Lawyer's character

"I went to the scene of the incident yesterday and it was consistent with what was recorded in the case file. The road runs north-south, with an asphalt pavement. The center of the road is painted with a yellow dotted line and the edges are white solid lines. It is a mixed road between motor vehicles and non-aircraft. There are no street lights on both sides of the road. Signs, Complete markings.

After the incident, defendant Zeng Yu's family members scraped together a compensation of RMB 85,000. These are the entire facts of the case. "Lawyer Zhao introduced.

"Hey! My conscience is in trouble. If Zeng Yu's family had no mortgage and no pressure for children to go to school, Zeng Yu might not have evil thoughts. It is said that the victim's family was not very good, otherwise he would not make a living by picking up scraps.

A car accident destroyed two families. "Lawyer Gao sighed.

"Lawyer Gao and I accepted the commission from the defendant's family to defend Zeng Yu, but now our opinions are not very consistent. We would like to hear your opinion." Lawyer Zhao looked at Fang Yi and said.

"What did the procuratorate say?" Fang Yi looked at Lawyer Zhao and Lawyer Gao.

"The County People's Procuratorate charged Zeng Yu with a traffic accident that resulted in the death of a person, which constituted the crime of traffic accident. I also believe that Zeng Yu was involved in a traffic accident and caused the death of the victim, but lawyer Gao has the opposite opinion.

I haven't thought it through very well yet, so I want to discuss it with you and see if we can come up with some ideas. "Lawyer Zhao said.

"Let me talk about my opinion first. I believe that the procuratorate's reason for charging Zeng Yu with escaping and causing death cannot be established. There is no causal relationship between Zeng Yu's escaping behavior and the death of the victim. Even if the defendant Zeng Yu did not escape, the victim would have died. .

Because the objective requirement of leaving the scene of the accident must be met to determine that a traffic accident occurred, the defendant Zeng Yu did not leave the scene of the accident immediately after the first accident, and the victim did not die.

The victim died after being hit by a car. Therefore, this case cannot be regarded as a traffic accident causing death. Just a normal traffic hit and run. "Lawyer Gao said.

After finishing speaking, Lawyer Gao and Lawyer Zhao looked at Fang Yi, waiting for him to speak and express his opinion.

"Lawyer Zhao has sent me the case file before. First of all, the traffic police determined that Zeng Yu was mainly responsible. This cannot be changed now. Secondly, according to the autopsy report and Zeng Yu's confession, he did hit someone, even if he was not dead at the time. He was also seriously injured, so from this point of view, Zeng Yu is guilty of traffic accident. I wonder if you two agree with me?" After Fang Yi finished speaking, he looked at Zhao and Gao.

"Well, we do not deny that Zeng Yu committed the crime of traffic accident. The focus of the dispute between Lawyer Gao and me is whether Zeng Yu is considered to have caused the death of the victim after a hit and run. This focus issue is very critical to Zeng Yu." Lawyer Zhao said.

“According to Article 133 of the Criminal Law, whoever violates traffic and transportation management regulations and thus causes a major accident, causing serious injury or death or causing heavy losses to public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; traffic accidents Those who later escape or have other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if their escape causes death, they shall be sentenced to fixed-term imprisonment of not less than seven years.

If it is merely a crime of traffic accident, and the death of the victim has nothing to do with Zeng Yu, then the first-tier sentence for defendant Zeng Yu should be less than three years; if it constitutes a traffic accident, then the second-tier sentence of more than three years will be applicable. Less than seven years; if a hit-and-run accident results in the death of the victim, Zeng Yu will face more than seven years in prison.

We want to hear from you. "Lawyer Gao said.

"When I was reading the case materials last night, I was thinking about the same question. I think the defendant Zeng Yu committed the crime of escaping causing death in the crime of traffic accident." Fang Yidao.

"Why? What's the reason?" Lawyer Gao immediately sat up straight and stared at Fang Yi and asked.

"First of all, according to Article 5 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents", 'death caused by escape' means that the perpetrator escapes to evade legal investigation after a traffic accident, resulting in death. A situation in which the victim cannot receive help and dies.

I understand that the basis for the aggravated punishment for "traffic hit and run" is the failure to perform obligations such as calling the police and protecting the scene; while the basis for the aggravated punishment for "escape causing death" is the failure to perform the obligation to rescue.

