Article 234 of the Criminal Law of People's Republic of China (PRC) shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance.
Whoever commits the crime mentioned in the preceding paragraph and causes serious injuries shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes death or serious disability by particularly cruel means shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death. Where there are other provisions in this Law, such provisions shall prevail.
Second, the concept and composition
The crime of intentional injury refers to the act of intentionally and illegally damaging the health of others.
(A) the object elements
The object of this crime is the body 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 this crime violates the body rights of others. Therefore, intentionally hurting your 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 serviceman who injures himself in wartime and evades performing military service obligations shall be investigated for criminal responsibility in accordance with the provisions of Article 434 of this Law.
(b) objective factors
This crime is objectively manifested as an act of illegally damaging others' bodies.
1, there must be behavior that harms 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 which 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 this crime.
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. The legitimacy of the injury behavior that occurred on the fierce antagonistic sports day 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, damage to the body of others must cause a certain degree of personal injury to others, in order to constitute this crime.
If it is just general punching, kicking, pulling and tearing, and there is no harmful result, it cannot be punished as this crime. 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 there is no injury above minor injury, if it does not reach the injury level or reaches the level, it is a minor injury, so it cannot be punished as this crime.
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 this crime is the general subject. Any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute this crime. Among them, a natural person who has reached the age of 14 weeks to 16 years shall bear criminal responsibility for intentional injury and serious injury or death.
(4) Subjective factors
Subjectively, this crime is 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 extent to which his injury behavior can cause harm 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.
Third, identify
(a), the form of intentional injury
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.
If an actor who meets the requirements of the subject of the crime commits an injury under the condition of intentionally controlling the injury, causing physical injury to others and reaching the degree of minor injury, it can be regarded as the accomplishment of the crime of intentional injury. Intentional injury causes serious injuries, including two situations: first, the perpetrator obviously only has the intention of minor injuries, but the negligence causes serious injuries; Second, the actor obviously had the intention of serious injury, which objectively caused serious injury. Intentional injury causing death is a typical aggravated consequence crime. If intentional injury does not cause death, it should not be considered as an attempt of intentional injury to death.
The establishment of intentional injury death objectively requires that there is a causal relationship between the injury behavior and the death result, and subjectively requires that the actor has no intention of death, but it is possible to foresee it. Since death is due to injury, of course, death should be limited to the object of injury, that is, only the object that caused the injury dies can be considered as death due to injury. However, we should not make a rigid understanding of the injured object, especially pay attention to the principle of dealing with wrong facts. That is to say, in the case that 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 wrong understanding of the facts. (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.
(2) Does the act of harming others' bodies based on others' promises constitute the crime of intentional injury?
This is a thorny issue. In many countries, the criminal law only clearly stipulates the punishment for the crime of homicide based on commitment, and its statutory punishment is lighter than that of ordinary intentional homicide, but there is no provision for the harm based on commitment. So some people think that since the criminal law only stipulates the crime of murder based on commitment, but not the crime of injury based on commitment, it shows that the injury based on the victim's commitment is innocent. Some people come to the opposite conclusion: because the criminal law only specifically stipulates the murder based on the promise, but not the injury based on the promise, this means that the injury based on the promise is treated as an ordinary injury crime. Both seem to have gone to extremes, so there are two intermediate views: one view holds that if the victim promises to hurt, if the behavior violates public order and good customs, regardless of the severity of the injury, it will be punished as intentional injury; If it does not violate public order and good customs, even if it causes great harm, it cannot be regarded as the first crime of intentional injury. Another view is that in the case of injury caused by the victim's commitment, if the behavior causes great harm, it is considered as intentional injury. However, it is generally believed that if the victim promises to hurt, it should be considered as intentional injury and cause serious injury. Considering the connection with agreed homicide, the act of causing serious injury is usually dangerous to life, and the murder promised by the victim constitutes the crime of intentional homicide without exception, so it is more appropriate to identify the agreed injury that causes serious injury as the crime of intentional injury. If the minor injury is caused by the victim's promise, it should not be considered as intentional injury.
(3) The problem of simultaneous injury.
