defense
presiding judge and judge:
Shaanxi Keli Law Firm accepted the entrustment of the defendant Yao Jiaxin's parents, and obtained the consent of the defendant himself, and appointed two lawyers, Lu Gang and Yang Jianhua, to continue to act as defenders of the defendant Yao Jiaxin in the second trial.
According to Article 35 of the Criminal Procedure Law of the People's Republic of China and Article 31 of the Lawyers Law, it is the responsibility of the defender to present materials and opinions to prove the innocence, light crime or mitigation or exemption of criminal responsibility of the criminal suspect and defendant according to facts and laws, and to safeguard the legitimate rights and interests of the criminal suspect and defendant.
In the proceedings of first instance, the defense lawyers put forward the defense opinions that the defendant has a good attitude of surrender, first offense, occasional offense, confession and repentance, and that his criminal intention is instantaneous, without premeditation and planning, with less subjective malignancy, less social harm and less personal danger, which belongs to "passionate crime". The judgment of the first instance failed to give the defendant a lighter or mitigated punishment according to the law, and sentenced the defendant to death on the grounds of "extremely deep subjective malignancy, extremely cruel means, particularly bad circumstances, extremely serious crimes and great personal danger", which is contrary to the law.
after investigation by the court of second instance, the defender insisted that the determination of the first-instance judgment could not objectively and fairly reflect the criminal motive and circumstances of the defendant Yao Jiaxin. The defendant in this case should not be a criminal who must be sentenced to death by law, and the first-instance judgment was obviously "unclear facts and improper sentencing". The following defense opinions are given in detail:
1. There is no legal basis for the determination of the concept of passionate murder in the first-instance judgment.
After review, the judgment of the first instance holds that passion killing generally refers to the act of killing the victim because of the defendant's anger caused by the victim's improper words and deeds. This determination has no legal basis.
Defenders believe that passionate crime refers to the crime caused by the mental stimulation of the defendant at a specific time, place and environment due to his own psychological problems and other factors. This kind of stimulation may be the victim's fault, or it may be caused by indignation or sudden factors such as temporary emotional loss of control. In the crime of passion, the criminal's psychological state changes sharply, and his reason and will will will be weakened or lost to varying degrees in a short period of time. There are often phenomena such as vague and narrow consciousness, that is, the scope of knowledge is narrowed, the ability of self-control is weakened, and even some impulsive and reckless behaviors or actions are made, resulting in excessive behavior.
As far as this case is concerned, the defendant Yao Jiaxin and the victim Zhang Miaosu are strangers. The so-called "no enmity in the past, no resentment in recent days" has no interest. The cause of the murderer's intention is only an accidental traffic accident, and most of the traffic accidents are accidental and sudden. The defendant is unpredictable and unprepared beforehand. Therefore, this case is a typical sudden case caused by traffic accidents. According to the facts investigated by the court of first instance, the defendant was in a state of extreme panic and fear after the traffic accident. Although the victim was not at fault in this case, the stimulus to the defendant was caused by a sudden traffic accident, which should have no objection and still belong to the category of passionate crime.
in this section, the defender focuses on explaining the important facts of the defendant's criminal motive and subjective malignancy. However, the judgment of first instance established this theoretical interpretation as a legal concept and wrongly listed the applicable conditions of this concept. This undoubtedly aggravated the defendant's crime, which is obviously inconsistent with the facts and unfounded.
Second, although the criminal result of the defendant Yao Jiaxin objectively caused the death of the victim, it cannot be defined as "extremely subjective malignancy, extremely cruel means, particularly bad circumstances, extremely serious crimes and great personal danger".
1. The defendant was only 21 years old, and had been living on campus until the incident. He was a well-known and more typical catalpa student who was forced by education and was burdened by his parents' ambitions. For a long time, he has been living in a boring and simple environment such as exams, further studies, piano training day and night, and grading examinations. In addition, he is introverted and has little contact with society. Because of the pressure problems such as study and employment, and their hesitation and anxiety about the future, the defendant was psychologically burdened, and was in a state of tension, depression and depression for a long time. His bad mood was depressed and there were obvious psychological defects, which made his psychological endurance weaker than that of ordinary people. Like most of our children, he is powerless to fight and has nowhere to tell. Although these situations have attracted great attention from the country, the whole society and even parents in recent years, what is the reality?
All this is by no means the reason why he committed such a serious crime today, but is it just his own misfortune that can't arouse our vigilance and make us pity, sympathize, care, save and forgive him? What we want to save is actually this generation!
At the same time, the defendant only obtained the driver's license in July 2111, so he usually has no time to drive, lacks driving experience, has not handled traffic accidents, and does not have the ability to handle emergency affairs. Sudden accidents, in panic, produce all kinds of complicated ideas, leading to vicious homicide cases.
objective facts show that the defendant has no premeditation, no plan or even a clear result in this case. We know that any crime must pursue an inevitable result, and there must be some premeditation. In this case, the defendant's "killing people to kill them" behavior is tantamount to a moth's fire, and the result is self-evident. This is not only incomprehensible and intolerable! At the same time, it also shows that the result he pursues is not only absurd, but also obviously has no clear purpose. This understanding is also consistent with the defendant's criminal circumstances described by the defender below.
