Lawyer's character

Chapter 1076, 1077 Response

The court held that in order to seek mental stimulation, the defendants Lu Hongzhe and Song Rongming used violence, coercion and other methods to bully the weak, repeatedly extorted money from multiple victims, and disrupted social order. Their actions constituted the crime of provoking trouble.

The criminal facts charged by the public prosecutor's office were clear, the evidence was reliable and sufficient, and the crime was found guilty. The defense opinions put forward by the two defendants and their defenders are established and shall be adopted.

Accordingly, in accordance with Article 293, Paragraph 1, Item 3, Article 25, Paragraph 1, Article 17, Paragraphs 1 and 3 of the Criminal Law and the "Supreme People's Court's Regulations on Trial of Minors" The provisions of Article 8 of the Interpretation of Several Issues concerning the Specific Application of Laws in Criminal Cases are as follows:

1. The defendant Lu Hongzhe was guilty of picking quarrels and provoking trouble and was sentenced to one year in prison;

2. The defendant Song Rongming was guilty of picking quarrels and provoking trouble and was sentenced to one year in prison;

After the verdict was announced, the two defendants did not appeal and the prosecutorial office did not protest, so the verdict became legally effective.

Although the charges and sentences found by the court were in line with Du Yong's expectations, he was not happy at all. The two defendants were in their prime years, and their future paths in life... It was a pity. But the reality is that there will always be a price to pay for doing the wrong thing.

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Lu Ye's case finally came to trial, and the court held a closed hearing on the case. Lu Ye confessed to the crime...

"The public prosecutor can question the defendant about the criminal facts charged in the indictment." The presiding judge looked at the prosecutor.

"Defendant Lu Ye, how did you know the victim?" The prosecutor had no expression and could not tell the emotions.

The situation in this case is by no means an isolated case, and it is different from ordinary rape cases. The prosecutor has encountered similar cases before. He felt that the defendant was hateful and pitiful. He hated him for wasting his good years. He didn't know that there was still a lot worth doing in life. A matter of hard work; pity his ignorance, a frog at the bottom of a well.

At such an early age, coupled with the courage to go beyond the limits, it may be difficult to avoid this kind of thing. It is difficult to say clearly whose responsibility it is. Maybe these are the green years!

"My friend and I went to the basketball court to play, and she happened to be there, so we got to know each other." Lu Ye replied. His mood was not high, and he looked a little distracted.

He never dreamed that one day he would sit in the dock and face trial.

"After you met each other, through what channels did you usually communicate?" the prosecutor then asked.

"Sometimes I use WeChat, but more often I use QQ." Lu Ye answered.

"When you added friends on QQ, did you see her identity information?" the prosecutor asked, staring at him.

"I can't remember." Lu Ye replied.

"Do you know her identity?" the inspector asked.

"I know, I knew it when I met her." Lu Ye answered all questions.

"What is the extent of the relationship between you?" the prosecutor changed the question.

"Everything that was supposed to happen happened." Lu Ye said with his head lowered.

"Presiding judge, we have finished asking questions." The prosecutor looked towards the trial seat.

"Does defendant Lu Ye's defender need to ask questions to the defendant?" the presiding judge asked.

"I need to ask a question." Du Yong finished speaking and looked at Lu Ye: "Defendant Lu Ye, when did you know the true situation of the victim Yan Xiaxia?"

"After having sex for the third time." Lu Ye answered.

"Have you ever had sex after knowing her true situation?" Du Yong asked.

"It happened once." Lu Ye replied.

"Who proposed it?" Du Yong asked.

"I proposed it at the time, and after she agreed, we went to Home Inn." Lu Ye said.

"Presiding Judge, the defense has finished asking questions." Du Yong asked very few questions. He mainly wanted the judge to know the exact time when the defendant "knowingly" knew the true situation of the victim.

…

"The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate begins. The court debate mainly focuses on the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts. The prosecutor will speak first." The presiding judge said.

"Presiding Judge, Judge: The prosecutor believes that Lu Ye met the victim Yan Xiaxia at the stadium, and it is impossible not to know Yan Xixia's true identity; moreover, Lu Ye also communicated with the victim through QQ chat, and the victim's QQ profile showed that From this, it can be seen that Lu Ye should have known about the victim's situation before he had multiple relationships with the victim.

