by the structure of the road section itself, the objective reason for the darkness when the accident occurred and the subjective negligence of the victim Wang drunk. This is questionable. As a good driver, he must slow down and pay attention to safety when turning around. If the driver does this duty of care, even if he hits someone, the victim Wang will not die of internal bleeding and traumatic hemorrhagic shock. Is Chen Mou also at fault subjectively? The victim Wang himself was at fault and was drunk in a dangerous place late at night.
Ordinary people don't choose to lie down at the corner, which is a dangerous area. With his usual thinking, the driver can't predict that there will be a person lying on the right side of the U-turn, especially in the middle of the night. The forensic report shows that the victim Wang did not die on the spot. Even if the driver slows down (in the middle of the night, if the surrounding environment is unsafe, the driver dare not slow down too slowly), if he hits a key part, the consequences of serious injury to the victim Li cannot be avoided. The defendant's abandonment and escape to the victim increased the death probability of the victim Wang. Moreover, the law should not be forced. There are not so many ifs in the actual situation, and according to the principle of benefiting the defendant when in doubt, there is no evidence to determine whether the damage caused by the defendant Chen Mou is intentional or negligent. Therefore, a ruling and judgment should be made in favor of the defendant Chen Mou, and Chen Mou should not be ruled to have violated traffic regulations in beating people. Therefore, in this case, the collision of defendant Chen Mou should be regarded as an accident.
(2) Ding's escape behavior should be regarded as indirect intentional homicide. First of all, based on the judgment of the first instance, since the collision of the defendant Chen Mou was an accident, the determination of the crime of causing traffic accidents can be ruled out. The difference between traffic accident crime and traffic accident crime lies in whether the actor is subjectively negligent or objectively violates traffic management regulations. Subjectively negligent, violating traffic laws and regulations, which constitutes a traffic accident crime; If the perpetrator did not violate the traffic regulations, and the traffic accident was caused by unforeseeable, irresistible and unavoidable reasons, there is no crime and it cannot be considered as a crime. Article 133 of the Criminal Law: Whoever violates traffic laws and regulations, thus causing serious accidents, causing serious injuries, deaths or heavy losses to public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever escapes after a traffic accident or has other particularly bad circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; Whoever escapes and causes death shall be sentenced to fixed-term imprisonment of not less than seven years. Combined with the law and relevant analysis, the escape behavior of the defendant Chen Mou does not constitute a traffic accident crime.
Secondly, the escape behavior of the defendant Ding Mou constitutes the crime of indirect intentional homicide. Indirect intentional homicide means that the perpetrator knows that his behavior may lead to the death of the client, but subjectively allows this harmful behavior to happen, thus leading to the death of the client. Then the perpetrator committed the crime of indirect intentional homicide. In the crime of indirect intentional homicide, the actor knows that the harmful behavior may lead to the death of the client, and the will factor is the subjective laissez-faire attitude towards the harmful behavior, which leads to the death of the client due to the harmful behavior. Combined with the case, the defendant Chen Mou found that one person was injured by him, and slowly moved the car and drove away from the scene. What kind of psychological state is the defendant abandoning the victim Wang on the side of the road? Obviously, he knew that his behavior would cause the death of the victim Wang and ignored it, and then drove away. The defendant Ding Mou constituted the crime of indirect intentional homicide. According to Article 76 of the Road Traffic Safety Law of the People's Republic of China, the defendant has the obligation to help the victim Wang.
The provisions of the second paragraph: in the event of a traffic accident between a motor vehicle and a non-motor vehicle driver or pedestrian, the motor vehicle party shall bear the responsibility; However, if there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and the motor vehicle drivers have taken necessary measures, the responsibility of the motor vehicle party shall be reduced. However, he did not regard the king as an obligation and let the status quo of the king go. Even if the defendant subjectively thought that Wang had died and fled because of fear, it was still the defendant's fault that the defendant did not judge Wang's life and death. Even if Wang dies, the victim should not be abandoned, and the doctor should judge Wang's life and death. Therefore, the principle of benefiting the defendant in case of doubt should not be applied here. The principle that doubt is beneficial to the defendant means that when there is reasonable doubt about the facts, a judgment or ruling should be made in favor of the defendant. Professor Zhang Mingkai believes that this principle has the following applicable boundaries: (1) Only when there is reasonable doubt about the facts can this principle be applied; (2) When the law is in doubt, it should be interpreted according to the objectives and rules of interpretation, and this principle cannot be applied; (3) When legislation is made in favor of the defendant under certain circumstances, the degree of benefit to the defendant shall be subject to the explicit provisions of the criminal law; (4) When there is doubt about the identification of the subjective psychological state of the actor, a reasonable presumption should be made, but this principle cannot be applied to declare innocence; (5) Although it is not certain that the defendant has committed a specific criminal act, it can be determined that the defendant has committed another criminal act with a lighter punishment, one of which should be considered as a misdemeanor and should not be acquitted by applying this principle. It is reasonable to infer the subjective psychology of letting the parties go. Whether the defendant thinks that the king is dead or not, the worst result for the king is death, and the defendant gave up the chance for the king to survive and chose the worst result, which is not allowed by law. The law cannot be enforced, but it must be reasonable and fair. To sum up, the escape behavior of the defendant Ding constitutes the crime of indirect intentional homicide.
Three. Basic conclusion or opinion
To sum up, Chen Mou, the defendant in this case, was an accident, but his subsequent driving escape has constituted the crime of indirect intentional homicide, and Chen Mou will make a reasonable and fair judgment.
Model report of legal case analysis Part II: Basic theory of Liu's negligent death case: 1. A person with incomplete capacity for civil conduct refers to a minor under the age of 10, and shall be represented by his legal representative. 2. Legal agency refers to the agency behavior that produces the agency right according to the expression of the authorized intention of the principal. The agent's authorization behavior is a unilateral expression of will. As long as the principal expresses his intention to authorize the agent in written or oral form, it means that the authorization will have the legal effect of authorization, and the agent will obtain the agency right. The duty of the guardian is to protect the life and health of the ward from infringement, and it is the legal obligation of the guardian to protect the personal safety of the ward. 4. The crime of negligent death refers to the act that the actor fails to foresee or has foreseen because of negligence, but he is confident that he can avoid the death of others and deprive others of their right to life.
Analysis: Zhao Nian is only eight years old. He is a person with incomplete civil capacity and cannot fully understand his own behavior. When Zhao's mother gave Zhao to Liu, it was equivalent to giving Liu the obligation of legal guardianship and telling him that Zhao could not swim. Under the premise of knowing this situation, Liu still took Zhao to swim in the reservoir and let him go into the water alone, causing Zhao to accidentally drown. Liu should bear most of the responsibility. He let Zhao swim alone, knowing that it would be dangerous to let him go into the water alone. This is subjective. Failing to fulfill the legal guardian's obligations and take due measures due to negligence is a supervisor's dereliction of duty, which leads to death. According to Article 233 of the Criminal Law, whoever negligently causes death shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and if the circumstances are relatively minor, he shall be sentenced to fixed-term imprisonment of not more than three years.
Analysis conclusion: Liu should bear criminal responsibility, but he should actively rescue Zhao when he finds drowning, and should be considered when sentencing.