The accident of traffic accident is undoubtedly a great stimulus to the defendant's fragile psychology. The defendant is in extreme fear, panic, and instantly produced a criminal intent. The defendant has no plan or plan, and his subjective malignancy is essentially different from that of premeditated crimes, murder for money, revenge on society and endangering public security. After the case, the defendant voluntarily surrendered himself, confessed the facts of the crime, and pleaded guilty in court, which can show that the defendant has realized his mistake and the harm he caused to the victim, and has obvious repentance. The defendant's subjective malignancy did not reach the so-called "extremely deep" level.
2. In the investigation of the court of first instance, the defendant could not give an accurate description of the injury to the victim, and could not tell clearly how many times he stabbed, where he stabbed, and the order of stabbing. These situations fully conform to the defendant's psychological state at that time, that is, the defendant was really in a state of panic, fear and mental out of control, so he committed a criminal act in a moment of confusion and urgency. According to the forensic report, from the analysis of the victim's injury, it is inferred that the defendant stabbed six times, but there was only one fatal injury, and the victim was not fatal with one knife, but died of excessive blood loss. The defendant's criminal means are extremely simple, and there is nothing "special".
3. This case is an individual crime, not a gang crime, and its criminal influence and harm are not great. The time of the incident was around 23 pm, which coincided with no sunshine in winter and dim street lights; The location of the crime is located in the suburb between the University Town of Chang 'an District and the downtown area of Xi 'an. The environment is sparsely populated, and it is not a public occasion such as gathering people.
4. The defendant was a college student before the crime, and his mind was not mature. Judging from the defendant's growth experience, he always performed well in school, family and society before the incident, never received criminal punishment, even made a big mistake, and never had a dispute with anyone. The defendant devoted himself to studying and practicing the piano, and won more than ten awards, and also won a scholarship during his college years. After the incident, the defendant not only voluntarily surrendered himself, but also voluntarily and truthfully confessed his criminal facts after being brought to justice and during the trial, and clearly expressed his willingness to plead guilty. During the investigation of this case, the defendant actively cooperated with the investigation of the public security organs and led the investigators to retrieve the knives, so that the case was successfully solved. Through the performance during the trial, it can also be clearly felt that the defendant actively cooperated with the judicial organs in their trial. The defendant showed a positive attitude towards pleading guilty. During his detention, the defendant was extremely remorseful, and submitted two repentance books to the procuratorate on his own initiative, sincerely apologizing to the relatives of the victims, showing strong remorse, and being able to abide by the discipline of the prison, participate in various activities, and strive for positive reform. The defendant is no longer personally dangerous.
Therefore, although the defendant committed a criminal act, which caused harm to the society and caused the bad consequences of the victim's death, he should be tried and punished by law. However, the first-instance judgment gave the defendant the extremely subjective words of "extremely subjective malignancy, extremely cruel means, extremely bad circumstances, extremely serious crimes and great personal danger", which not only failed to objectively reflect the defendant's criminal circumstances, but also failed to reflect the fairness and justice of the law.
Third, the judgment of first instance failed to recognize the defendant's statutory and discretionary lighter or mitigated circumstances, and failed to be lenient, and the law was improperly applied.
1. The defendant is a first-time offender and an occasional offender. The law does not distinguish the scope of application of the first-time offender and the occasional offender, and there is no provision for the case of intentional homicide not to apply the lighter circumstances of the first-time offender and the occasional offender. It is obviously wrong that the judgment of first instance thinks that first-time offenders and occasional offenders are only applicable to juvenile offenders.
2. Article 4 of the Provisions of the Supreme People's Court on the Scope of Civil Proceedings Attached to Criminal Matters stipulates that if the defendant has compensated the victim for material losses, the people's court may consider it as a sentencing circumstance. The Supreme People's Court <; Some opinions on implementing the criminal policy of combining leniency with severity > 23. If the defendant actively compensates the victim after the crime, and pleads guilty and repents, it can be considered as a discretionary sentencing circumstance according to law.
In this case, the defendant's family has clearly expressed their willingness to make positive compensation, and has actually paid the funeral expenses of 15,111 yuan. Although the plaintiff in the criminal incidental civil case in the original trial did not accept compensation, the defendant and his parents had made full preparations for compensation, and the compensation raised in cash of 311,111 yuan, together with the car, was far higher than the legal provisions, and many times they hoped to make compensation through the court of first instance and hand it over to the victim's family. Later, mediation failed because the victim refused to accept it. In addition, although the amount of compensation collected by the relatives of the defendant did not reach the original demand of 541,111 yuan by the injured party, it was all the compensation. During the period, I also thought about making compensation by selling the only house, but I couldn't sell it because I didn't have a real estate license. However, the court should affirm the attitude and behavior of positive compensation for the relatives of the defendant. The people's court should consider this situation as a lighter or mitigated circumstance.
