Author: Beijing Yingtai Law Firm
[Case Playback].
At about 23:00 on July 8, 2021, the defendant Zhu Moumou was drunk and drove a Su M 6 minibus without a license, and when he drove from south to north along Jingjiang City Station Road to the intersection with Sanjiang Road, he was investigated by the police on duty for drunk driving, and in order to avoid inspection, after fleeing the scene by detour, he drove from west to east along Sanjiang Road to the intersection of Sanjiang Road and Renmin Road, and was stopped by the police on duty using police cars and reflective cones. Defendant Zhu XX refused to get out of the car when the civil warning intentionally stopped for inspection, and saw that police officer Wu XX and auxiliary police officer Xu XX and other people stepped forward to block the vehicle to prevent him from escaping, but still refused to cooperate with the inspection, and reversed the car to flee the scene, and in the process of Wu XX, Xu XX and others leaning into the cab and trying to control the vehicle, the defendant forcibly drove from the narrow gap between the rear of the intercepting police car and the curb to accelerate and flee the scene, causing Wu XX and Xu XX to be dragged by the vehicle and hit the rear of the intercepting police car. After being squeezed by two cars, he fell to the ground, Wu Moumou suffered multiple rib fractures, his left elbow and left calf were injured, and the top of Xu's head was swollen and his right elbow was bruised. According to the forensic evaluation, Wu's left rib fractures 3rd to 7th constituted minor injuries of the second degree, and the contusions on the left elbow and left calf constituted minor injuries. At 1:50 the next day, defendant Zhu XX was sampled for blood. The ethanol content in the blood sample was identified as 1031mg/100ml。
After defendant Zhu XX was brought into the case, he truthfully confessed the facts of the crime described above, and voluntarily pleaded guilty and accepted punishment. In the end, the court found the defendant Zhu Moumou guilty of assaulting a police officer and sentenced him to three years and six months in prison; committed the crime of dangerous driving and was sentenced to two months' detention and a fine of 2,000 yuan. It was decided to enforce the sentence of three years and six months imprisonment and a fine of 2,000 yuan.
YingtaiLawyers on Law].
Paragraph 5 of Article 277 of the Criminal Law of the People's Republic of China stipulates: "Whoever violently attacks a people's police officer who is lawfully performing his duties shall be sentenced to up to three years imprisonment, short-term detention or controlled release; Whoever uses firearms or controlled knives, or uses means such as driving a motor vehicle to hit them, seriously endangering their personal safety, is to be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. According to this provision, attacks on police officers are divided into two grades according to the degree of violence, and two ranges of sentences are allocated, i.e., the sentence for the basic offense and the sentence for the aggravated offense. The defender believes that Zhu's conduct meets the requirements of a basic offense and does not meet the composition of an aggravated offense, and that the public prosecution organ believes that his conduct meets the composition of an aggravated offense and should be severely punished. In this case, the opinion of the public prosecution should be upheld for the following reasons:
1. The determination of the type of circumstances of the crime shall be based on the ordinary understanding and substantive grasp of the provisions of the law. In order to effectively distinguish between the basic offense and the aggravating offense of assaulting a police officer, the legislation has made a detailed description of the aggravating circumstances, on the one hand, it enumerates the mode of conduct, revealing three common types of behavior, namely, the use of firearms, controlled knives, and driving a motor vehicle to collide, and the use of "etc" indicates that other equivalent means are not excluded; On the other hand, it is limited from the perspective of the harmfulness of the act, that is, such an act must reach the level of "serious danger to his personal safety". The two aspects are indispensable to each other. From the above two aspects, in this case, Zhu Moumou had aggravating circumstances.
First of all, from the perspective of the mode of conduct, Zhu's behavior is comparable to the behavior of driving a motor vehicle into a collision. Unlike driving a car directly into the people's police to commit violence, Zhu XX suddenly accelerated and fled from a narrow space that barely accommodated a car when police officer Wu XX and auxiliary police officer Xu XX leaned their bodies into the window of their cab for control. The monitoring ** also reflects that when Zhu Moumou forcibly passed, Wu Moumou and Xu Moumou were directly squeezed and fell to the ground by the vehicle used as a roadblock, so the act of using the obstacle to impact is essentially the same as the direct impact, and the harmful consequences are comparable.
Second, Zhu's conduct objectively seriously endangered the personal safety of the police. To determine whether behavioral violence seriously endangers personal safety, it is necessary to focus on the manner of the behavior and the degree of potential danger in the specific environment. Driving a motor vehicle without a license while drunk already poses a greater threat to public safety, and when encountering inspections, forcibly breaking into the card, the threat to the personal safety of the police has increased dramatically, and what is more serious is that when Zhu XX was speeding up to escape, he first hung Wu XX and Xu XX on the side of the vehicle and dragged it, and then squeezed and collided with the roadblock vehicle, and the behavior has the extreme danger of causing serious injury consequences, and there is an essential difference in the degree of harm between Zhu XX and the violent act as a basic crime. In this case, Wu XX and Xu XX were hit and suffered multiple injuries all over their bodies, of which Wu XX's injuries constituted minor injuries, so considering multiple factors such as the speed of Zhu's driving, the environment at the scene, and the potential danger, it should be determined that the conduct was of a nature that seriously endangered the personal safety of the police in accordance with law.
