Lawyer's character

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

The appellant Lu Chen carried a knife in advance as a defensive preparation when he realized that Hong Fangzhou might harm him. The appellant Lv Chen only had the intention of defense and had no intention of harming others. His act of carrying preventive tools in advance and using the tools to defend himself when encountering illegal infringement still constituted legitimate defense. The specific reasons are as follows:

1. The appellant Lu Chen carried a knife for the purpose of defense.

Article 20 of the "Criminal Law" stipulates: 'In order to protect the country, public interests, the person, property and other rights of oneself or others from ongoing illegal infringement, actions taken to stop the illegal infringement cause damage to the illegal infringer. , it is legitimate defense and does not bear criminal responsibility. ’

The purpose of legitimate defense stipulated in the criminal law is to resist ongoing illegal infringement and protect legitimate rights and interests. After the appellant in this case, Lv Chen, had a friction with someone in a bar, in order to prevent the other party from retaliating, he returned to the car and carried a knife to defend himself. This is a preventive measure. In order to prevent his own legitimate rights and interests from being illegally infringed, the perpetrator takes action before the infringement occurs. Precautionary preparation, taking necessary preventive measures in advance, is also for defense.

However, this preventive measure is not aimed at "ongoing illegal infringement", but at "possible illegal infringement". It is not completely consistent with the conditions for legitimate defense stipulated in the criminal law, but its purpose is still for defense.

At the time of the incident, the appellant used a switchblade to fight back against unlawful infringement. His actions and results showed that the purpose of carrying the knife was to resist unlawful infringement, rather than to target a specific person. Therefore, just because the appellant illegally carried a controlled knife, the defensive nature of his behavior cannot be denied.

Therefore, the appellant Lu Chen in this case carried a protective knife to prevent unlawful infringement, which could not prevent him from using the knife to establish legitimate defense when he encountered unlawful infringement.

As long as there is no obvious imbalance between the damage caused by the act to the illegal intruder and the value of the legitimate rights and interests it protects, and the effect of defense is against the ongoing illegal infringement, it should be deemed as legitimate defense.

2. The appellant Lu Chen and the victim Zou Minglong did not constitute a fight.

The defender believes that the key to legitimate defense and mutual assault lies in whether there is a defensive intention. Defense intention is also called ‘defense purpose’, which is the subjective purpose of the defender. In legitimate defense, the purpose of defense is to protect public interests, personal and other rights of oneself or others from ongoing unlawful infringement.

In a mutual fight, both parties have the intention to harm the other. Both parties have the purpose of harming the other and are actively committing acts of harming the other under the control of this intention. There is no defensive intention required for legitimate defense.

In practice, fights are generally premeditated. The perpetrators are relatively clear about the time, place, and target of the fight, and have relatively specific plans. They are often fully prepared for the fight, and are likely to carry the weapons required for the fight. .

The legitimate defense acts are generally sudden in nature, and the infringement occurs suddenly. The perpetrator often does not know the time, place and counterparty of the infringement in advance. In order to protect his legitimate rights and interests, he is forced to take measures to resist or protect his legitimate rights and interests. Fight back.

Returning to this case, after the appellant Lu Chen had a conflict with Hong Fangzhou in the bar, he went to the car to get the knife and returned to the bar again. However, he neither took the initiative to harm Hong Fangzhou nor told his friends present that he had had a conflict with Hong Fangzhou. It can be seen that his subjective purpose of taking the knife was consistent with what he said. It was a defensive preparation when he realized that Hong Fangzhou might harm him. He had no subjective intention to illegally harm others, and he had no intention of illegally harming others in advance. The events that occurred are not known, therefore, the defendant’s behavior does not constitute a fight.

Under the instruction of Hong Fangzhou, the victim Zou Minglong and others followed him to the door of the restaurant. When they saw Lu Chen and others getting out of the car, they immediately beat Lu Chen and others. They knocked one of them to the ground and then beat Lu Chen and others. Zou Minglong and others were also beaten. The behavior constitutes an illegal infringement on the health of citizens.

When Lu Chen was suddenly attacked by others, in order to protect his legitimate rights and interests, he passively joined in the counterattack. When Lu Chen used the spring knife he carried to defend himself, Zou Minglong was beating him, and his accomplices were beating him. Lu Chen's friends beat him, and the illegal assault was going on at this moment.

Zou Minglong's fatal injury was a stab wound, which was caused by Lu Chen during his defense. Therefore, according to the provisions of Article 20, Paragraph 2, of the Criminal Law, the defendant's behavior in this case constituted legitimate defense.

However, when Zou Minglong beat Lu Chen, he did not hold a weapon but did it with his bare hands. Lu Chen stabbed Zou Minglong several times with a spring knife. When Zou Minglong stopped the assault and escaped injured, he continued to chase and kick him. In beating Zou Minglong, his behavior clearly exceeded the necessary limits required to stop the illegal infringement, and ultimately directly caused the serious consequences of Zou Minglong's death.

Therefore, Lu Chen’s behavior should be classified as excessive defense and constitute intentional injury according to the provisions of the criminal law, but the punishment should be mitigated. The court of first instance sentenced him to fifteen years in prison, which was obviously an excessive sentence. The court was asked to change the sentence in accordance with the law. complete! "Fang Yi said.

…

After two rounds of court defense, the presiding judge announced a ten-minute adjournment and the verdict would be announced after deliberation by the collegial panel.

Fang Yi took out the mineral water in his briefcase, drank a few gulps, and then slumped in his chair, not wanting to talk or move, and his brain was disconnected.

The people in the auditorium watched Fang Yi sitting at the defense table, expressing his opinions in a heated debate. It seemed that it was not very difficult, but how could they know how much information Fang Yi had checked before the court and how many versions of his defense opinions he had revised? During the trial, Fang Yi's brain kept spinning rapidly, responding to the prosecutor's accusations. When the presiding judge knocked the gavel to adjourn the court, Fang Yi felt relaxed all over, and fatigue immediately came over him.

Ten minutes passed by in a flash, and the three judges of the collegial panel walked into the court. The presiding judge said: "Now we will continue the trial and ask the bailiff to bring the appellant Lu Chen to the court.

The collegial panel has reached a verdict after deliberation in this case. In response to the opinions of both the prosecution and the defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court made the following comments:

…The appellant Lu Chen deliberately injured the body of the unlawful intruder in order to stop the ongoing unlawful infringement. His behavior was a legitimate defense, but his defense clearly exceeded the necessary limit and caused major damage to the victim’s death. His behavior constituted the crime of intentional injury. , should be given a lighter punishment according to law.

Lu Chen and his defender proposed that Lu Chen's behavior was excessive defense, and the original judgment's appeal grounds and defense opinions that his sentence was excessive were established and adopted.

Accordingly, in accordance with Article 189, Item (2) of the Criminal Procedure Law of the People's Republic of China and Article 234, Paragraph 2, Article 20, Paragraph 2, of the Criminal Law of the People's Republic of China, According to the provisions of Article 61, the verdict is as follows: 1. The criminal judgment of the Municipal Intermediate Court is revoked; 2. The appellant Lu Chen was guilty of intentional injury and sentenced to five years in prison. "