Lawyer's character

"I disagree with you on whether Du Jinquan's behavior is a murder. The determination of murder should follow the provisions of Article 20, Paragraph 3 of the Criminal Law, and take 'violent crimes that seriously endanger personal safety' as the basis. standard.

I have no objection to the fact that Du Jinquan’s pushing, kicking and beating behavior at the beginning did not qualify as an ‘assault’. But from the moment he took out the machete from the car and started hitting Sun Kui, I think the nature of his behavior has escalated to a violent crime.

Moreover, Du Jinquan's attack was particularly vicious at the time. The machete he held was a controlled instrument that could easily cause death or injury. Du Jinquan was drinking again at the time. As the situation develops, it is difficult to predict what kind of damage will be caused next. Sun Kui's personal safety Under real, imminent and serious danger.

You just said that Du Jinquan is not sure whether he meant to kill or to injure. This is a characteristic of many murderous acts, but it is not an obstacle to identification. Therefore, I believe that Du Jinquan’s behavior meets the criteria for ‘committing murder’ and should be deemed as ‘committing murder’. "After Fang Yi finished speaking, he looked at the two prosecutors opposite him with firm eyes.

There is a reason why Fang Yi first emphasized that Du Jinquan’s behavior was “committing murder.” According to Article 20, paragraph 3, of the Criminal Law, “committing murder, robbery, rape, kidnapping, and other acts that seriously endanger personal safety are prohibited.” If a person commits a violent crime and takes defensive actions, resulting in casualties or casualties, it does not constitute excessive defense and he will not be held criminally responsible." In judicial practice, this kind of legitimate defense is usually called "special defense."

Fang Yi's purpose is to define Sun Kui's behavior as special defense, and ultimately determine that Sun Kui does not have excessive defense. However, in order to do this, he must first find a supporting point, and Du Jinquan's behavior just fits the "murder" The characteristics provide support for Fang Yi.

"Lawyer Fang, please continue." The senior female prosecutor nodded.

"Second, there is the issue of whether Du Jinquan's infringement is "ongoing".

I personally believe that until Du Jinquan left the scene, his infringement had been in an ongoing state and had not ended. "Fang Yi said.

"I also looked at the paper. After Du Jinquan let go of the machete and Sun Kui grabbed the machete, Du Jinquan's infringement should have ended. He no longer violated Sun Kui. So I think since Sun Kui got the machete, , Du Jinquan's infringement has ended." Cao Xiaoxue took over the words.

"Lawyer Fang, please tell me your reasons." The senior female prosecutor looked at Fang Yidao.

“I disagree with Prosecutor Cao’s opinion.

In my opinion, to judge whether the infringement has ended, we should look at whether the offender has substantially left the scene and whether there is still the possibility of continuing the attack or launching another attack.

After Sun Kui grabbed the machete, Du Jinquan immediately rushed to fight for it. The infringement did not stop when the machete changed hands. Du Jinquan's grabbing of the machete proved that he still had the subjective intention to infringe. Later, Du Jinquan was stabbed by Sun Kui. After the injury, Du Jinquan immediately ran towards the car where the machete was hidden. Sun Kui was now afraid of Du Jinquan's revenge, so an uninterrupted pursuit was in line with the needs of defense.

Sun Kui pursued and slashed twice but missed. Du Jinquan ran away from the car and left the scene. Sun Kui stopped the pursuit. Therefore, when Sun Kui grabbed the machete and counterattacked, Du Jinquan neither gave up the attack nor substantially left the scene, so the infringement cannot be considered to have stopped. The violation did not end until Du Jinquan fled the scene. "Fang Yi said.

"Well, go on," the senior female prosecutor continued.

“Third, regarding whether Sun Kui’s behavior was self-defense.

I believe that Sun Kui’s behavior is legitimate defense, complies with the provisions of Article 20, Paragraph 3 of the Criminal Law, and is special defense. Fang Yi said: "I don't know this. What do you think?" "

According to Cao Xiaoxue's character, she would refute even if Fang Yi didn't ask, so Fang Yi directly asked the two prosecutors opposite for their opinions.

"I think Sun Kui himself suffered less damage, but his defensive behavior caused the death of Du Jinquan. Comparing the injuries of the two, it is obvious that Sun Kui's defensive behavior was excessive defense." Cao Xiaoxue said.

"Lawyer Fang, you said Sun Kui's behavior was special defense. What's the reason?" asked the senior female prosecutor.

"I believe that illegal infringement includes two parts, namely actual harmful behavior and dangerous behavior. Justifiable defense can also be implemented for dangerous behavior.

In this case, the comparison of injuries between Sun Kui and Du Jinquan is indeed inappropriate, but we cannot only look at the actual harmful behavior (the actual injury suffered) and ignore the dangerous behavior.

If the result of actual harmful behavior is used as the criterion for judging legitimate defense, the defender can only wait until the violent crime causes certain harmful consequences before he can carry out defense. This does not meet the defense needs of stopping the crime in a timely manner and preventing the crime from succeeding, and is also inappropriate. It narrows the scope of legitimate defense and this standard is inconsistent with the original intention of the legislation.

In this case, Du Jinquan carried a machete to commit murder, and Sun Kui took defensive actions in the process of snatching the machete, resulting in his death. According to the provisions of Article 20 of the Criminal Law, Sun Kui's behavior should not be regarded as excessive defense, and he should not bear criminal responsibility. In my opinion, whether Sun Kui himself was injured or the severity of his injury has no impact on the determination of legitimate defense. "Fang Yi said.

The two sides went back and forth, and the exchange of opinions lasted for more than an hour. Fang Yi submitted his lawyer's opinions and left the procuratorate. He had done everything he needed to do, and he didn't know whether the case would be transferred to the court.

Cao Xiaoxue said while packing up the documents on the table: "Sister Li, what do you think of this case?"

“My opinion is similar to that of Lawyer Fang. When I looked at the case file yesterday afternoon, I also felt that Sun Kui’s case should not be classified as intentional injury, but should be classified as self-defense.

I have gone to court with this lawyer Fang before, and he is still very capable, not the kind of lawyer who is messy. " said the senior female prosecutor whom Cao Xiaoxue called Sister Li.

"Well, actually my master (Li Bin) also said that this case should not be classified as intentional injury, but their bureau had different opinions, so they sent the case over." Cao Xiaoxue said.

"This matter may not be as simple as you think. They have already filed a case. According to relevant regulations, if they want to withdraw the case, they need to listen to the opinions of our procuratorate. They have different opinions internally and are afraid that we will disagree, so..., Of course this is my guess." Inspector Li curled his lips.

"Okay! This is a big deal." Cao Xiaoxue felt that the case was not complicated, but the procedure was quite complicated, which made her a little confused.