According to the above-mentioned "Interpretation", I have summarized the subjective and objective conditions for determining "death caused by escape" into four:

1. The perpetrator’s obligation to rescue

According to the provisions of Article 70 of the Road Traffic Safety Law, the perpetrator must stop immediately after a traffic accident and protect the scene; if personal casualties are caused, the injured person must be rescued immediately and promptly reported to the traffic police on duty or the traffic management of the public security organ. department.

It can be seen that protecting the accident scene, rescuing the injured, calling the police and accepting handling by the public security organs are legal obligations that the perpetrators must fulfill. In addition, the perpetrator also has a duty to rescue.

Judging from the case file materials in this case, the defendant drove an electric bicycle and collided with the victim who was walking in the same direction, knocking the victim down in the middle of the road. At the same time, the defendant Zeng Yu fell to the side of the road with the car, and then the defendant helped the electric bicycle up.

Although it was night time, there were still many vehicles on this road section. After all, it was the main road to the county. Defendant Zeng Yu had every opportunity to move the victim to the roadside, call for help, or block passing vehicles. rescue, but no rescue measures were taken.

It can be seen that the defendant knew that he had hit someone and had the ability to rescue him at the time.

2. The defendant escaped and failed to fulfill his obligation to rescue.

In judicial practice, there are generally three common situations after traffic accidents:

The first situation is that the perpetrator, in order to avoid legal investigation, fled the scene without caring about the victim's injury, causing the victim to die due to lack of timely rescue. This situation constitutes 'death due to escape'.

The second situation is that the perpetrator sent the victim to the hospital, but after performing the rescue obligation, in order to avoid legal prosecution, the perpetrator fled, and the victim died due to ineffective rescue. In this case, the perpetrator can generally only be deemed to have escaped in a traffic accident, and It does not constitute 'death caused by escape'.

The third situation is that the perpetrator takes the victim away from the scene of the accident and then hides or abandons it, causing the victim to die or become seriously disabled because he cannot receive rescue. In this case, according to the provisions of Article 6 of the above-mentioned "Interpretation", he will be charged with intentional homicide. Or be convicted and punished for intentional injury.

This case is special. The defendant Zeng Yu did not leave the scene immediately after the traffic accident. However, after the second accident in the car behind him, he concealed his identity and fled the scene. It is indeed difficult to determine whether Zeng Yu's behavior is considered an escape.

I believe that whether it constitutes escape should not be understood mechanically, but should also be judged based on defendant Zeng Yu’s subjective purpose and social harm.

First of all, in judicial practice, in most cases, escape manifests itself as fleeing the scene. However, in reality, the means and forms of "escape" are also diverse, and the main issue remains whether to evade legal prosecution.

In judicial practice, hiding at the scene of an accident, lying about not being the perpetrator at the scene, or instigating or agreeing with others to impersonate others even though they are at the scene, etc., with the ultimate purpose of concealing the identity of the perpetrator and evading legal prosecution, can still constitute "escape". .

Therefore, under certain conditions, even if the perpetrator does not flee the scene of the accident, it can still constitute a traffic accident.

Secondly, to determine whether it constitutes "escape", we should also look at whether the perpetrator has fulfilled his legal obligations after the accident. When it comes to "escape causing death", the focus should be on examining whether the perpetrator has fulfilled his obligation to rescue when he has the ability to rescue.

According to the defendant's confession and case file materials, when the perpetrator in the car behind asked Zeng Yu, the defendant Zeng Yu concealed his identity as the perpetrator and immediately fled the scene. The defendant Zeng Yu's subjective intention was very clear. Just to avoid legal prosecution.

Zeng Yu's concealment behavior is essentially an escape behavior after a traffic accident. There is no essential difference between a person at the scene and someone not at the scene, because no one would find out that he was the perpetrator under the circumstances. He is not under the control of the injured party or those involved in the incident.

Therefore, it can be determined that the defendant Zeng Yu fell into the category of "escape" in "causing death by escaping".

3. The causal relationship between the defendant’s escape and the victim’s death

What is unique in this case is the presence of an intervening factor (second collision). After the defendant hit someone, he knew that the victim was injured and could not save himself. As cars were passing on the road at night, any normal person would foresee that the victim might be run over by the car behind him at any time.

If the defendant Zeng Yu had fulfilled his rescue obligations in time after the incident or protected the scene, the harmful consequences of the second collision would not have occurred. However, the defendant chose to escape and did nothing at this time.

Therefore, I believe that the occurrence and intervention of the vehicle behind was foreseeable by the defendant Zeng Yu, and it was also the result of his failure to perform his legal obligations, and it was also what he pursued subjectively.

