Foreword:
Sometimes, although there are problems in some cases, you know from your own experience that the judge will not follow your defense. At this point, it doesn't seem to make sense, because you know that the court won't do what you say, so why should you defend it?
Actually, there is still a lot of significance at this time. Because although the judge did not do what we said, there is undoubtedly a lot of pressure on your arguments, and this pressure restricts the judge, the prosecutor, and they know in their hearts what the case should be. This pressure is a restraining force that can restrain judges from trying to return to a rational perspective.
This case is like this, an incident that happened many years ago and was later brought up. At that time, it was out of the help of a friend, because of a dispute between relatives, it is suspected that the defendant accidentally injured a friend's relative. The person who was injured by mistake also had his own actions of hurting himself (hitting the ground with his head). Later, the victim was paralyzed due to a head injury.
The victim's family did not sue the defendant for intentional injury at first, and always believed that it was an accidental injury between friends to help, and that all parties were at fault. However, it may be because of the excessive cost in the later stage, and the defendant failed to ask for money and reported the case, and the public security also accepted it.
The problems in this case are: first, the age is long, the situation at that time is no longer easy to ascertain, and it is difficult to make the evidence credible and sufficient; The second is that it was caused by a dispute between relatives at that time, and it was caused by the help of friends.
But after all, the victim's injuries were more serious, reaching serious injuries. Therefore, it seems unlikely that the court will acquit you.
However, the purpose of such a defense is to see if it can lead to reconciliation and understanding between the parties, and if an agreement can be reached on economic compensation, then the criminal result can be striking. After all, this is not a typical criminal case. This was, after all, caused by a family dispute.
Apologetics
Respectpresiding judges and people's assessors
Accepting Zhang Xiangwu's entrustment, the lawyer served as his defender and the attached civil litigation appeared in court to participate in the litigation, and hereby expresses the following defense and opinions on the facts and legal issues related to this case, and the collegial panel is requested to consider it:
Part I, defence opinion on conviction
oneThe facts of this case are unclear and the evidence is insufficient, so it cannot be provedZhang XiangwuThere is intentional injuryZhang Lingsenact and intentionallyTaiyuan defense lawyer
The case occurred on 7 August 2018, but the victim reported the incident on 12 November 2019. It's been a year and three months since the incident. The site of the incident, Yixin Park, was demolished around August 2019 due to the international ** fireworks festival held in Qingxu County, and the scene no longer exists, and the victim chose to call the police after the physical evidence and monitoring ** disappeared. This leads to:
(1) Presentof witnesses to what happenedofThe basic facts are inconsistentNo, you can'tProof there isZhang XiangwuDamageZhang Lingsenacts
First of all, there are a total of five witness testimonies in the file, namely Tong Yuewei, Guo Qi, Zhang Lingyu, Ji Meili, and Bai Jingliang. Among the five people, Tong Yuewei and Bai Jingliang stated that they did not see Zhang Xiangwu hit Zhang Lingsen with a stone; Ji Meili stated that the three of them fell into the grass, and the man with glasses snatched the stone from Zhang Lingsen's hand and smashed it on Zhang Lingsen's head; Zhang Lingyu stated in court that it was Bai Jingliang and Zhang Xiangwu who pushed Zhang Lingsen down in the grass, and then they both stood up, Zhang Lingsen and Zhang Xiangwu stood facing each other, and then Zhang Xiangwu smashed Zhang Lingsen's head with his right hand; Guo Qi stated that Zhang Lingsen and Tong Yuewei had a fight, and the people who came with Tong Yuewei went to pull the fight, and when they pulled, they and one of them hit Zhang Lingsen on the head with a stone.
Second, according to the witness testimony in the file, the time of the incident stated in the interrogation records of Tong Yuewei, Zhang Lingyu, and Guo Qi was around 3 p.m. on August 7, 2018; Ji Meimei's interrogation record stated that the incident occurred at around 5 p.m. in 2018; Bai Jingliang's interrogation record stated that the incident occurred at about 17:00 on August 7, 2018; Zhang Xiangwu's interrogation record stated that the incident occurred at about 18:00 on August 7, 2018.
It can be seen that the three people who witnessed the crime were completely inconsistent in their statements of a fact, which proves that Zhang Xiangwu's beating of Zhang Lingsen did not happen, otherwise the testimony of all parties could not have been so different.