II. The determination that Zhu XX's conduct is an aggravated offense is in line with the legal principle that the punishment is proportionate to the crime. Article 5 of the Criminal Law of the People's Republic of China stipulates that the severity of the punishment shall be commensurate with the crime committed and the criminal responsibility borne by the criminal. The crime of assaulting police is a new crime added to the "Amendment (11) to the Criminal Law of the People's Republic of China", and the legislature has separated the act of violently attacking police from the crime of obstructing public affairs because the people's police exercise law enforcement power on behalf of the state, shoulder the important duty of protecting people's security and maintaining social stability, and are on the front line of cracking down on illegal crimes, the working environment is relatively complex, and the personal danger they face is greater. Therefore, the newly added crime of assaulting a police officer adjusts the content of the crime, establishes aggravating circumstances, lists several common highly dangerous acts, and allocates a more severe statutory sentence. The legislative language of "serious endangerment" indicates that this circumstance is a specific dangerous offender, and as long as the act seriously endangers personal safety, even if it does not cause actual serious harm, it does not affect the application of the aggravating circumstance. Only by understanding this can the legislative intent of severely punishing highly dangerous acts in violent attacks on police officers be realized, and if the actual consequences are taken as the conditions for application, the perpetrator will face more serious criminal charges such as intentional injury or intentional homicide, and the provisions of this paragraph will lose their independent significance. The defender's argument that "Zhu's conduct did not seriously endanger the lives and safety of the people's police" is a misunderstanding of the aggravating circumstances, inconsistent with the facts of the case, and the court did not accept it.
3. Severely punishing Zhu Moumou's conduct is an inevitable requirement for promoting respect for the law and respecting public morality. Drunk driving is an illegal and criminal act that has long endangered the safety of the public's life and property. The purpose of the traffic police to set up cards late at night to strictly investigate drunk driving is to protect the safety of people's lives and property, safeguard the interests of social public safety, and prevent and reduce the necessary measures to endanger public safety, especially the occurrence of major public safety accidents, from the source, which has been supported and welcomed by the people. The people's police on duty on the streets must not only endure the test of bad weather such as scorching heat and severe cold, but also have the spirit of sacrifice in the face of all kinds of risks and injuries at any time; their law enforcement behavior has won the respect, support, and cooperation of the whole society, but there are still a very small number of criminals who are lucky and violently resist the law, bringing undue risks and challenges to the lives and safety of the people's police. In particular, driving collisions are particularly harmful, often resulting in serious injuries or deaths to the people's police. Judging from the on-site monitoring of this case, Zhu Moumou accelerated his escape, completely disregarding the life, health and safety of the police, with resolute criminal intentions and deep subjective malice. After violating the law, whether or not they can be corrected is a test of citizens' legal literacy and moral integrity; Impulsiveness and willfulness not only do not help, but also put others in danger, and eventually end up with an aggravated punishment. Through this case, we also appeal to the society that while conscientiously studying the Constitution and laws, we should develop good habits of practicing the law, and give more understanding, support and help to the people's police. In the process of building socialist rule of law with Chinese characteristics, everyone is not only a participant, a builder, but also a sharer and beneficiary, and the organic combination of autonomy, rule of law, and rule of ethics can lead to a more harmonious, beautiful, and civilized social environment.
In summary, defendant Zhu XX violently attacked the people's police who were performing their duties in accordance with the law, and his violent methods had seriously endangered the personal safety of the people's police, and his conduct constituted the crime of assaulting the police; Zhu Moumou violated road traffic safety laws and regulations by driving a motor vehicle on the road after being drunk, and his behavior has constituted the crime of dangerous driving and should be punished in accordance with law. Zhu XX committed two crimes, and shall be punished concurrently for several crimes. After Zhu XX is brought into the case, he truthfully confesses his crimes, and may be given a lighter punishment in accordance with law; Voluntarily and truthfully confessing their own crimes, admitting the facts of the crime as charged, and being willing to accept punishment, may be given a lenient disposition in accordance with law. Zhu Moumou had been criminally punished for theft and dangerous driving, so he was given a heavier punishment as appropriate.
YingtaiLawyer reminds].
Where the perpetrator clearly knows that a police officer who is lawfully performing his duties has leaned his body into the driver's cab window, but still suddenly accelerates to crash and flee from the narrow space, causing the police to be hit or squeezed, seriously endangering the personal safety of the police, it is a situation of "using firearms, controlled knives, or driving a motor vehicle to hit and other means that seriously endanger their personal safety" as provided for in paragraph 5 of article 277 of the Criminal Law of the People's Republic of China, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years for the crime of assaulting the police.