Therefore, we believe that the defendant Lu Ye still had a relationship with the victim despite knowing his true age, and his behavior constituted the crime of rape. We recommend that he be severely punished and sentenced to ten years in prison. complete. "

After the prosecutor finished speaking, Lu Ye's eyes were full of panic in the defendant's seat. Ten years! During his time in the detention center, he had already experienced the feeling of losing his freedom. He did not think he could bear a ten-year sentence.

“The defendant will now defend himself,” the presiding judge said.

"Judge, I admit my mistake. I didn't force Yan Xiaxia. We really got a room because we were in love. I didn't force her. I really didn't force her..." Lu Ye looked at the presiding judge, tears streaming down his face. , eyes full of pleading.

"The defendant's defender expressed his defense opinion." Perhaps because he had seen too much, the presiding judge did not respond at all to Lu Ye's plea.

"Presiding Judge, Judge: The defender does not object to the charges that the prosecutor charged against the defendant, but does object to the point in time when the prosecutor determined that the defendant knew the actual age of the victim.

Judging from the available evidence, the evidence provided by the prosecutor can only prove that the defendant Lu Ye did know the actual situation of the victim when he had sex with the victim for the fourth time.

When he first met the victim and had relations with the victim for the first, second, and third time, the information about the victim that Lu Ye had included:

1. The age of the victim. According to common sense, the victim was in his prime. The actual situation is difficult to estimate, and it may be greater or less. But this does not mean that the defendant Lu Ye knew the true situation of the victim Yan Xiaxia. It can only be a conjecture and a conjecture.

2. The defendant Lu Ye added the victim Yan Xiaxia as a QQ friend and engaged in chat exchanges. The victim’s QQ profile will show his age. According to ordinary people’s common sense, most netizens will check each other’s QQ profile information when chatting, but there are also The possibility of not checking is not ruled out. In addition, the age filled in the QQ personal information may or may not be true. The above age has not been certified, has low credibility, and cannot be used as a basis for judging cases.

Therefore, the existing evidence in the case cannot prove that Lu Ye did know the true situation of the victim when he had sexual relations with the victim for the first three times.

The defendant had X relationship with the victim with the consent of both parties, and after knowing the true situation of the victim, the two parties only had one relationship, and it occurred with the consent of both parties. The social harm is different from that of A common rape case.

In view of the fact that the defendant voluntarily confessed in court and showed remorse, the defender recommended that the defendant be sentenced to three years in prison. complete. "Du Yong expressed his defense opinion.

Three years in prison is the recommended sentence determined by Du Yong after communicating with the defendant's parents, because according to Article 236 of the Criminal Law, a person who constitutes the crime of rape will be sentenced to a fixed-term imprisonment of not less than three years but not more than ten years. The sentence recommended by Du Yong is already the minimum sentence.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“Okay, regarding the defender’s defense, I would like to make the following main points:

First of all, the provisions of paragraph 2 of the Criminal Law on the crime of rape do not require the perpetrator to "knowingly" the other party's true age.

In addition, as an adult and a man with normal cognitive judgment, it is not impossible for the defendant to know the victim's true age, and as long as he is a little cautious and careful, he can fully realize the true situation of the victim.

In addition, the defendant continued to have sex with the victim even after he knew the victim’s true age, which reflected that the defendant ignored the victim’s true situation and held an indifferent attitude towards his behavior during the entire process of interacting with the victim and having sex. Laissez-faire attitude.

Regardless of whether the victim's external characteristics such as speech, behavior, clothing, and daily routine are indeed more adult-like, based on the existing evidence alone, there is no sufficient reason to classify the defendant as an "extremely special exception where it is impossible to determine the victim's true age." situation'.

Therefore, we believe that the defendant already knew the true situation of the victim before he knew the victim and had X relationship, and the defendant should be severely punished for his behavior. complete. ” the prosecutor responded.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

First, Article 14 of the General Provisions of the Criminal Law stipulates that criminal intention refers to the subjective psychological attitude of "knowing that one's behavior will have consequences that are harmful to society, and hoping or allowing such consequences to occur."