3. If the defendant Yao Jiaxin has surrendered himself after committing the crime and pleaded guilty in court, he should be given a lighter, mitigated and lenient punishment.
Article 67 of the Criminal Law of the People's Republic of China and Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Voluntary Surrender and Meritorious Service all stipulate that criminals who surrender themselves may be given a lighter or mitigated punishment. The Supreme People's Court's "Several Opinions on Implementing the Criminal Policy of Tempering Justice with Leniency" 4. If the defendant pleads guilty and repents, and lenient punishment is more conducive to social harmony and stability, it can be lenient according to law. 17. Generally, defendants who surrender themselves should be given lenient punishment according to law, except those who commit extremely serious crimes, are extremely subjective and vicious, and are extremely dangerous, or maliciously use their surrender to evade legal sanctions. 26. While severely punishing serious criminal offences in accordance with the law, we should also pay attention to combining leniency with severity if there are statutory or discretionary lenient punishment circumstances for the defendant, such as surrender, meritorious service and accessory. According to the specific circumstances of the crime, those who should or can be lenient according to the law should be fully considered in sentencing.
The system of voluntary surrender has a long history in China's legislative setting and judicial application, which is of great significance in dividing the judicial organs, disintegrating criminals, encouraging criminals to repent and turn over a new leaf, maintaining social stability and protecting citizens' legitimate interests. Surrender can reduce or even eliminate the personal danger of criminals; Reduce the burden of prosecution and judicial cost of judicial organs; Urge criminals to repent and do good. In this case, the defendant's parents immediately accompanied the defendant to the public security organ to surrender after learning of the defendant's criminal behavior. The original intention was to believe that the law would give Yao Jiaxin a chance to turn over a new leaf and become a new person. However, although the first-instance judgment found that the defendant had surrendered himself, it was not given a lighter or mitigated punishment, which violated the provisions of the law, and the value orientation of the judgment ran counter to the judicial concept and spirit of the voluntary surrender system in China, which was not conducive to preventing and reducing crimes.
Therefore, the first-instance judgment has clearly determined that the defendant has surrendered himself and other mitigating circumstances, but only unilaterally emphasized the defendant's criminal circumstances against his will, which obviously has strong subjective factors and failed to punish the defendant leniently, which is inconsistent with the law.
Fourth, according to the legal provisions and judicial interpretation of China's criminal trial, the judicial concept of "combining leniency with severity" should be applied to this case, and the defendant should be given a lenient punishment:
1. Article 5 of the Criminal Law stipulates that "the severity of punishment should be commensurate with the crimes committed and the criminal responsibilities assumed by criminals".
Specifically, what kind of punishment the defendant should be sentenced to should be based on the type of crime, social harmfulness, subjective malignancy and personal danger. At the same time, it should be fully investigated whether the defendant has surrendered himself, made meritorious service, attempted or stopped crime and other statutory sentencing circumstances, focusing on whether the defendant is a first-time offender or an occasional offender, whether he has pleaded guilty and repented, whether he actively compensated the victim for losses, and the possibility of committing crimes again.
2. According to the Supreme People's Court's Opinions on Carrying out the Criminal Policy of Tempering Justice with Leniency and China's judicial practice, the defender believes that the defendant Yao Jiaxin does not have the conditions to be sentenced to death. "Several Opinions" 29. It puts forward clear standards for the application of the death penalty, that is, it is necessary to accurately understand and strictly implement the policy of "retaining the death penalty, strictly controlling and carefully applying the death penalty". It is necessary to strictly control the application of the death penalty according to law, unify the judgment standards of death penalty cases, and ensure that the death penalty is only applicable to a very small number of criminals with extremely serious crimes. The evidence of conviction or sentencing in a specific case to be sentenced to death must be true and sufficient, and a unique conclusion must be drawn. The crime is extremely serious, but as long as it can not be executed immediately according to law, the death penalty should not be sentenced to immediate execution.
according to the provisions of several opinions, only a few criminals who committed extremely serious crimes were sentenced to death. At the same time, "Several Opinions" also made it clear that it is necessary to strictly control the application of the death penalty according to law and unify the judgment standards of death penalty cases. In China, not all cases of intentional homicide are sentenced to death.
The judicial concept of "combining leniency with severity" takes humanism as the leading ideology, and pays full attention to democracy and human rights. At present, the role of punishment has changed from punishment and revenge to education and probation. Therefore, the judicial concept of "combining leniency with severity" not only protects the interests of victims, but also protects the rights and interests of defendants, and achieves social harmony by balancing the relationships between people, people and society, and people and countries. In this case, the defendant Yao Jiaxin has many mitigating circumstances, and the defendant does not meet the conditions of being sentenced to death in terms of "subjective viciousness", "cruel means", "bad circumstances", "serious consequences" and "personal danger", and does not meet the requirements of being sentenced to death.