The prosecution stated that it was impossible for the witnesses to be consistent. There is some truth to this, because witnesses who witnessed an event may be from different angles, so it is impossible for the statements to be completely consistent. However, after all, there is only one fact, and it is impossible for a witness who witnesses the fact to have a completely different statement of the basic content of the facts, and if he does not agree with this point, it is to fundamentally overturn the evidentiary effect and probative role of the witness, and to deny the provisions of the Criminal Procedure Law on evidence.
(2) ProofZhang XiangwuWitnesses who have committed harmful actsrespectivelyYesZhang LingsenofSisters, sons, lovers, all withZhang LingsenYesSomeone who has a great relationship
The first paragraph of Article 109 of the Supreme People's Court's Interpretation of the Criminal Procedure Law of the People's Republic of China provides: The following evidence shall be used cautiously, and may be accepted if there is other evidence corroborating it:
Paragraph 2 (2) stipulates that testimony in favor of the defendant given by a witness who has a family relationship or other close relationship with the defendant, or testimony against the defendant by a witness who has a conflict of interest with the defendant.
In this case, the witnesses who stated that Zhang Xiangwu injured Zhang Lingsen were Zhang Lingsen's close relatives and close lovers, and they both had conflicts of interest with Zhang Xiangwu; According to the law, their testimony can only be corroborated if there is other evidence to corroborate it. However, in this case, there is no other evidence to prove that Zhang Xiangwu beat Zhang Lingsen, that is to say, there is no other evidence to corroborate, so the testimony of the three people cannot be used as evidence to determine the facts of the case, nor can it be used as evidence to determine Zhang Xiangwu's guilt.
(3) NatureRegularity canProofZhang XiangwuDidn't hitZhang Lingsen
According to the court investigation, according to the testimony of Zhang Lingyu and others, and according to the location of Zhang Lingsen's injury, it can be seen that if the injury occurred, it was also Zhang Xiangwu who hit Zhang Lingsen in the right temporal part of his brain with his right hand while standing facing each other; The temporal part of the brain, including the junction of the temporal bone and the parietal bone, is commonly known as the temple, which is located on the side of the brain.
During the trial, the defender made a demonstration in court, which shows that it is impossible to have such a situation in reality, that is, in the case of standing face to face, one party can reach the temple of the right head of the other party by holding the stone with his right hand. This objectively impossible thing is a "law of nature". Moreover, in the process of demonstration, Zhang Lingyu naturally made the action of hitting the left side of the opponent's head with his right hand when the two people were standing facing each other (the record of his interrogation recorded: Zhang Xiangwu picked up the stone and smashed it on the left side of Zhang Lingsen's head), and the victim's injured part was on the right side of the head. Thus, it can also be shown that the testimony of the three people that Zhang Xiangwu beat Zhang Lingsen is false and untenable because it contradicts the laws of nature, that is, objective facts.
II. II. IINo, you can'tExclusionsZhang LingsenThe wound isZhang XiangwuSelf-inflicted possibility
According to the testimonies of all parties, it can be seen that after Zhang Lingsen walked out of Yixin Park, he hit his head on the concrete floor many times. The details are as follows: Guo Qi stated: "Later, my father hit the ground with his head"; Tong Yuewei said: "Zhang Lingsen didn't go, kowtowed to Zhang Xiangwu a few times"; Zhang Lingyu stated: "Zhang Lingsen knelt down and kowtowed three times at that time"; Bai Jingliang stated: "After leaving Yixin Park, Brother Zhang Lingyu knelt in front of Tong Yuewei and kowtowed a few times"; Ji Meili stated: "In the end, Zhang Lingsen knelt down and kowtowed to them".
It can be seen that according to the above testimony, Zhang Lingsen himself hit the ground with his head many times, and this impact, combined with the specific shape of the stone his head touched, is very likely to have injured the temporal parietal bone. According to the expert opinion issued by the forensic doctor, it can be known that Zhang Lingsen suffered a fracture of the temporal parietal bone, so it cannot be ruled out that Zhang Lingsen's injuries were caused by Zhang Lingsen's own head hitting the ground.
Three, cannot be ruled outZhang LingsenIt is the possibility of injury after falling on oneself
According to the statements of all parties, Zhang Lingsen left Yixin Park before 6 p.m. that day, and it was not until noon the next day that Zhang Lingsen was found unconscious and hurriedly sought medical attention. So did something happen between 6 p.m. and noon the next day to injure Zhang Lingsen's head and temporal region?
