Foreword
The crime of picking quarrels and provoking troubles is considered a pocket crime, and many acts can be dealt with as picking quarrels and provoking troubles if they do not constitute intentional harm, such as simple fighting; In this way, it feels like a lot of acts that are not sinful can now constitute crimes. The principle of legality no longer seems to be a fundamental principle. Everyone has broken through the limitations of the principle of legality.
How to defend whether it constitutes an act of picking quarrels and provoking trouble? This case is one such case where a fight was defined as picking quarrels and provoking trouble. In addition, in terms of identification, the law is very clear that the loss of two teeth can constitute a minor injury, but in this case, it is not a loss, it is loose, and then the doctor will remove it at a later stage, but now even if it is raised in court, the judge still does not accept it.
So, you can see how fragile the law is. The reason for this is that the case is determined to be evil-related, and once the law is applied to evil, it will be shaken.
Apologetics
RespectPresiding Judge and People's Assessor:
Accepting the entrustment of Wang Chenhong and his wife, the lawyer served as his defender and participated in the litigation with the attached civil litigation, and hereby expresses the following defense opinions on the relevant facts and legal issues in this case, please consider it:
AboutCriminal part
oneThis case does not constitute the crime of picking quarrels and provoking trouble
oneWang ChenhongThe fight with Liu Yanming and others does not constitute the crime of picking quarrels and provoking trouble
Article 293 of the Criminal Law [Crime of Picking Quarrels and Provoking Trouble]: Whoever commits any of the following acts of picking quarrels and provoking troubles, disrupting social order, shall be sentenced to up to five years imprisonment, short-term detention or controlled release:
1) Arbitrarily assaulting others, where the circumstances are heinous;
2) Chasing, intercepting, insulting, or intimidating others, where the circumstances are heinous;
3) Forcibly taking or arbitrarily destroying or occupying public or private property, where the circumstances are serious;
4) Making a commotion in a public place, causing serious disorder in a public place.
Where others are gathered to carry out the conduct in the preceding paragraph multiple times, seriously disrupting social order, a sentence of between 5 and 10 years imprisonment is to be given, and a concurrent fine may be given.
In addition, according to the provisions of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Picking Quarrels and Provoking Troubles", it can be seen that the characteristics of the crime of picking quarrels and provoking troubles are "seeking excitement, venting emotions, and causing trouble out of nothing".
Specifically, the "casual" in "casual assault" refers to "generally means that the reason, object, and method of the assault are obviously abnormal." In other words, when an ordinary person thinks from the point of view of the offender and cannot accept the offender's assault, the assault is arbitrary. From the perpetrator's point of view, casualness means that the perpetrator assaults others without any self-control. (Zhang Mingkai, Criminal Law, p. 1063)".
Therefore, based on the above characteristics of the crime of picking quarrels and provoking troubles, it can be seen that this crime is a crime of disrupting public order, that is, because of this arbitrariness and arbitrariness, this kind of behavior causes such behavior to harm the personal and property safety of unspecified persons, and then is a kind of destruction of public order.
Combined with this case, the second fact alleged by the prosecutor is the fight between Wang Chenhong, Liu Jungui and Liu Yanming. The prosecutor accused Wang Chenhong and others of arbitrarily beating others and arbitrarily destroying property. However, according to the investigation of the trial, it can be seen that the fight between Wang Chenhong and others and Liu Jungui and Liu Yanming was caused by the incident; It was because Jia Xiaoyong's driver accidentally hit Liu Yanming's car when reversing, and then a quarrel occurred, which then evolved and developed into a fight. This kind of incident is common in society, that is, because of a vehicle accident that causes drivers to beat each other. Therefore, according to the above theory of "arbitrary" judgment and the use of the general concept of social cognition, it can be seen that the fight between Wang Chenhong and others and Liu Yanming is common and not abnormal; Therefore, it will not pose a threat to unspecified people, and thus will not cause damage to social and public order.
In the same way, as far as the act of breaking the mobile phone at the scene is concerned, it can be seen that he is not the property of an unspecified person; Rather, it is a logical act based on the circumstances of the incident at the time, and it is an act directed at a specific person.
(b) IfFix the actforThe crime of picking quarrels and provoking trouble, then how to define the act of intentional harmWhat about it
Intentional injury and random assault on others in picking quarrels and provoking troubles may cause physical harm to the other party, so how to distinguish between the two behaviors? Obviously, according to the definition of both in criminal law, intentional injury is directed at a specific person, that is, for a reason; Picking quarrels and provoking troubles, on the other hand, is aimed at unspecific, that is, arbitrary.
