Lawyer

Chapter 1014
"This case reminds me of Azu (Daniel Wu) in "New Police Story". The living environment has a great impact on people's hearts." Du Yong sighed.

"Well, in Song Rongming's case, do you think there is any problem with the charges charged by the public prosecution? I'm a little unsure about the charges in this case." Li Mingbo looked at Du Yong opposite.

Du Yong touched his chin and thought for a while: "I agree with the charges determined by the procuratorate."

"Oh? The second defendant robbed property by beating or threatening the victim with a knife. The violence and coercion used reached a level that could endanger the life and health of others. Shouldn't it be considered a crime of robbery?" Lee Myung-bak's thoughts Different from Du Yong.

"Well, judging from the defendant's behavior, it completely meets the constituent elements of the crime of robbery.

However, the two defendants are both in the age of Dancing Elephant, and the standards for determining the degree of violence and coercion they use should be different from those for adults.

In addition, this case did not cause the victim more than minor injuries. It was an act of extorting a small amount of property with minor violence. I personally think that it is more appropriate to classify it as the crime of picking quarrels and provoking trouble. " Du Yong said.

"Can you be more specific?" Li Mingbo asked.

"According to the provisions of Article 263 of the "Criminal Law", the crime of robbery refers to the act of robbing public and private property on the spot by violence, coercion or other methods.

However, according to Article 293, Paragraph [-], Item [-] of the "Criminal Law", those who forcibly take public or private property, if the circumstances are serious, should be charged with the crime of picking quarrels and provoking trouble.

As for the crime of robbery and the crime of picking quarrels and provoking trouble by force, the objective aspect of the two crimes is the forcible and illegal possession of public and private property.Disputes are very easy to arise in judicial practice.There are relevant cases in the previous cases handled by the team, and you can borrow the relevant case files when you have time.

Regarding how to distinguish the crime of picking quarrels and provoking trouble by force and the crime of robbery, the Supreme People's Court issued the "Opinions on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Robbery and Robbery" issued in 2005, commonly known as the "Two Robbery Opinions", clearly stipulates that behavior When people commit acts of picking quarrels and provoking trouble, objectively it may also manifest as the characteristics of taking public and private property by force.The difference between this forceful act of picking quarrels and provoking troubles and the crime of robbery is that:
First, subjectively analyze whether the perpetrator has the motive to provoke.

The perpetrator of the crime of robbery generally takes the illegal possession of public and private property as the criminal purpose, that is, the illegal possession of public and private property is the ultimate goal of the perpetrator.

Subjectively, the perpetrator of the crime of picking quarrels and provoking troubles also has the purpose of being aggressive, venting emotions, and seeking mental stimulation, and illegal possession of public and private property is in a secondary position in the perpetrator's subjective intention.

The perpetrators of the crime of robbery are usually more cautious than the perpetrators of the crime of picking quarrels and provoking trouble, so that they can quickly escape from the scene after committing the crime of robbery.

As for the perpetrators of the crime of picking quarrels and provoking trouble, some deliberately choose to commit crimes in public, stay at the scene after committing crimes to show their prestige, or choose to commit crimes in the same place multiple times to seek mental stimulation.

From the perspective of choosing the object of infringement, robbery crimes are committed for the purpose of stealing property, so when choosing the object of infringement, more attention is paid to the realistic possibility of whether the other party has property.The crime of picking quarrels and provoking troubles pays more attention to whether the victim has the ability to resist. To put it bluntly, it is a bit bullying and fearing the strong.

Second, analyze the extent of the perpetrator's use of violence and coercion from the perspective of objective behavior.

Although the "Criminal Law" does not stipulate the degree of violence in the crime of robbery, it is generally believed that it should be sufficient to restrain the victim's resistance.However, in the crime of picking quarrels and provoking trouble, the perpetrator's means of violence are relatively weak, and it is generally not necessary to make the victim dare not resist or be unable to resist.

Of course, there is a certain overlap and intersection between the behavior of the crime of picking quarrels and provoking trouble and the crime of robbery, and it may sometimes be difficult to determine whether the perpetrator has the motive of provoking trouble. Therefore, although the judicial interpretation has made a clear distinction between the two crimes, in practice it still remains There is a situation where the criminal behavior committed by the perpetrator violates both the crime of picking quarrels and provoking trouble and the crime of robbery. In this case, the crime can be punished from the first level in accordance with the punishment principle of imaginary concurrent offences.

The Supreme People's Court and the Supreme People's Procuratorate jointly issued in 2013 "Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases of Picking Quarrels and Provoking Troubles" also clearly stipulates that the implementation of acts of picking quarrels and provoking troubles is also in line with the crime of picking quarrels and provoking troubles and the crime of intentional homicide, intentional homicide, and intentional homicide. Injury crimes, crimes of intentionally destroying property, crimes of extortion, crimes of snatching, crimes of robbery, etc. constitute elements of crimes, and punishment shall be based on the conviction and punishment of the heavier crime. "Du Yong explained.

"Lawyer Du, I'm a little confused. According to what you said just now, the two defendants in this case did constitute the crime of picking quarrels and provoking trouble, but whether there will be imaginary coincidence in this case, the defendant also constituted the crime of robbery, and the court will directly convict and punish the crime of robbery. ?” Li Mingbo looked at Du Yong suspiciously.He takes every possibility into account.

"Well, in fact, the problem you mentioned often occurs in reality, but the defendants in this case are two minors.

The "Two Robbery Opinions" mentioned just now stipulates that it is generally not appropriate to be convicted and punished as a crime of robbery for minors who use or threaten to use minor violence to snatch a small amount of property.If his behavior conforms to the characteristics of the crime of picking quarrels and provoking trouble, he may be convicted and punished for the crime of picking quarrels and provoking trouble.

In addition, in order to further clarify the criminalization standards for minors using or threatening to use minor violence to extort a small amount of property, in 2006 the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Minors".

Article [-] of the interpretation stipulates that people who are more than [-] but less than [-] use minor violence or threats.It is not considered a crime to forcibly ask for living and school supplies or a small amount of money that other minors carry with them, and that does not cause minor injuries to the victim or affect daily life and other harmful consequences.People who have reached the age of [-] Liu but less than [-] Eight have the circumstances specified in the preceding paragraph, and are generally not considered to be committing a crime. " Du Yong said.

"Oh? So, the defendant in this case may not be sentenced?" Li Mingbo's heart moved. For the victim, this may not be a good thing, but for the defender, this is a good opportunity. Maybe he can make a name for himself.

"Not necessarily. According to the above provisions, whether it constitutes the crime of picking quarrels and provoking trouble involves three aspects:
The first question concerns the identification of 'minor violence'.

The criteria for judging minor violence can be analyzed and judged from the method and intensity of the violence, and whether it causes physical harm to the victim, but there is still a certain distinction between minors and adults.

For example, in the same robbery with a knife, the subjective viciousness shown by adults and minors is different from the degree of threat to the victim.

Even if an adult only threatened the victim with a knife and did not actually use the knife to injure the victim, it should generally be considered beyond the scope of "slight violence" and seriously violated the personal safety of others.

As for the robbery of a minor with a knife, whether it is considered "minor violence" must be comprehensively determined based on whether the knife is actually used to injure someone, whether it causes more than minor injuries to the victim or other harmful consequences. When Du Yong said this, he was interrupted by Li Mingbo.

(End of this chapter)