In Xining, Qinghai, two male technical students used their mobile phones and WeChat to encourage each other to have a relationship with another female classmate after having dinner and drinking at a friend's house. After one succeeded, the other failed because of the woman's resistance. Afterwards, the two each compensated the victim 10,000 yuan and obtained forgiveness. The court believes that there are ** circumstances but none of them have a sentence of more than 10 years, why is this?
*: Red Star News, Judgment Documents).
Li, a 19-year-old man, and Dong, an 18-year-old man, are both students at a technical school. On the afternoon of April 16 this year, the two and six female classmates, including Zhu and Lei, went to a playground to play until 0:00 a.m. the next day.
At about 1 o'clock in the morning, everyone was still unsatisfied, and they made an appointment through WeChat to go to Lei's community together to continue to eat and drink.
After the six of them were separated for 1 hour, they met again at Lei's house and drank a lot of alcohol. At about 4 o'clock in the morning, Zhu was drunk due to a large amount of drinking, and went to the second bedroom of Lei's house to rest, while the rest continued to drink in the living room.
Seeing that Zhu was drunk alone and entered the second bedroom to rest, Li had bad intentions, and because he didn't want to alarm others, he sent "Don't panic, what are you afraid of, you're done, your pants are off, and then you finish getting me on it, hurry up, now" and other messages to Dong, and encouraged the other party to go to the room first and forcibly have a relationship with the drunk Zhu. and made it clear that he would also go to the room and forcibly violate Zhu later.
Dong agreed and entered the room first, and then he ignored Zhu's resistance and forced his actions. After Dong succeeded and left the room, Li pushed the door into the room and tried to force it, but failed because Zhu resisted.
Afterwards, Zhu called the police for help on the spot. At about 5 o'clock in the morning, the two stayed at the scene and waited for the public security organs to arrive at the scene to deal with it, knowing that Zhu had called the police, and after the incident, the two truthfully confessed the facts of the crime and pleaded guilty and accepted punishment.
Afterwards, the parents of Li and Dong respectively compensated Zhu 10,000 yuan for the opportunity to get a lighter punishment for their respective sons, and obtained understanding.
After the incident, Dong defended that the two did not have common intent and did not constitute a ** circumstance;Li also believes that it does not constitute **, and also claims that he voluntarily gave up the crime, that the crime was suspended, and that the punishment should be reduced.
However, the procuratorate insisted that the two had the intention of jointly violating Zhu, which constituted a ** circumstance, and Li was not suspended but attempted.
1. So is Li an attempt to commit a crime, or is the crime suspended?
Attempt to commit a crime refers to the circumstances of the crime in which the perpetrator "wants but is unable to";Suspension of a crime refers to a situation in which the perpetrator voluntarily abandons the crime or stops the crime through actual actions for reasons such as fear of punishment or the discovery of conscience, that is, the perpetrator is "able but not wanting".
Attention!The Sentencing Guiding Opinions clearly stipulate that the base sentence for attempted crime and suspension of crime may be reduced by up to % respectively.
In other words, because the subjective malice of the suspension of the crime is smaller, the punishment can be more severe. That's why Li emphasized that the crime was suspended.
Specifically, in this case, the procuratorate has determined that Li failed to succeed because of Zhu's resistance, that is, he did not give up voluntarily, so it was an attempt.
2. Both of them constituted a **crime and had ** circumstances.
The Criminal Law clearly stipulates that ** crime refers to the criminal act of the perpetrator forcibly having relations with a woman against her will. And the crime is committed by act, whether it is completed or not, it constitutes this crime.
The Criminal Law also stipulates that where two or more persons have the same intention to be the same victim, it is a crime and shall be sentenced to more than 10 years.
Specifically, in this case, the WeChat records of the two can prove that the two subjectively had the intention of jointly infringing on Zhu, and objectively the two were also opposite.
Zhu carried out the ** act, so the two had ** circumstances.
3. The court found that the two had multiple mitigating or mitigating circumstances.
First, the two clearly knew that Zhu had called the police, but they still stayed at the scene and waited for the public security organs to arrive at the scene to deal with it, and they also truthfully confessed after arriving at the case, and they surrendered
Second, the two pleaded guilty and accepted punishment after being brought into the case, and according to the sentencing guidance, both of them may have their base sentence reduced by up to 15%;
Third, the fact that the two of them each compensated the victim for economic losses and obtained forgiveness is also one of the mitigating or mitigating circumstances.
Fourth, Li's attempt to commit a crime can be commuted.
To sum up, after trial, the court of first instance found that both of them constituted a crime with ** circumstances, but decided to reduce and give them a lighter punishment, so they sentenced Dong and Li to 6 years and 5 years and 6 months in prison respectively.
After the first-instance judgment was announced, the two still believed that it did not constitute ** and appealed, but the court of second instance held that Li's status and role in this case were basically the same as Dong's, and it was not appropriate to distinguish between the principal and accessory offenders, and there was an intention to jointly infringe on Zhu, which was **. That is, the court of second instance decided to uphold the original judgment.
Some netizens were puzzled and said that they couldn't understand why Zhu wanted to forgive these two peopleIs it for the 20,000 yuan in compensation?What do you think about this?
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