According to the disability appraisal opinion submitted by the other party during the trial, it can be seen that it was recorded in the medical records of Qingxu County Hospital; In the medical record of China Railway 17th Bureau, China Railway 17th Bureau and China Railway Bureau are also recorded. In this regard, the opposing lawyer explained that it was because the cause of medical insurance was unfounded. Therefore, it cannot be ruled out that Zhang Lingsen fell and injured his head when he was alone with Ji Meili. Because Ji Meili left when she went to Qingxu County Hospital for the first time, she didn't know that there was a fall after Zhang Lingyu took over, so when she was transferred to Shanxi University Hospital, they thought that she was smashed in Yixin Park, and they stated to the hospital that she was injured and suffered a brain injury. But later, when he finished from Shanxi University Hospital, Zhang Lingyu learned from Ji Meili that it was caused by a fall, so when he was in the 17th Bureau Hospital of China Railway, it was changed to a fall injury, and this was also the reason when he arrived at Qingxu Hospital.
In addition, there is other evidence that Zhang Lingsen was injured after he fell after leaving Pleasant Heart Park. That is, after the incident, Zhang Lingsen just walked out of Yixin Park and kowtowed a few times on the ground, and also wandered on the street, and for about 40 minutes, he also wandered to the place where Zhang Xiangwu, Bai Jingliang, Luo Hongyong and others ate barbecue to ask Tong Yuewei's whereabouts. You must know that according to the diagnosis of Shanxi University Hospital, Zhang Lingsen's injury is a skull fracture, just imagine a person with a skull fracture, and as Ji Meili and Zhang Lingyu said, how can a person who has a headache and vomit still kowtow on the ground a few times, and then wander on the street for a long time. At this time, it should be 120 first aid, and it is good to be able to endure the headache and nausea to return to the residence, and I will definitely not go to the ground to kowtow to increase the head injury, and go shopping for a long time.
Part II, about sentencingDefenseOpinions
oneZhang XiangwuConstitutes voluntary surrender
China's Criminal Law stipulates that a person who voluntarily surrenders after committing a crime and truthfully confesses his or her crime constitutes voluntary surrender.
Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service stipulates that voluntary surrender refers to the voluntary and direct surrender to the public security organs, people's procuratorates, or people's courts when the facts of the crime or the criminal suspect have not been discovered by the judicial organs, or when the facts of the crime or the criminal suspect have not been discovered by the judicial organs, or when they have been discovered, the criminal suspect has not yet received interrogation or been subjected to compulsory measures.
According to the provisions of Chapter VI (Compulsory Measures) of the Criminal Procedure Law of the People's Republic of China, compulsory measures include custodial summons, detention, arrest, residential surveillance, release on bail pending further investigation, etc., but in this case, Zhang Xiangwu went to the case-handling unit to receive the questioning after receiving the case-handling department, and was not subjected to compulsory measures such as custodial summons, and truthfully confessed the entire course of the incident.
Therefore, Zhang Xiangwu constituted voluntary surrender in accordance with the above legal provisions.
II. II. IIZhang LingsenItself is at fault
According to the court investigation, it was known that this was a family conflict, but Zhang Lingsen escalated the dispute, and he took out a stone and began to smash people. And Zhang Xiangwu, Bai Jingliang and others saw the stone, in order to avoid Tong Yuewei and others being smashed, they went up to pull the frame and snatched the stone in Zhang Lingsen's hand. Therefore, Zhang Lingsen himself was at fault for aggravating the development of the situation.
ThreeZhang XiangwuActively assist after the incidentZhang LingsenConductedand bailouts
According to the trial investigation, after the incident, Zhang Xiangwu actively helped Zhang Lingyu to treat Zhang Lingsen, not only running before and after, but also accompanying Zhang Lingsen in the ward. and contributed as much as 110,000 yuan for its treatment. It was for this reason that the victim's family reported the case in November of the following year.
ThirdsectionAbout** Opinions on Attached Civil Litigation
The other party's claim for compensation has a number of items that do not comply with the laws and regulations of our country, which are described as follows:
oneDisabilityCompensation, living expenses for dependents, and expenses for moral damagesIt doesn't belongCivil litigation attached to criminal casesPhysicalScope of Damages
The Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China clearly stipulates the scope of compensation for personal injuries in civil litigation attached to criminal cases, and the second paragraph of Article 155 of the Supreme People's Court provides:
Where the criminal conduct causes personal injury to the victim, compensation shall be made for reasonable expenses such as medical expenses, nursing expenses, and transportation expenses, as well as the loss of income due to lost work. where the victim's disability is caused, compensation shall also be made for expenses such as the cost of living aids for the disabled; Where the victim's death is caused, compensation shall also be made for funeral expenses and other expenses. ”
According to the provisions of this article, it can be seen that the disability compensation, living expenses of dependents, and mental damages submitted by the attached civil plaintiff are not within the scope of compensation for civil litigation attached to criminal cases as stipulated by the laws of our country, so its claim for these three types of compensation cannot be supported.
