Appellant of the circumstances of the crime (defendant in the original trial) Liu
People's Procuratorate of Nankang City, Jiangxi Province, former public prosecution organ.
The appellant (defendant in the original trial) Liu was detained in criminal detention on March 1 2008 and arrested on March 8 of the same year. Now detained in Nankang Detention Center. The People's Court of Nankang City, Jiangxi Province, the public prosecution agency, tried the case of Nankang City People's Procuratorate accusing Liu, the defendant in the original trial, of committing fire. On March 26, 2008, a criminal judgment was made ([2008] Kangxing No.31), and the defendant Liu in the original trial refused to accept it and appealed. Our college formed a collegial panel according to law. After reading papers and asking the appellant, it was found that at about 0: 00 pm on March 1 2008, when the defendant Liu was picking eggs at the orchard base of his son Liu Kuiqing at the bottom of Nankengzikeng, he left unlit cigarette butts in the grass, which ignited weeds and caused forest fires. After identification, the woodland area is 1.42 mu, with 62 cubic meters of accumulated trees and burned young trees 1.8460. The direct economic loss of the fire was 23,866 yuan. During the trial, 22 villagers expressed their understanding to the defendant Liu and asked the court to give Liu a lighter punishment. The evidence that the original judgment found the above facts includes: the testimony of witnesses Liu Huansu, Liu Huantong, Liu Huanheng, the confession of the defendant Liu, the transcripts of on-site investigation, criminal photos, the conclusion of forest fire identification, documentary evidence: weather conditions, the explanation of the defendant's arrest, physical evidence-lighters, and letters of understanding from villagers. The court confirmed the above facts identified in the original trial, and the second trial held that the facts of the case were clear and decided not to hold a trial. The facts ascertained by our court through trial are the same as those determined in the original judgment, and it is considered that the appellant constitutes a fire offence. On July 2, 2008, the final judgment came into effect.
judge
First instance: Defendant Liu committed fire and was sentenced to fixed-term imprisonment of 1 year and 3 months.
Second instance: the judgment of the original trial was decisive and accurate, the applicable law was correct, and the trial procedure was legal, but the sentencing was improper and should be corrected. According to article 189 (ii) of the criminal procedure law of People's Republic of China (PRC) and article 1 15 (ii) of the criminal law of People's Republic of China (PRC), the verdict is as follows: 1. The judgment of Nankang People's Court (2008) No.3655 was upheld. 2. Cancel the sentencing part of the appellant Liu by Nankang People's Court (2008) No.3 1 criminal judgment, that is, sentence the defendant Liu to fixed-term imprisonment of1year for 3 months; 3. The appellant (defendant in the original trial) Liu was convicted of fire and sentenced to 9 months' imprisonment. (The term of imprisonment shall be counted from the date of execution of the judgment. If the person is detained before the execution of the judgment, the detention 1 day shall be reduced to imprisonment 1 day. I.e. from March 1 to1October 30th, 2008)
Legally speaking, the crime of misfire refers to the act of causing a fire due to the negligence of the actor, causing serious consequences and endangering public safety. This is a crime of endangering public safety by negligent and dangerous methods.
1. object element
The object of this crime is public safety, that is, the life and health of the unspecified majority or the safety of major public and private property. In practice, the harm of this crime to public safety is usually manifested in two situations: endangering the safety of major public and private property, endangering the life and health of unspecified majority, and endangering the safety of major public and private property. Because the burning of fire must be attached to property, without the burning of property, it is difficult for fire to endanger the lives and health of unspecified majority, so it is rare to simply endanger the lives and health of unspecified majority.