The so-called simultaneous injury refers to the situation that two or more people unintentionally contact and hurt others at the same time. In China's criminal law, simultaneous injury is not specifically defined as * * * simultaneous injury. Therefore, simultaneous injuries cannot be regarded as * * * simultaneous injuries, and should be dealt with according to the following principles: (1) Anyone who does not cause injuries at the same time shall not be held criminally responsible. (2) The injury caused minor injuries at the same time, but the evidence shows that the minor injuries were caused by one person's behavior, but it is impossible to find out who caused the minor injuries, and no one can be investigated for criminal responsibility. (3) At the same time, when the injury causes serious injury, but there is evidence that the serious injury is caused by one person's behavior, but it cannot be determined who caused the serious injury, each actor can be investigated for criminal responsibility for attempted intentional injury. (4) If simultaneous injuries have caused minor injuries or serious injuries, and it can be determined what kind of injuries have been caused by their respective actions, criminal responsibilities shall be investigated respectively.
(4) the number of intentional injury
The distinction between several crimes of intentional injury should be solved according to the standard of distinguishing one crime from several crimes. It should be noted that when the injury belongs to the legal means of other felonies, it should not be considered as several crimes, but as other felonies. For example, if the actor hurts others in order to rob others of their property, whether or not he obtains property, it should be regarded as robbery, not intentional injury, nor several crimes.
If the perpetrator injures more than one person in a row, is it regarded as a serial offender, punished according to one crime, or punished according to several crimes of the same kind, and whether the punishment is combined in the case of several crimes of the same kind is worth studying. Whether the perpetrator injures more than one person in a row is a serial offense depends on whether the establishment of the serial offense requires the perpetrator's continuous behavior to infringe the same legal interest. If only the behavior that requires continuous execution infringes on similar legal interests, then the health of many victims belongs to similar legal interests, and serial offenders can also be established. If the behavior that requires continued execution violates the same legal interest, then the health of multiple victims does not belong to the same legal interest. German jurisprudence has always adopted the same legal interest theory: if it is an infringement on individual life, body, freedom or reputation, only the same object can be established as a serial offender; If the object is different, such as killing three people in a row, or injuring three people in a row, it will not be treated as a serial offender. According to the theory of the same legal interest, if a person hurts more than one person in a row, he cannot be established as a serial offender, but as an accomplice. This determination is very reasonable. Because legal interests are divided into personal exclusive legal interests and non-personal exclusive legal interests, it is to emphasize the protection of personal exclusive legal interests; The act of infringing on the exclusive legal interests of different individuals is recognized as several crimes, which affirms the exclusive legal interests of different individuals and the irreplaceable nature of life, health, freedom and reputation.
The general provisions of China's criminal law do not stipulate the concept and punishment principle of continuous offense, but there are two legislative examples for the punishment of continuous offense in some provisions of the specific provisions: First, for economic crimes, property crimes and other crimes involving property, the criminal law stipulates that continuous offense should be treated according to the cumulative amount. Second, a higher statutory penalty is imposed on recidivists. These two treatment methods fully meet the requirements of the principle of suiting crime to punishment. However, in the absence of similar provisions in the criminal law, and the statutory punishment is aggravated because of "serious circumstances", "particularly serious circumstances" and "particularly bad circumstances", and the statutory punishment itself is not heavy, it is inevitable to consider the behavior of continuously infringing on the exclusive legal interests of different victims as a serial offender. The crime of intentional injury is such a situation, that is, if three or more people are slightly injured in a row, it is regarded as a serial crime, and only one person is intentionally slightly injured, which will inevitably lead to the irrationality of punishment. Therefore, this book believes that as long as they are not the same, there is no doubt that there is a combination of punishment for several crimes, even if the legal interests are the same. Moreover, this phenomenon belongs to multiple acts, which is consistent with a crime constitution, and it is completely established according to the criteria for distinguishing the number of crimes. In addition, there is no provision in the criminal law that hurts others or hurts many people seriously. Therefore, it does not violate the principle and spirit of criminal law to identify the behavior of continuously hurting others as the same crime.