II. II. IIAboutNursing fees. each otherIt is completely wrong to argue that the calculation of the cost of care is wrongCut-offTrialAggrieved PartyFailure to provide evidence in accordance with the law to prove the determination of nursing expensesofbasis, and then determine the amount of nursing fees
Article 21 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases provides: "Nursing fees shall be determined on the basis of the income status of the nursing staff, the number of nursing personnel, and the duration of nursing care.
Where nursing staff have income, it is calculated with reference to the provisions on lost work pay; Where nursing staff have no income or employ nursing staff, it is calculated with reference to the labor remuneration standards for local nursing workers engaged in the same level of nursing. In principle, there is one nursing staff, but where the medical establishment or evaluation body has a clear opinion, the number of nursing personnel may be determined by reference.
The period of care shall be calculated until the victim regains the ability to take care of himself/herself. Where the victim is unable to regain his or her ability to take care of himself or herself due to disability, a reasonable period of care may be determined on the basis of factors such as his or her age and health condition, but not more than 20 years.
The level of care for the victim after being determined to be disabled shall be based on the degree of dependence on care and the preparation of disability assistive devices. ”
According to the above provisions, it can be seen that the nursing care fee is divided into nursing care before the disability determination date and nursing care after the disability determination date.
(1) VictimsSubmittedShanxiWan HengJusticeThe "JusticeIdentificationOpinionsBookwillThe fixed date of disability is determinedJuly 15, 2020NamelyThe date on which the opinion was issued).Violationof the provisions of our country's laws
According to the court investigation, it can be seen that the case occurred on August 7, 2018, and the certificate was issued on July 15, 2020, with a gap of nearly two years.
According to the provisions of the "Classification of the Degree of Disability Caused by Human Injury" issued by the three departments of the two hospitals, the timing of the disability level appraisal is that the appraisal should be carried out after the primary injury and its related complications are terminated or the clinical effect is stable.
It can be seen that the date of disability should be determined at the time of "after the end of the complication ** or the stabilization of the clinical ** effect". It should be noted that the end is not the same as the end, he means that all the means have ended, and there will be no other**means that can promote the improvement of the condition. That is, all the best means have been exhausted. In reality, the time for this disability assessment is generally determined three months after the injury.
In this case, Zhang Lingsen was operated on by Shanxi University Hospital, where Zhang Lingsen underwent surgery**, and was transferred to China Railway 17th Bureau Hospital on September 3, 2018 for ***, and ended on November 12, 2018, and transferred to Qingxu County Hospital on the same day to continue *** until April 5, 2019.
Based on the above analysis, it can be seen that the reasonable time for disability level appraisal is generally three months after the injury in reality, and in this case, it should be November 12, 2018, which is the date when the victim left the hospital of China Railway 17th Bureau, indicating that the effective means have been terminated, the condition is stable, and the disability level appraisal can be carried out. Then it is in accordance with the laws of our country to determine the date of the disability to this day.
However, the appraisal opinion submitted by the defendant set the date of determination of disability as July 15, 2020, which obviously violated the principle of determining the date of disability under the above legal provisions. Imagine that if the date of disability is established, then the date of disability becomes the date that the victim can determine at will, because he can do the appraisal at any time. This is clearly not in accordance with the law.
(2) The injured partyNopeAccording to lawSubmitYesProofThe amount of the nursing feeevidence
According to the above legal provisions, if the nursing care is carried out by specialized nursing staff, i.e., nursing workers, then the cost of calculating nursing fees is based on the "calculation of the labor remuneration standard for local nursing workers engaged in the same level of nursing", and the victim is cared for by specialized people, but the victim has not adduced evidence to prove the labor remuneration standard of nursing workers engaged in the same level of nursing care in Qingxu County. Instead, receipts for the so-called nursing expenses were adduced. However, according to Zhang Xiangwu's statement, it can be seen that the receipts for nursing expenses, especially the receipts signed by Wang Jianwen, were false receipts issued at the instigation of Tong Yuewei, and these so-called nursing expenses did not actually occur. The actual situation is that Wang Jianwen once worked for Tong Yuewei, Tong Yuewei owed Wang Jianwen wages for a long time, and Tong Yuewei forced Wang Jianwen to issue these untrue receipts for nursing expenses on the condition of giving Wang Jianwen's salary.
