Dear presiding judge, everyone is a judge.
Anhui Huimin Law Firm accepted the assignment of Yingshang Legal Aid Center and appointed me as the first-instance defender of this case to appear in court to defend the defendant Liu according to law. After accepting the assignment, the defender consulted the case file, met with the defendant, and learned something about the case through court investigation. The defender believes that the defendant Li's behavior does not constitute a crime of affray and should not bear criminal responsibility according to law. Request the court to decide that the defendant Liu does not constitute a crime according to law. The main reasons are as follows:
First, the argument of the facts, the defendant did not participate in the affray.
According to the evidence provided by the public prosecutor and the court investigation just now, the facts of this case are very clear. This case was caused by the defendant Zhu Yin's conflict with Wang Hui. After beating Wang Hui, he asked Zhu to apologize to his friend Wang Hui in order to help Wang Hui vent his anger. Without Zhu's consent, the two sides agreed to fight at the back door of No.1 middle school after school in the evening, which triggered the fight.
Both sides went back to school to find their classmates and friends to prepare for the fight that night. As my client Liu and the defendant are classmates and share a house, Liu must know the news. Later, at his instigation, he and his classmates went to 1 class (1 1) to meet Zhu. On the way back, Zhao Hanqing was afraid of Liu Xiaolian. After school in the evening, Liu returned to his residence, but out of concern for his friends, he went to the public phone near No.1 Middle School and called him to say hello to Ping An. When I received a call from Liu, I arranged for Liu to return to his residence and brought him a machete and a steel pipe (the defender should make it clear here that this machete and steel pipe were brought by Liu He when he checked in a few days ago. Not specially prepared for this fight in Europe) Because Liu is not full 18 years old, his thoughts and meaning are not yet mature. In his view, as long as he doesn't take part in the fight, he has nothing to do with it, and he really can't mean that if other defendants hurt others with the knife he took, he will be identified as the * * * offender in this case. But the last celebration was that when he delivered the knife, the fighting between the two sides had ended and the two sides dispersed separately. The knife he sent didn't play a role in this case. It is also possible to see that his behavior is irrelevant to this case.
Therefore, the defender believes that the defendant does not constitute a crime.
So the defender recognized the defendant.
Second, the legal debate, the defendant does not meet the constitutive requirements of the crime.
As we all know, crime should be composed of harmful behavior, harmful result and the relationship between behavior and result. Only when these three conditions are met at the same time can it constitute a crime. Looking at this case from the perspective of holding a knife, the defender believes that holding a knife does not constitute a harmful act, because theoretically, acts that endanger society include actions and omissions. Since this case has nothing to do with omission, the defender only explains it from the aspect of action. The so-called behavior is simply as follows.
Here, we are all concerned about what is positive behavior and what is prohibited by criminal law. If I say that the attacker hacked at the attacker with a knife, I believe everyone will think that this is a positive behavior and is prohibited by the criminal law. However, I want you to help me think about a question: if the perpetrator goes to the scene between people with a knife, is it a positive behavior, and is it prohibited by the criminal law? Is it a positive behavior to sharpen a knife at home before going to the scene with a knife, which is prohibited by criminal law? Is it a positive behavior to buy a knife in the store before sharpening a knife? Is it prohibited by criminal law? Positive behavior and behaviors prohibited by criminal law are on the way to the store to buy knives before going to the store.
Will there be a question in everyone's mind now, when is it a positive behavior, an act prohibited by criminal law?
In view of this, the defender believes that the law does not prohibit the perpetrator from holding a knife. If the law prohibits him from holding a knife, it is possible that selling and buying a knife also constitutes a crime in social life, so it is very simple, because we can't know what these people will do next. Back to this case, Liu himself can't understand what role the knife he holds will play in the future, and he can't understand whether the knife he holds will cause harm to this case. In fact, the injury result in this case has nothing to do with the knife-wielding behavior. From this, we can think that Liu's knife-wielding behavior is not harmful.
The second point is whether Liu's knife-wielding behavior has produced harmful results.
Defenders don't need to explain this too much, because Liu didn't exist in the whole scene of the affray, and the injury result was completely caused by the actions of several other defendants. In the process of Liu arriving at the scene with a knife, the injury result may have been produced before Liu arrived at the scene with a knife. Although Liu did not participate in or felt sorry for the victim's injury, it is said that this injury result has nothing to do with Liu.