2. Objective factors
This crime is objectively manifested as the behavior of the perpetrator endangering public safety by causing a fire and causing serious consequences. First of all, the actor must have the behavior that causes the fire. Fires generally occur in daily life, such as smoking and sleeping, and accidentally heating and cooking with fire. Cooking without taking care of the fire, installing stoves and chimneys in violation of fire prevention regulations, burning indiscriminately in the forest, or cooking with firewood without paying attention to fire prevention, which leads to a fire and causes great losses, constitutes a crime of fire failure. Seriously irresponsible or absent without leave at work; Or apply for illegal operation in production or force others to do illegal operation to cause fire, which respectively constitute the crime of dereliction of duty or the crime of major liability accident. If the fire is not caused by the actor's behavior of using fire, but by natural causes, it does not constitute a crime of misfire. Secondly, the behavior of the actor must cause serious consequences, that is, serious injury, death or heavy losses of public and private property. Only fire, no harmful consequences; Or the harmful consequences are not serious, which does not constitute the crime of fire, but belongs to the general fire behavior, which is punished by the regulations on administrative penalties for public security and is not included in the scope of criminal law adjustment. Finally, the above serious consequences must be caused by the use of fire, that is, there is a direct causal relationship with the use of fire. This feature is the objective basis for the actor to bear criminal responsibility.
3. Main elements
The subject of this crime is the general subject, and anyone who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can become the subject of this crime. If a state functionary or a person with a certain professional status negligently causes a fire in the course of performing his duties or engaging in business, it does not constitute a fire offence.
4. Subjective factors
This crime is subjectively manifested as negligence. The distinction between the crime of fire failure and the crime of major liability accident: from the phenomenon point of view, both of them may cause fire and cause serious harmful consequences. But there are obvious differences between them: (1) The subject of crime is different. (2) The objective aspects are different. The crime of major liability accident must occur in the process of production and operation, and major accidents occur because of disobeying management, illegal command and forcing workers to take risks in violation of regulations; The crime of accidental fire is generally caused by careless use of fire in daily life. Therefore, if a fire is caused by negligence, we should comprehensively analyze the characteristics of various elements of the crime and convict and sentence the perpetrator according to the corresponding criminal law. Both parties have no objection to the crime of fire in this case, but the appellant thinks that the sentence in the original trial is too heavy, and demands that the second trial be given a lighter punishment and sentenced to three months' criminal detention or suspended sentence. The sentencing standard of the crime of fire in China's criminal law is ① fixed-term imprisonment of more than three years and less than seven years; (2) If the circumstances are relatively minor, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Can probation be applied?
Probation means that for criminals sentenced to criminal detention and fixed-term imprisonment of less than three years, according to their criminal circumstances and penitence, if the suspension of criminal law does not harm society again, a certain probation period is stipulated to suspend the execution of punishment; During the trial, if certain conditions are observed, the original sentence will not be executed. Sentence a certain penalty, but temporarily suspend it, but reserve the possibility of execution for a certain period of time. Probation is not an independent punishment. In the sense of judging whether to execute punishment, probation is a sentencing system; In the sense of penalty execution, probation is also a penalty execution system. Object and conditions of probation: (1) The object of probation must be a criminal sentenced to criminal detention or fixed-term imprisonment of not more than three years. (2) The criminals do show repentance, and the application of probation will no longer harm the society, that is, the court thinks that it will not harm the society without detention. The above two items are indispensable. (3) The criminal law stipulates that probation is not applicable to recidivists, regardless of the length of the sentence. At the same time, there should be a probation period to adapt to the probation period. Article 73 of the Criminal Law stipulates that the probation period of criminal detention is limited to one year and two months. The probation period of probation for fixed-term imprisonment shall be not less than the original sentence but not less than five years, but not less than one year. The probation period of probation shall be counted from the date when the judgment is determined. If a suspended criminal is sentenced to an additional punishment, the additional punishment shall still be executed. In fact, this case can also be suspended. An old farmer, in the trial of the second instance, waited for 22 villagers to forgive the defendant Liu, and at the same time asked the court to give Liu a lighter punishment. Judging from the defendant's active fire fighting behavior, it is obvious that the defendant has repentance and is not harmful to society, because he has no intention of committing a crime himself, and can only say that he has bad habits and faults. A short prison life and a long trial period may make the defendant reflect more and let him live in fear. However, the second trial did not apply probation, which was thought-provoking.