Lawyer's character

"What the hell? Abuse, seven years?" Fang Yi was startled.

"Yes, that's the verdict." Wang Deyou said.

"No, there is something wrong with the verdict of this case. How could there be conflicting laws? Did the procuratorate protest?" Fang Yi looked at Wang Deyou and asked.

"Protested." Wang Deyou replied: "The Procuratorate believes that:

The abuse committed by the first defendant Guan Xianghong cannot be absorbed into the intentional injury committed by him. There is no competing legal relationship between the crime of abuse and the crime of intentional injury. The original judgment misunderstood the law, improperly applied the law, and was inaccurate in its characterization.

Second, Guan Xianghong intentionally harmed others and caused death. According to Article 234 of the Criminal Law, he should be sentenced to a fixed-term imprisonment of more than ten years. The original sentence was inappropriate. "

"What was the verdict in the second instance?" Fang Yi asked.

"First tell me what's wrong. After that, I'll tell you how the second trial was decided." Wang Deyou said with a smile.

"Are you fishing? You deliberately left a hook waiting for me." Fang Yi smiled.

"Tell me, tell me... we brothers are still hiding it, and we are not consulting the parties involved..." Wang Deyou didn't answer his words, and just kept urging.

"The procuratorate prosecuted this case for intentional injury, and the court convicted him of abuse. I think the procuratorate's charge was correct, and the protest had a legal basis. The court made a mistake in the relationship between the two charges.

These two crimes...are vastly different from each other, and the prison terms are much different. "Fang Yi said.

"Explain it." Wang Deyou sat upright, leaning forward, staring at Fang Yi.

Wang Deyou knows Fang Yi relatively well. If you introduce a case to him, Fang Yi will automatically start his brain to analyze the case. This may be an occupational disease, just like a policeman who engages in counter-attacks and looks at everyone like a thief. It is completely a conditioned reflex.

"Well, when you were introducing the case just now, I was thinking about the legal relationship between long-term abuse and death. Let's first talk about whether there are any conflicts of law between the crime of abuse and the crime of intentional injury.

Concurrence of legal provisions means that a criminal act meets the constituent elements of several crimes at the same time, and there is an overlapping or inclusive relationship between these several crimes. However, only one of the crimes can be applied and the others are excluded when convicting and sentencing. applicable.

Imaginary concurrence means that the criminal behavior committed by the perpetrator violates several crimes at the same time, and there is no necessarily inclusive or intersecting relationship between the several crimes.

Therefore, the key to determine whether there is a competing relationship between the crime of cruelty and the crime of intentional injury lies in whether there is an overlapping or inclusive relationship between the constituent elements of the two crimes.

According to the provisions of Articles 234 and 260 of the Criminal Law, the criminal elements of the crime of abuse and the crime of intentional injury are not the same, and there is no overlapping or inclusive relationship in the elements. Specifically:

First of all, the criminal subject of the crime of abuse is a special subject, which is constituted only when the perpetrator and the victim have a family member relationship. The criminal subject of the crime of intentional injury is a general subject, not necessarily a family member.

Secondly, the crime of abuse subjectively intends to cause physical and mental destruction and torture to the victim. The perpetrator does not intend to directly cause injury or death to the victim. The injury or death to the victim is the result of long-term abuse. The perpetrator of the crime of intentional injury subjectively actively pursues or allows the consequences of injury to occur.

Thirdly, the crime of abuse violates the equal rights of family members in family life and the personal rights of the victim. The crime of intentional injury infringes upon the right to physical health of others.

Finally, the abuse in the crime of abuse is continuous, regular and consistent, which is the cause of injury and death to the victim. One act of abuse is not enough to constitute the crime of abuse, let alone cause the victim to be injured or killed. The physical harm to the victim caused by the crime of intentional injury is generally caused once.

What is the defendant's name? "Fang Yi asked suddenly when he said this.

"Guan Xianghong. The defendant's name is Guan Xianghong." Wang Deyou replied.

"Well, I think there are two criminal acts committed by the defendant Guan Xianghong in this case, one is long-term abuse; the other is the last act of intentional harm.

During the abuse process, Guan Xianghong's last intentional act of harm to the victim could not be included in the abuse, but constituted an independent and objective act in the sense of criminal law.

It can be seen that the perpetrator's current behavior and his previous abusive behavior are not "the same behavior" in the sense of criminal law. They can be completely separated from the previous abusive behavior and can be evaluated separately.

Therefore, I believe that there is no conflicting relationship between the defendant's intentional harm and cruelty. "Fang Yi explained.

"Then tell me, in this case, if the defendant committed intentional harm during the abuse, how should he be convicted?" Wang Deyou asked.

“I have been involved in several cases of this kind before.

In real life, the defendant's abuse of family members is often accompanied by intentional harm, and the abused often results in injury or death.

In my opinion, if the perpetrator has intentionally harmed the abused person for a long time, but does not cause the victim more than minor injuries, it should be considered a crime of abuse.

However, in the process of regular abuse, if the perpetrator knows that his behavior will cause physical harm to the victim, and has objectively caused harm to the victim, he should be deemed to be guilty of intentional injury.

If the harmful behavior is separated and evaluated independently, other abusive behaviors constitute the crime of abuse, and the crime of abuse and the crime of intentional injury should be punished together.

If the harmful behavior is separated and the remaining abusive behavior does not constitute the crime of abuse, the perpetrator can only be guilty of intentional injury and be punished for one crime.

Returning to this case, the defendant Guan Xianghong has long been abusing the victims he raised by committing violent acts in his family life. The circumstances are so egregious that even without this act, his previous series of abusive acts are enough to constitute abuse. crime.

Guan Xianghong's behavior was because he found that the victim had gone out, so he beat the victim with fierce violence. The degree of violence far exceeded the ordinary beating behavior in domestic abuse, and it resulted in serious consequences of the death of the victim. His subjective intention was no longer It is no longer abuse, but direct harm to the victim's health.

Therefore, I believe that the defendant should be punished for the crime of cruelty and intentional injury, and should be punished for several crimes together.

However, according to the provisions of Article 260 of the "Criminal Law", if the crime of abuse has not caused serious injury or death to the victim, the case will only be handled upon filing a complaint.

The abuse committed by the defendant in this case before he beat the victim for the last time had not yet caused serious injury or death to the victim, and the victim had not filed a complaint before his death. Therefore, the defendant cannot be held criminally responsible for his abuse.

Therefore, I guess the court of second instance will convict and sentence the defendant for intentional injury.

Come on, it's time to reveal the mystery! "Fang Yi stretched out his right hand and made an inviting gesture towards Wang Deyou.