Lawyer's character

"I won't comment on whether what you said is right or wrong. First, please explain the elements of self-defense." After Fang Yi finished speaking, he looked at her with a smile.

“There are five elements of legitimate defense:

1. There must be actual illegal infringement.

2. The unlawful infringement must be ongoing.

3. Defensive actions must be carried out against the person who illegally infringes the law.

4. Defense must be for the purpose of protecting the country, the public interest, the person, property or other rights of oneself or others from ongoing unlawful infringement.

5. Defense cannot obviously exceed the necessary limit and cause major damage. Of course, special defense is excluded. "Zhou Ying thought for a moment and stated the essentials of legitimate defense as if it was an endorsement.

"Did the victim Yan Jianshun actually engage in illegal infringement in this case?" Fang Yi asked.

"It seems... there was no illegal infringement. But someone did want to break into a private house and enter the defendant's house before..." After Zhou Ying finished speaking, she looked at Fang Yi blankly.

"You mean, it was dark and windy, and due to environmental restrictions, the defendant believed that Yan Jianshun was the person who broke into the house before, right?" Fang Yi asked.

"Yes, that's what I mean." Zhou Ying couldn't help but nod.

"What you said is conjecture. The victim did not hold any weapon in his hand, and there was no attack. Moreover, according to the defendant's recollection, the gate of the orchard was a wooden fence. They might not have closed it if they left in a hurry. In this way, the victim was illegally violated. How is behavior determined?

If the illegal infringement does not really exist, but is just the defendant's subjective imagination or speculation, thinking that some kind of illegal infringement has occurred, and based on this misunderstanding, he makes a 'defensive' act against the victim. This situation is called "defensive" behavior in criminal law theory. For: imaginary defense. "After Fang Yi finished speaking, he glanced at her, picked up the tea cup and started drinking tea, letting Zhou Ying digest what he just said.

"Lawyer Fang, what are the characteristics of this imaginary defense? Please tell me.

I seem to have heard the teacher say this during the exam before, but... you know, at that time it was all for the exam, now it is for the purpose of developing skills and making money. "Zhou Ying smiled and took out her notebook and pen, ready to record.

"Okay, let me explain it to you. When I finish, you can compare it with this case. You must practice it. Otherwise, even if you memorize the entire criminal law, it will be useless if you don't use it." Fang Yixiao road.

Zhou Ying nodded like a chicken pecking at broken rice, fully recognizing Fang Yi's words.

“Generally speaking, a hypothetical defense has four characteristics:

1. Subjectively, the perpetrator has the intention of legitimate defense and thinks that he is legitimately defending against the unlawful intruder.

2. Objectively speaking, there is no "illegal infringement" in fact.

3. It has a certain degree of social harm, that is, the 'defense' behavior of the actor who implements the imaginary defense objectively infringes upon the personal or other rights of the person who has not committed the illegal infringement.

4. The perpetrator's imaginary defensive behavior produced consequences that harmed society. "

After finishing speaking, Fang Yi saw that the pen in Zhou Ying's hand kept swiping and he was studying very seriously, and then said: "Forget it! Buy one, get one free, and I will expand your knowledge. Imaginary defense often occurs on the second day. Occasion:

First, it occurs when there is no illegal infringement at all. For example, if you are walking at night and someone comes face to face, because robberies often occur around you, the perpetrator mistakenly believes that the person coming is not good for him, so he implements "defense" and strikes preemptively.

Second, in the course of legitimate defense, ‘defense’ is carried out against other people who have not participated in the illegal infringement. For example, after one party is beaten, they mistakenly believe that the third party who came to break up the fight is an accomplice, and implement a counterattack to 'defend'.

But you should note that it does not mean that the perpetrator subjectively believes that there is an infringement, which will definitely constitute an imaginary defense. Hypothetical defense must be based on a certain objectivity and must have a certain reasonable basis. Otherwise, it is easy to be found to be intentional injury or intentional homicide. "

"Lawyer Fang, are there any more?" Zhou Ying asked without stopping writing and without raising her head.

"You must bite off more than you can chew! You must understand this knowledge point and understand it thoroughly, but you cannot swallow it all.

Go back and think about this knowledge point carefully based on this case. You should follow the concept of less is more. If you can learn one or two knowledge points thoroughly for each case, within three years, your professional ability will be better than that of the same batch. There are several streets for trainee lawyers, so work hard! Future barrister. "Fang Yi said with a smile.

"When you said that, I suddenly felt light and airy. If it weren't for the floor blocking me, I could go to heaven." Zhou Ying said with a smile.

"Stop! I've given you the defense statement for this case, but I'm telling you, if you mess up the defense statement for this case, I'll go to the boss next door and deduct your salary." Fang Yi said, pretending to be serious.

"Yes! I was in a good mood immediately after I got up. Well, I will listen to others and eat well. For my poor trainee lawyer salary, I will definitely live up to your expectations." After that, Zhou Ying left the office holding the case file.

Fang Yi looked at her leaving back: It's great to be young!

Early the next morning, Wu Caiying came to the law firm. This time, Fang Yi asked Zhou Ying to call her to come over, mainly to discuss the defense plan.

“Lawyer Fang, what I am most concerned about is the crime of intentional injury charged by the procuratorate and the crime of negligent death that you mentioned. Which of these two crimes will be punished more severely.

As for the crime, I don't care. What rights are deprived has little to do with us people. "Wu Caiying looked at Fang Yi eagerly.

"I will introduce the legal provisions and you may understand.

Article 233 of the Criminal Law stipulates that anyone who negligently causes death shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are relatively minor, he shall be sentenced to fixed-term imprisonment of not more than three years.

Article 234: Anyone who intentionally harms another person's body and causes death shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment, or death.

The maximum sentence for manslaughter causing death is seven years. The crime of intentional injury (causing death) generally carries a starting sentence of ten years and the maximum sentence is death. In comparison, the court will impose a lighter sentence for the crime of negligence causing death. "Fang Yi explained.

"Oh, I understand. In other words, if sentenced according to the crime of negligent death, my husband will be sentenced to up to seven years..." Wu Caiying thought for a moment and asked: "Lawyer Fang, how confident are you?"

"Based on the current circumstances of the case, I think the possibility is very high. It depends on the judge's determination. I can only say that I will try my best. I dare not give you any guarantee." Fang Yi said.

"Well, I don't understand the law. You are a lawyer and I listen to you." Wu Caiying nodded and suddenly said: "By the way, Lawyer Fang, last time you asked me to find Yan Jianshun's family to write a letter of understanding. I won’t write it. Will this affect my husband’s case? Do you have any other ideas?”

"Well, it will definitely have a certain impact on the sentencing, but if the other party doesn't give a letter of understanding, it can only be like this." Fang Yi looked helpless. If the victim doesn't give a letter of understanding, what can the lawyer do.