Lawyer's character

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

"As for the attempted robbery raised by the defender, as far as this case is concerned, we believe that this case is a crime of conversion robbery. In the process of converting from theft to robbery, there is only a question of whether one crime is converted to another crime or not. As long as the behavior of the appellant Shen Hu meets the conditions for conversion, it constitutes the crime of robbery, and the robbery should be completed. In other words, as long as the appellant Shen Hu commits violence or threatens violence, after the theft is converted into the crime of robbery, that is It is accomplished. There is no attempted attempt at all," the prosecutor said forcefully.

"Now the defender of the appellant Shen Hu will respond to the prosecutor's opinions." The presiding judge raised his eyelids and said.

"Presiding Judge, Judge: The defender believes that the crime of transformational robbery is also a crime of robbery, and its criminal form should also be determined according to the criminal form of the general crime of robbery. Therefore, like the general crime of robbery, it should also have completed and attempted forms. The reasons are as follows :

1. The crime of transformational robbery is theoretically divided into attempted and completed crimes.

In this case, since the appellant Shen Hu has already committed acts such as theft, and has the objective conditions to commit violence or threaten violence on the spot (causing minor injuries to the security guard), it is obvious that he has "already begun to commit a crime". Therefore, there is no crime in this case. Preparatory form.

However, the crime of transformational robbery requires a certain amount of time and space from the basic criminal behavior (theft) to the implementation of a new behavior (violent resistance to arrest), and then to the completion of the new behavior (success after conversion into robbery), which means that the crime is terminated or attempted. Existence becomes a real possibility.

2. Application of the principle of proportionality of crime and punishment

The purpose of distinguishing completed and attempted robbery crimes is to identify the degree of harm caused by criminal acts to society, and then determine the corresponding criminal liability.

The perpetrator of the crime of transformational robbery generally only has the intention to steal, defraud or rob before the nature of the crime is transformed, so the degree of subjective malignancy is relatively small. If no distinction is made between transformational crimes and all crimes are deemed completed, it is very likely to lead to a heavier sentencing and violate the principle of proportionality of crime and punishment.

In this case, although the appellant caused minor injuries to the victim, he did not obtain any property. According to the sentencing standards for general robbery, the appellant should be considered an attempt.

If Shen Hu is deemed to have committed the crime of transformational robbery and is deemed to have been a completed robbery indiscriminately, his sentence will obviously be heavier than that of a general robbery. It is obvious that the crime and punishment are not suitable.

3. Article 269 of the Criminal Law only provides for the conversion of crimes.

Article 269 of the Criminal Law only stipulates that anyone who commits the crime of theft and uses violence or threatens violence on the spot to resist arrest shall be convicted and punished in accordance with the provisions of the crime of robbery. This provision is only a sign of the establishment of the crime of transformational robbery. It does not deny the division of completed and attempted forms, nor does it stipulate that the crime of transformational robbery is unified into a completed crime.

The defender believes that the conditions constituting the crime of transformational robbery and the form of the crime are two different concepts. The transformation behavior only leads to a change in the nature of the entire behavior, that is, from the crime of theft to the crime of robbery, but it cannot prevent the crime of robbery from being completed or attempted. divide. Therefore, after it is determined that theft is converted into robbery, it is still necessary to distinguish between attempted and completed robbery.

4. Criteria for completed and attempted crimes of transformational robbery

The defender believes that the main difference between the crime of transformational robbery and the crime of general robbery lies in the order in which violence and coercion are used. In the crime of transformational robbery, possession of property comes first and then the use of violence. In the crime of general robbery, the use of violence comes first and then the use of property. Later, there was no substantial difference in the composition of the crime between the two.

According to the provisions of the "Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Robbery", robbery is a completed robbery whether it is the robbery of property or causing minor injuries or more to others.

For the crime of transformational robbery, the standard for determining completion should be consistent with the above-mentioned standards. If no property is robbed and no serious injury or above is caused to others, it should be considered an attempt.

In this case, the appellant Shen Huxian stole a battery worth RMB 150. In order to resist arrest, he committed violence and caused minor injuries to the security guard. He should be convicted and punished for robbery.

Although the appellant had taken off the battery and put it on his electric bicycle and illegally possessed the property, during the subsequent resistance to arrest, the appellant Shen Hu did not take the battery away when he fled the scene, but left it behind. Went to the scene but didn't actually get the battery.

The defender believes that in this case, the appellant Shen Hu illegally possessed property during the theft and cannot be regarded as stolen property in the crime of robbery, that is, the completion of the first act does not necessarily lead to the completion of the later act.

In addition, the appellant's resistance to arrest only caused minor injuries to the security guard and did not result in more than minor injuries.

To sum up, in this case, the appellant neither robbed property nor caused more than minor injuries to others. The court of first instance found the appellant Shen Hu guilty of robbery, but did not apply the relevant provisions of criminal attempt to reduce the appellant’s penalty. The sentencing was obvious. If it is inappropriate, please ask the court to change the sentence in accordance with the law. complete! "Fang Yi said.

…

"... This case has been reviewed by the collegial panel and a judgment has been formed. Based on the opinions of the prosecution and 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:

Shen Hu stole other people's property and used violence on the spot to resist arrest. His behavior constituted the crime of robbery and was an attempt.

The court of first instance was not inappropriate in its characterization of the crime and the lenient circumstances it determined, but it did not determine that the robbery crime in this case was an attempt and should be corrected. The verdict is as follows:

The court of first instance upheld the conviction of the appellant Shen Hu, revoked its sentencing verdict, and sentenced Shen Hu to two years in prison. "The presiding judge pronounced the verdict.

The first-instance court sentenced Shen Hu to three years in prison, and Fang Yi recommended a one-year prison sentence. However, the second-instance court struck a middle ground and sentenced him to two years in prison.

Fang Yi was not surprised when he heard the verdict, because such a verdict was within his expectation. The court can adopt the lawyer's defense opinions, but most of the time the lawyer's sentencing suggestions are just a reference and are rarely adopted by the court.

Shen Guilin, who was in the auditorium, watched helplessly as his son was escorted out of the court by the bailiffs. The father and son looked at each other with complicated eyes. When Shen Hu's figure disappeared from the door of the court, Shen Guilin's eyes were moist.

"Lawyer Fang, if you apply for a retrial, can my son's sentence be reduced?" Outside the court gate, Shen Guilin looked at Fang Yi and asked.

"Difficult! I personally find it difficult. Do you want to apply for retrial?" Fang Yi asked.

"Hey! Forget it, since there is no hope, forget it!" Shen Guilin sighed.

The Shen family has a small financial background and has already spent a lot of money on hiring a lawyer. Before the trial, he consulted other lawyers. If he applied for a retrial, he would have to pay a large amount of legal fees. Shen Hu had already been detained in the detention center for four years. It has been many months, and it will be out in more than a year.

After careful consideration, Shen Guilin finally gave up the idea of ​​applying for a retrial to commute his son's sentence.