Lawyer's character

"It can be seen that the defendant Guan Jiang's purpose of killing and exterminating is very clear. His subjective purpose of committing violence is not to forcibly take away property, but simply to deprive others of their lives. He has the intention of killing rather than robbing. deliberately.

In addition, the perpetrator cannot be convicted repeatedly for the same criminal facts; when the defendant's behavior has been evaluated as a factual basis for one crime, this factor cannot be evaluated as a factual basis for another crime.

The defendant Guan Jiang in this case only committed murder, which has been evaluated as a constituent element of the crime of intentional homicide and can no longer be used as a basis for determining the crime of robbery.

To sum up, the defendant Guan Jiang in this case committed murder to silence him during the theft. He did not premeditate intentional homicide to rob property, or intentionally killed someone to subdue the victim's resistance during robbery, and committed robbery to silence him. And intentional homicide.

The behavior of the defendant in this case does not comply with the provisions of the "Reply of the Supreme People's Court on the Conviction of Intentional Homicide Cases During Robbery", nor does it comply with the purpose requirements for conversion of robbery stipulated in Article 269 of the "Criminal Law". Therefore, The defendant's behavior in this case cannot be punished for robbery and intentional homicide at the same time. He should be convicted and sentenced for intentional homicide.

In view of the fact that the defendant is a first-time offender and an occasional offender, the defender recommended that the defendant be sentenced to death with a two-year suspended sentence. complete. "

After Du Yong finished speaking, he raised his head and glanced at the presiding judge, then looked at Guan Jiang in the dock. He was still sobbing.

"The prosecutor can respond to the defender's defense opinions." The presiding judge felt that both sides seemed to have unfinished words, so he said.

"Okay, in response to the defense opinions of the defender, the prosecutor expressed the following views:

According to Article 1 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Robbery Cases", "household robbery" stipulated in Article 263 (1) of the "Criminal Law" refers to the crime of robbery. Robbery involves entering other people's residences that are relatively isolated from the outside world, including enclosed courtyards, tents of herdsmen, fishing boats used by fishermen as family living places, houses rented for living, etc.

For housebreaking and theft, any act of using violence or threatening violence on the spot after being discovered shall be deemed as housebreaking robbery.

According to the provisions of this judicial interpretation, as long as violence is used on the spot when a burglary is discovered, it should be deemed as a burglary.

The defendant's behavior in this case was a burglary. Because he was discovered and the defendant Guan Jiang killed the victim in order to silence him, it should be deemed as a robbery. Therefore, this case should be classified as robbery and intentional homicide. complete. "After the prosecutor finished speaking, he looked at the presiding judge.

“The defendant’s defender can respond to the prosecutor’s opinions,” the presiding judge said.

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

The defender believes that the application of the "Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Robbery Cases" cannot mechanically copy the legal provisions, but should comprehensively consider the purpose and basis of its interpretation. In this case, the defendant Guan Jiang’s behavior should not be considered as home invasion robbery. The specific reasons are as follows:

First of all, the problem to be solved by the above explanation is mainly how to understand the several situations that aggravate statutory sentences stipulated in Article 263 of the "Criminal Law". The first article mainly explains the concept of "household" and what situations constitute The problem of "home invasion".

For house-breaking theft, the use of violence or the threat of violence on the spot after being discovered should be regarded as house-breaking robbery. The problem to be solved is whether the house-breaking theft can be converted into a house-breaking robbery, rather than the problem of house-breaking theft. The characterization of violent acts committed as a result of theft being discovered is one-size-fits-all.

Secondly, this interpretation is based on the Criminal Law and cannot violate the basic requirements of the Criminal Law and the legislative spirit when understood and applied.

According to the "Criminal Law", the constitution of a crime must have all the constituent elements including subjective and objective aspects, and adhere to the unity of subjectivity and objectivity.

The judicial interpretation of the Criminal Law must be based on the provisions of the Criminal Law and be faithful to the original legislative intent and spirit of the provisions of the Criminal Law.

Therefore, the understanding of the provisions in this interpretation regarding the conversion of "house-breaking theft" into "house-breaking robbery" should be based on the provisions of the Criminal Law on the conversion of robbery.

Article 269 of the "Criminal Law" has clearly stipulated that the prerequisites for transformation can only be three situations: harboring stolen goods, resisting arrest, or destroying evidence of crime. Naturally, the interpretation of the provisions cannot exceed these three situations.

Finally, judicial interpretation does not need to explain what is already clear and unambiguous in the provisions of the Criminal Law. Therefore, the above explanation does not repeatedly enumerate these three situations. Just because these three situations are not clearly stated in the explanation, it cannot be unilaterally understood to mean all 'housebreaking, the use of violence on the spot or the threat of violence when discovered' Regardless of the specific circumstances, it is all considered to be a home invasion robbery.

In other words, if the defendant is discovered while breaking into a house, and because he sees the beauty of the victim, he gives up the idea of ​​stealing, and violently rapes the victim on the spot, the circumstances are also consistent with the term "housebreaking, where the defendant uses violence on the spot or uses violence to rape the victim because he is discovered." In the case of "threat of violence", it is obviously absurd to identify the rape as house-breaking robbery without considering the subjective purpose of the perpetrator.

Therefore, when applying the above explanation, the conversion of house-breaking theft into house-breaking robbery must comply with the provisions of Article 269 of the Criminal Law on conversion of robbery.

If the defendant does not meet the three conditions stipulated in Article 269 of the Criminal Law when committing violence, the above explanation cannot be applied mechanically and his behavior will be determined as robbery.

Therefore, in this case, the defendant's behavior only constituted the crime of intentional homicide and was not sufficient to constitute the crime of robbery. complete. "Du Yong responded.

…

After the court adjourned, the collegial panel directly pronounced the verdict.

The Intermediate Court held that the defendant Guan Jiang was discovered during the theft and used his hands to pinch and cut the victim Guantong's neck with a knife, resulting in the death of the victim Guantong. This constituted the crime of intentional homicide. Based on the facts of defendant Guan Jiang’s crime, the nature and circumstances of the crime and the degree of harm to society, and in accordance with the provisions of Article 232 and Article 57 Paragraph 1 of the Criminal Law, the verdict is: Defendant Guan Jiang Those found guilty of intentional homicide are sentenced to death and deprived of political rights for life.

After the verdict was announced, Guan Jiang collapsed directly on the dock and was dragged out of the court by the bailiff. Guan Jiang's mother, Zhang Shuilan, who was in the auditorium, fainted from heartache. After some resuscitation, Zhang Shuilan slowly opened her eyes. Tears could not stop flowing down, and she could not say a word.

With the help of Du Yong and Yun Qiao, Guan Jibao helped his wife out of the court and got into Du Yong's Jetta. Seeing Guan Jibao's wife acting like this, Du Yong couldn't bear it and decided to drive them back.

Two updates today!