According to the facts alleged by the prosecutor in the indictment, it can be seen that there was a reason for the fight between Wang Chenhong and Liu Yanming -- that is, because of the scratching and collision caused by reversing, and this reason is common according to daily life experience and according to the general concept of society, and it is not abnormal.
Therefore, if the act is defined as picking quarrels and provoking troubles, then it must be a violation of the provisions of the Criminal Law, and it must be a confusion between the boundary between the crime of intentional injury and the crime of picking quarrels and provoking troubles and the application of law, which will inevitably have a negative impact on the application of the Criminal Law, and will inevitably become a typical case of "error in the application of law".
(3) Public prosecutorsThe first fact charged also does not constitute the crime of picking quarrels and provoking trouble
The first fact alleged by the prosecutor is that Wang Chenhong entered Cheng Fuxing's office with an axe. This act does not meet any of the provisions of Article 293 of the Criminal Law, that is, there is no assault on anyone, no chasing or intercepting anyone, no forcible demand, no damage to property, and no heckling in public**.
Therefore, the first fact indicted by the public prosecutor is completely inconsistent, or 100%, different from the conduct of the crime of picking quarrels and provoking troubles under the Criminal Law. So in this case, how can the act also be characterized as a criminal act of picking quarrels and provoking trouble?
As mentioned above, if the act is defined as an act of picking quarrels and provoking trouble, then this case can become a typical case and a typical case of arbitrarily expanding the application of the law. It is foreseeable that such a verdict will not stand the test of history.
II. II. IIThis case is about Liu JunguiInjuriesAppraisal opinionYesWrong
According to the injuries recorded in Liu Jungui's medical records on which the appraisal opinion is based, it can be seen that Liu Jungui's dental injuries are traumatically loose, and 11 are absent. ”
According to Article 5 of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of **, and the Ministry of Justice on the "Standards for the Appraisal of the Degree of Human Injury".2.5 Minor injuries j) clause: loss or loss of teeth; alveolar process fracture; Loose teeth of 2 or more or more of 1 tooth.
It can be seen that the third degree of loosening of more than one tooth is a minor injury. In this case, Liu Jungui's two teeth were loose, so according to the express provisions of the above clause, it is obvious that the injuries are minor and not minor.
It can be seen that the "Explanation of the Appraisal Opinions on the Degree of Human Injury of Liu Jungui" issued by the Yangquan Mining Area Public Security Judicial Appraisal Center stated that "according to the interpretation of the "Standards for the Appraisal of the Degree of Human Injury": tooth loss includes the above looseness and cannot be retained. This reason is completely wrong and directly contradicts the express provisions of the "Standards for the Determination of the Degree of Human Injury". Therefore, the note should not be adopted by the court because its content is illegal.
Three, on sentencing
Even if Wang Chenhong's fight with Liu Jungui and others constitutes picking quarrels and provoking trouble, then the prosecutor's sentencing recommendation is also unusually heavy.
According to Article 13 (2) of the "Shanxi Provincial High Court's "Guiding Opinions on Sentencing for Common Crimes" implementation rules, it is stipulated that where one of the following acts of picking quarrels and provoking troubles disrupts social order, the starting sentence is to be determined within the range of one to two years imprisonment: arbitrarily assaulting others, causing one person to be slightly injured or two people slightly injured.
According to this article, it can be seen that the starting sentence and base sentence for Wang Chenhong's sentencing should be one and a half years. In addition:
oneWang ChenhongThere is an act of voluntary surrender
In the "Explanation of the Situation" issued to the court by the Criminal Investigation Brigade of the Xicheng Branch, it was stated that "Wang Chenhong repeatedly confessed that he could only do it himself, and the other criminal suspects were just pulling the rack, and he concealed the truth of the crime." ”
However, according to Wang Chenhong's confession made on September 6, 2019: "Q: On May 8, 2019, who was involved in beating people at the scene of the crime. A: It was chaotic and I don't know who else was beating people. ”
According to the third paragraph of Article 1(2) of the "Supreme People's Court Interpretation on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service", "In addition to truthfully confessing their own crimes, criminal suspects in joint crime cases shall also confess the ...... of the co-offenders known to them”
It can be seen that the law requires that it must be the crime of the co-defendant known to the criminal suspect, and the emphasis here is on the crime of the "known" co-defendant. This means that in a specific case, it should be analyzed and judged on the basis of the specific circumstances whether the criminal suspect knew the crime of the co-defendant.