Although the crushing behavior of the car behind intervened in the causal relationship between the defendant and the victim, it did not constitute an abnormal intervening factor, which was expected. Therefore, the behavior of following a car accident cannot block the causal relationship between the defendant, escape and the death of the victim.

To sum up, I believe that after the defendant Zeng Yu knocked down the victim, he had the ability and conditions to rescue, but failed to fulfill his legal obligation to rescue. He deliberately concealed his identity in an attempt to evade legal investigation. As a result, the victim was run over and killed by the car behind him. Therefore, it should be found that The defendant's behavior was a hit-and-run that resulted in death. "Fang Yi said.

"Lawyer Fang, is it possible that the defendant committed intentional homicide?" Lawyer Zhao suddenly asked. He also had an impromptu idea. He remembered it and asked casually.

"I personally think it does not constitute intentional homicide.

Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents stipulates that if the perpetrator takes the victim away from the scene of the accident and then hides or abandons it, he may be convicted of intentional homicide.

According to the above provisions, if the perpetrator hides or abandons the victim, or moves the victim to a more dangerous area, so that the victim cannot be rescued and dies, or another crushing accident occurs, resulting in the death of the victim, the perpetrator's behavior constitutes intentional homicide.

In this case, the defendant did not move the victim's body, which did not comply with the provisions of Article 6 of the above-mentioned "Interpretation". Moreover, according to the accident determination made by the traffic management department, the perpetrator of the second collision bore secondary responsibility and also had certain faults. Therefore, the defendant's escape behavior did not constitute intentional homicide. "Fang Yi explained.

"Well, although the defendant Zeng Yu didn't say it clearly, judging from the entire case, he was deliberately pursuing a second accident. He wanted to blame others and escape legal sanctions.

In fact, what we can think of, prosecutors and judges should very likely think of. Since the defendant Zeng Yu truthfully confessed the facts of the crime after being brought to justice, and has paid part of the compensation in advance, I suggest a plea of ​​lesser crime. "Lawyer Zhao finished speaking and looked at Lawyer Gao.

"Well, I agree with Lawyer Zhao. It is safest to plead guilty to a lesser crime in this case." Fang Yi said.

"Okay, the minority is subject to the majority. But I reserve my opinion." Lawyer Gao smiled and said: "Lawyer Fang, if it's convenient for you tonight, we brothers will treat you to a meal. You have troubled yourself about this case."

The attorney fee for this case was not high, and it was jointly handled by two lawyers, so Lawyer Gao and Lawyer Zhao calculated it before. Since they invited someone to discuss the case without paying labor fees, they still had to treat themselves to a meal. Otherwise, you won’t be able to speak again next time.

Fang Yi understood what the two of them meant, and nodded in agreement. Drinking and eating was the best way to enhance feelings. Besides, he stayed up until early in the morning yesterday, so eating to make up for it was not an advantage.

The Golden Nine and Silver Ten are not only the season of agricultural harvest, but also the season of mass consumption. Affected by the rising consumption wave of the broad masses of the people, law firms also have more business.

Fang Yi watched the business team busy picking up cases every day. Ma Yi became even more busy after he hooked up with Ouyang Jie. According to Ouyang Jie's gossip, Ma Yi's handsome appearance made him Taking on business has added a lot of advantages. Several female clients signed the entrustment procedures at the first meeting, and there was no need to bargain.

However, in Fang Yi's view, the negative impact is not small. Ma Yi's dark circles are becoming more and more obvious, and he always breathes in the morning, looking like he can't wake up. According to Ma Yi, this is the result of conducting psychological consultations with clients every night.

On this day, Fang Yi had just returned from the detention center, and Ma Yi ran over.

"Lao Fang, I'll give you a case, can you do it?" Ma Yi chuckled.

"What case? It couldn't be that the parties were divorced, had a fight, and were detained, right?" Fang Yi joked.

"No! But it does have something to do with divorce. Come on, let's go to the boss's office to talk." Ma Yi smiled.

Poor fat old man Wan Kefa has been in the hospital to treat alcohol dependence. Ever since Huang Yuanchao and Ma Yi gave him a hip flask that could be easily hidden, Lao Wan Tou had been beautiful for a long time, but then Lao Wan Tou got carried away and the flask was stolen. The boss's wife and his young daughter, who were visiting him, accidentally saw it.

Since then, Lao Wantou has fallen into the abyss of "pain". He can no longer drink a sip of wine and can only cooperate with the treatment in the hospital.