Third, the theory of causality,
Regarding whether there is a causal relationship between Liu's behavior and this case, the defender believes that there is a widely circulated proverb in the legal field that can best explain whether there is a causal relationship between behavior and result, that is, "there must be this result if there is this behavior, and there must be no such result without this behavior." According to this sentence, combined with this case, I would like to ask you to think again. If Serina Liu goes to the scene with a knife, will it definitely hurt the victim? I believe you may think that the result may or may not happen. In other words, Liu's behavior of going to the scene with a knife can't necessarily lead to the result. So this behavior must have this result, which is inconsistent with this sentence.
I want you to reconsider. If Liu hadn't gone to the scene, wouldn't such an injury have happened? I believe the answer must be no, because after Liu arrived at the scene, the result of his injury behavior has been completed, and it will not change or affect the result because he can't go.
Therefore, the defender believes that Liu's behavior has no causal relationship with the outcome of this case, and Liu should not bear legal responsibility for the behavior of others.
Third, the debate about the law. Liu is not qualified as the subject of affray.
According to Article 292 of the Criminal Law, whoever gathers people to fight shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance;
Here I would like to ask, what is a ringleader and what is an active participant? It can be said that there is no clear definition in the interpretation of criminal law.
However, according to the Summary of Discussion on Several Issues Concerning the Application of Law in Handling Several Criminal Cases, such as affray, etc. by the Higher People's Court of Jiangsu Province, the ringleaders and active participants are defined.
The ringleader of affray: refers to the organizer, planner, instigator and commander of affray;
Active participants refer to people who play a major role in affray or who directly die or hurt others in affray.
From the definition made in this summary, we can analyze Liu's role in this case, because the organizer, planner, organizer and commander of this case. Judging from the evidence, this case was not caused by Liu. All the participants were not called by Liu, so they can't be regarded as the ringleaders.
As for whether Liu is an active participant, the defender believes that it should be seen whether he plays a major role in gathering people to fight. As for what is the main role, the defender believes that its main role depends on the influence of the participants' behavior on the case. The behavior of these people will lead to cases and harmful consequences, and directly accelerate the harm of the perpetrators and the number of perpetrators.
From this point of view, it may be proved that Liu is not an active participant in this case, because Liu Xiao's actions can not affect the progress of this case at all, hurting the consequences and worrying about the number of victims. In other words, this case will have its present consequences with his behavior, and the consequences of this case will not be affected by it without his behavior. Therefore, Liu's behavior should not be regarded as an active participant.
To say the least, even if the prosecution determines that Liu's behavior is related to this case, then he can only be regarded as an ordinary participant.
According to Article 292 of the Criminal Law, the crime of affray only punishes ringleaders and active participants, and is not regarded as a crime with ordinary participants. Therefore, the defendant Liu should not be considered as the crime of affray.
4. The evidence of Liu's illegal procedure collected by public security organs cannot be used as evidence.
According to the Criminal Procedure Law, the Law on the Protection of Minors, the Procedural Provisions of Public Security Organs for Handling Criminal Cases and the Provisions of Procuratorates for Handling Criminal Cases of Minors, it is clearly mentioned that when interrogating juvenile criminal suspects, legal representatives shall be notified to be present and their rights and obligations shall be informed according to law.
From the evidence in this case, we can see that when the public security organ interrogated Liu, it made an interrogation record without notifying his legal representative to be present according to law. According to the law, the confession of the defendant Liu in the transcript cannot be used as a legal basis for ascertaining the facts.
Fifth, the debate between reason and reason.
Liu, the presiding judge, the judge and the defendant in this case, is a child born in the countryside and his family is relatively poor. He studied hard by himself and was admitted to Yingshang County Key No.1 Middle School. Now Liu is a senior two student. In another year, he will take the college entrance examination, and it is time to show his personal ambition. It is also because of the bad factors of society and his immaturity of body and mind and his ignorance of society in the process of accelerating to adulthood. Although the defender has always insisted that the defendant does not constitute a crime, the judicial power is decided by the judge. In this regard, the defender hopes that the court can make a judgment in favor of Liu Kaoguo from the standpoint of protecting, educating, probation and saving minors before making a judgment according to law.