Therefore, the victim did not prove in accordance with the law the basis for calculating the amount of nursing care expenses before the determination of disability. It is not possible to determine the cost of care before the date of disability.
(3) The date of disabilityAfterNursing fees. Nor can it be known for sure
According to the provisions of the Supreme People's Court, "the level of care for the victim after the determination of disability shall be determined according to the degree of dependence on the victim and the preparation of disability assistive devices".
It can be seen that to determine the nursing expenses after the determination of disability, it is necessary to determine the two contents of "degree of nursing dependence" and "level of care" by the appraisal opinion, and only when these two contents are determined can the nursing expenses after the determination of disability be determined.
However, the appraisal opinions submitted by the victim to the court did not contain the appraisal conclusions of these two items, so it was not possible to calculate the cost of post-disability care.
ThreeAboutLost time pay. According to the injured partyIt can be seen that the amount of lost time pay cannot be determined because there is no legal basis for the calculation of lost time pay
Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases provides:
Lost time pay is determined based on the victim's lost time and income.
The lost time is determined on the basis of a certificate issued by the medical institution to which the victim received. Where the victim continues to miss work due to disability due to injury, the time of missing work may be calculated to the day before the date of disability.
If the victim has a regular income, the compensation for lost work shall be calculated on the basis of the actual reduced income. If the victim has no regular income, it is calculated on the basis of his average income in the last three years; Where the victim cannot provide evidence to prove his or her average income in the last three years, it may be calculated by referring to the average wages of employees in the same or similar industry in the previous year at the location of the court where the lawsuit is filed. ”
According to the above legal provisions, the first step is to calculate the time of lost work, and if the victim continues to miss work due to disability caused by injury, the time of missed work is calculated until the day before the date of disability. According to the content statement of the ** person in the section on nursing expenses, it can be seen that the date of the victim Zhang Lingsen's disability should be the end date of his **, that is, November 12, 2018, rather than the date of issuance of the appraisal opinion in this case, that is, July 15, 2020. Therefore, the plaintiff's calculation of lost time, i.e. from the time of injury to July 15, 2020, was wrong.
Secondly, the determination of the amount of the victim is not determined in accordance with the law.
The victim presented evidence to the court to prove that Zhang Lingsen had a fixed job (i.e., the Qingxu County Shunjiutong Automobile Transport Team), that is, a fixed income. However, he did not adduce evidence of "lost income due to lost work" and was therefore unable to determine the specific cost of lost time pay.
The other party calculated the lost work fee according to the standard of 150 yuan per day, and the standard of 150 yuan has no legal basis.
FourAboutNutrition fees. VictimsThere is no legal basis for the claim of nutrition feesIt should not be supported
Article 24 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases stipulates that: "Nutrition expenses shall be determined according to the disability of the victim with reference to the opinions of medical institutions. ”
According to this law, it can be seen that the cost of nutrition must be determined by medical advice. However, in the medical records submitted by the victim in this case, there was no medical advice stating that nutrition should be strengthened. Therefore, there is no legal basis for the nutrition fee claimed by the victim, regardless of how it is calculated.
Five・About transportation expenses
Article 22 of the Supreme People's Court's Interpretation stipulates that transportation expenses shall be calculated based on the actual expenses incurred by the victim and his or her necessary escorts for medical treatment or hospital transfer**. Transportation expenses shall be based on official bills; The relevant credentials shall be consistent with the location, time, number of people, and number of times of medical treatment.
According to the investigation of the trial, it can be seen that the other party did not provide the real transportation bill, let alone match the location, time and number of people who received medical treatment.
In summary, the collegial panel is requested to consider it.
Defender and Attached People: Liu Yunfei.
July 2020.
Postscript:
In the end, the parties reached a settlement agreement, because with the settlement agreement, the court took into account the actual situation and sentenced the parties to a satisfactory sentence.
This reminds us that in cases such as civil disputes, which often have antecedents and consequences, and often both parties have been at fault with each other before, so if a settlement agreement can be reached, then a minimum sentence such as a suspended sentence may be obtained.
However, in such cases, there is also a need for a defense, that is, through the defense, a pressure is formed on the victim and his relatives, and this pressure helps the other party to reach concessions. Otherwise, the other party may put forward excessively high conditions for settlement.
At the same time, this type of defense also helps the judge to put pressure on the other side to reach a settlement agreement in the case.