It is faced with the problem of whether to combine punishment if the behavior of injuring many people in succession is regarded as the same crime. Before the judgment is pronounced, if a person commits several crimes, he should be punished as one crime in principle. However, when the punishment for one crime does not conform to the principle of suiting crime to punishment, the punishment for several crimes should be combined. Although the crime of intentional injury has three statutory punishment ranges, the same kind of crime cannot be regarded as an escalation of statutory punishment. If treated as a crime, it is difficult to achieve a legally prescribed punishment for a crime. For example, even if the perpetrator caused minor injuries to three people three times in a row, and the circumstances were serious, it is impossible to punish only one crime according to the statutory punishment of "causing serious injuries", or even if he advocated combined punishment for several crimes, he could only be sentenced to fixed-term imprisonment of not more than three years, criminal detention or control; For another example, even if the perpetrator causes serious injuries for three times, it is impossible to be punished according to the statutory punishment of "causing death or causing serious disability by particularly cruel means". Only by combining punishment for several crimes can the crime and punishment be adapted. This in turn enlightens people that it is not easy to admit serial crimes for intentional injury.
(5) According to the provisions of Article 238, Article 247, Article 248, Article 289, Article 292 and Article 333 of the Criminal Law, those who cause disability by illegal detention, extorting confessions by torture or obtaining evidence by violence, maltreating detainees, gathering people to "smash and rob", causing serious injury or illegally organizing or forcing others to sell blood, these provisions belong to.
Fourth, the difference with other crimes.
1, the boundary between intentional injury and general injury. Beating generally only causes temporary physical pain to others, or slightly stimulates others' nerves, but it does not destroy the integrity of human tissues and the normal function of human organs, so it does not constitute a crime. It is worth noting that some beating behaviors have caused certain harm to others' bodies on the surface, but they are obviously minor, that is, according to the identification standard of minor injuries, those that do not constitute minor injuries cannot be punished as intentional injuries. Therefore, when distinguishing the crime of intentional injury from the crime of general injury, we should not only consider whether the behavior has caused damage to the function of human tissues and organs, but also examine the degree of damage.
2. The boundary between this crime and intentional homicide. Generally speaking, it is not difficult to distinguish between the two crimes, but in the case of attempted intentional homicide causing injury or intentional injury causing death, the two crimes are easily confused. The main difference between the two crimes lies in whether the actor intentionally deprives others of their lives. If the actor does not intentionally deprive others of their lives, but intentionally damages the health of others, even if the behavior objectively leads to the death of others, it can only be considered as intentional injury; If the perpetrator intentionally and illegally deprives others of their lives, even if his behavior does not cause others to die, it also constitutes the crime of intentional homicide (attempted). In judicial practice, to determine whether the intentional content of the perpetrator is injury or murder, we should follow the principle of consistency between subject and object, find out all the facts of the case, and make a comprehensive analysis and judgment from the aspects of the relationship between the perpetrator and the victim, the cause, process and result of the crime, the means of committing the crime, the tools used, the location, intensity, time, place, environmental conditions and the performance of the perpetrator before and after committing the crime.
3. The boundary between this crime and the crime of negligent death. In the cases of intentional injury and death, the similarities between them lie in: objectively, both caused the death of the victim, subjectively, people often show a negligent psychological attitude towards the occurrence of the death result. The fundamental difference between the two crimes is that the former crime has the intention to hurt others, and its death result is caused by reasons other than the will of the actor; Then there was no intention to commit a crime, but negligence caused death. In judicial practice, it is very important to determine whether the perpetrator has criminal intent according to the case, so as to draw a clear line between the two crimes.
4, rape, robbery, etc. In the process of "causing serious injuries". Generally, as an aggravating circumstance of the corresponding crime, it is no longer punished according to this crime.
5. The boundary between intentional injury and other injuries. Article 234 of the Criminal Law stipulates: "Where there are other provisions in this Law, such provisions shall prevail." That is, the perpetrator hurts others in the process of committing other crimes, and if there are other provisions in the criminal law, he shall be convicted and sentenced in accordance with the relevant provisions. If rape, robbery, arson and other crimes cause harm to others, they shall be convicted and sentenced in accordance with the corresponding regulations, and shall not be punished as intentional injury.
Verb (abbreviation of verb) criminal responsibility
Be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Those who cause serious injuries shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes death or serious disability by particularly cruel means shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.