In this case, Wang Chenhong had truthfully confessed who he had arrived at the scene with. Because it was a sudden fight, there was no discussion in advance, so Wang Chenhong didn't know if the people who went with him were ready to fight. After the fight began, because Wang Chenhong and Liu Yanming mainly beat each other, in the process of beating, according to common sense, experience, and logic, it was difficult for Wang Chenhong to observe the actions of others when he was highly stressed and concentrated. This person who has been in a fight, or even a person who has quarreled, will have this experience. Therefore, from the scientific perspective of epistemology, it is wrong for the case-handling department to simply identify Wang Chenhong's scientific inability to observe the behavior of other people at that time as "concealing the truth of the crime", which is inconsistent with facts and science.
It can be seen from this that Wang Chenhong voluntarily surrendered and truthfully confessed his criminal acts, and had no possibility or legal obligation to confess the criminal acts of his co-defendants that he did not know; Therefore, Wang Chenhong's conduct constituted voluntary surrender.
II. II. IIWang ChenhongVoluntaryPlea of guilt and acceptance of punishment
According to the trial, Wang Chenhong voluntarily pleaded guilty and accepted punishment to the court. ** As recorded in the pre-trial transcript, he truthfully stated the course of the case and stated his actions. His statement is consistent with the statement in the pre-trial transcript. It can be seen that the time for him to admit guilt and accept punishment was very early, which shows that his willingness to admit guilt and accept punishment is true and strong.
ThreeWang ChenhongActively compensate the other party10,000 yuan,Actively treat victims
Wang Chenhong compensated the other party with 10,000 yuan as medical expenses as soon as possible after the incident. Although this fee was made up by three people, it also shows the remorse of the three people.
(4) Specific sentencing
According to the relevant provisions of the "Shanxi Provincial High People's Court's Implementation Rules for Sentencing Recommendations for Common Crimes", it can be seen that: where there are circumstances of voluntary surrender, the declared sentence may be determined below 40% of the base sentence; where there are confessional circumstances, a declared sentence may be determined up to 20% of the base sentence; Where victims are promptly rescued, the base sentence may be reduced by up to 20%.
Wang Chenhong's starting sentence and base sentence should be one and a half years, and in light of the above sentencing results, a sentence should be determined for Wang Chenhong at least one year or so.
AboutThe criminal case is attached to the civil part
In the civil compensation of the plaintiff in the case of a criminal case, a number of items do not comply with the provisions of the law and should not be supported.
1.Nursing expenses, the attached plaintiff should not have nursing expenses. According to the Supreme People's Court's Interpretation on Personal Injury Compensation Cases (the "Interpretation"), nursing expenses will only be paid when the victim is unable to take care of himself, and the attached plaintiff is only injured by a tooth, and there is no situation of whether he or she has the ability to take care of himself, so the nursing expenses of the attached plaintiff should not be supported.
2.Medical expenses, in the trial, the first person found that some of the payment items are not required by the first tooth, so there is reason to believe that there are items that expand the scope of medical treatment and do not belong to the damage caused by this infringement incident, and ask the trial court to verify it;
3.Lost time pay, according to the provisions of the interpretation, if there is a fixed income for lost time pay, it is calculated according to the actual reduced income. During the trial, the attached plaintiff proved that he had a regular income, so he should provide evidence to prove his reduced income, but the other party did not provide evidence to prove it, so his claim for lost time pay should not be supported.
4.According to the provisions of the interpretation, the nutrition fee should be determined according to the doctor's order, and the evidence submitted by the other party does not prove that there is a doctor's order to claim the nutrition fee, so the nutrition fee claimed by the other party should not be supported.
5.According to Article 101 of the Criminal Procedure Law, only material losses are within the scope of compensation in attached civil lawsuits. Accordingly, his claim for compensation should not be upheld.
The court is invited to take into account the above.
Defender, attached civil defendant ** person:
July 2020.
Postscript:
In any case, where the indictment does not conform to the law, it must be defended in order to put pressure on the court and try to squeeze out a better verdict. If you don't fight, then the verdict may be worse, and if you fight, the verdict can only be better.
Crying children have milk to eat, it is such a simple truth, you go to fight for reason, even if your reason is not 100% heard, but they always have a psychological pressure, that is, what you say is reasonable, not so judged is illegal. The psychological pressure of this violation will force them to give a sentence that tends to be reasonable.
It's better to say it than not to say it, and if it is reasonable, it will be even better. In the end, the verdict of the parties was much lower than the maximum sentence recommended by the procuratorate. I'm sure the judges did their best. But under this form of pressure, she can only do this.