In the sub-provisions of the "Criminal Law", for intentional crimes, some provisions explicitly stipulate "knowingly", such as the crime of harboring and shielding; while most provisions do not expressly stipulate "knowingly".

The specific provision of "knowingly" in the sub-provisions is mainly for the purpose of highlighting and emphasizing it. If the sub-provisions do not expressly stipulate "knowing" in the sub-provisions, "knowing" is not required to constitute a crime.

The crime of rape is an intentional crime. Therefore, the provisions of the General Provisions of the Criminal Law on "knowingly" of intentional crimes must also apply to the crime of rape.

Second, the content of ‘knowingly’ should be judged in conjunction with the specific charges of the crimes in the Criminal Law. In the ordinary crime of rape, the offender realizes that his behavior is against the will of the woman, that is, it meets the subjective requirements, and there is no need to know the age of the other party; in a special case like this case, the relationship between the defendant and the victim constitutes the crime of rape, and naturally it is also The defendant is not required to know the victim's true age.

If the perpetrator did have a voluntary sexual relationship with a woman in her prime, and it is indeed impossible for the perpetrator to know the other person's true age, then the perpetrator subjectively lacks reprehensibility, that is, he does not possess the "knowledge of one's own rights" required by criminal intent. If the behavior will produce consequences that are harmful to society, and the subjective psychological attitude of hoping or allowing such consequences to occur, starting from the principle of the unity of subjectivity and objectivity, the perpetrator should not be punished with the crime of rape.

Based on the above analysis, for those who use non-coercive means to have sexual relations with young women, "knowingly knowing" the true age of the victim is a subjective constitutive feature of the crime of rape.

In addition, Article 19 of the "Opinions on Punishing the Crime of Sexual Assault on Minors in accordance with the Law" jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice in 2013 stipulates that if you know or should know that the other party is a dissatisfied person, If a woman commits sexual assault such as sexual intercourse, it should be deemed that the perpetrator "knowingly" knows that the other party is in her prime. This opinion reaffirms that "knowingly" about the victim's true condition is a subjective element of this type of rape crime.

The defender believes that the evidence in a criminal case must not only be objectively true, but also be sufficient to fully prove the objective facts, eliminate all reasonable doubts, and reach a unique conclusion.

The evidence provided by the prosecutor cannot meet this standard. It is just an inference and cannot reasonably explain and eliminate doubts and contradictions. Moreover, QQ personal information is generally not completely true, and the perpetrator may not have checked it. The victim may be in his early years, or may be too old, or It may be too small. It is impossible for the defendant to accurately predict the victim's true age. Therefore, the evidence that the prosecutor accused the defendant of committing the crime four times is insufficient. It cannot be concluded that the defendant knew the victim's true condition when he had sexual relations with the victim four times.

The evidence on file in this case can only prove that the defendant knew the true situation of the victim when the fourth (last) sexual intercourse occurred voluntarily between the two parties. Therefore, the defendant's first three sexual relations with the victim did not constitute the crime of rape. Having sex with the victim four times constitutes the crime of rape, over. "Du Yong responded.

"The prosecutor can continue to respond to the defender's defense opinions," the presiding judge said.

“In response to the defense opinions and response of the defender, the prosecutor expressed the following views:

We believe that the standard for proving a guilty verdict stipulated in the Criminal Procedure Law is that the facts of the case are clear and the evidence is reliable and sufficient. This is the general and highest requirement for fact determination and evidence review.

However, judicial practice experience shows that there can be differences in the degree of proof for different factual elements constituting a crime. It is not necessary to eliminate all reasonable doubts and reach a unique conclusion in order to prove the defendant's guilt.

In particular, for crimes such as D-crime crimes, in practice, the standard of proof of subjective constituent elements is slightly looser than other crimes. This is determined by the particularity of this type of crime, which is also subject to severe punishment. The guiding influence of criminal policy on similar crimes.

In such cases, case fact determination is not a purely scientific verification activity to explore the objective truth, but a process of fact reconstruction and reproduction guided by the pursuit of objective truth and affected by value orientation and value judgment. . complete. ” the prosecutor responded.

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