Lawyer

Chapter 1019 Chapter 1076 Chapter 1077 Response
Chapter 1076, 1077 Response

The court held that the defendants Lu Hongzhe and Song Rongming used violence, coercion and other methods to bully the weak in order to seek mental stimulation. They repeatedly extorted money from multiple victims and disrupted social order. Their actions constituted the crime of picking quarrels and provoking trouble.

The facts of the crime charged by the public prosecution agency are clear, the evidence is reliable and sufficient, and the charges are established.The defense opinions put forward by the two defendants and their defenders are valid and accepted.

Accordingly, in accordance with Article 293, Paragraph 20, Item 17 of the Criminal Law, Article No. The provisions of Article [-] of Interpretation of Several Issues are decided as follows:
[-]. The defendant Lu Hongzhe was guilty of picking quarrels and provoking trouble and was sentenced to one year in prison;
[-]. Defendant Song Rongming committed the crime of picking quarrels and provoking trouble and was sentenced to one year in prison;
After the verdict was announced, the two defendants did not appeal and the prosecutorial office did not protest, so the verdict became legally effective.

Although the charges and sentence determined by the court were in line with Du Yong's expectations, he was not happy at all. The two defendants are in their prime years, and their future life path... is a pity.But the reality is that there is always a price to pay for doing something wrong.

……

Lu Ye's case finally came to court, and the court held a closed hearing on the case.Lu Ye confessed to the crime...

"The public prosecutor can interrogate the defendant on the criminal facts charged in the indictment." The presiding judge looked at the prosecutor.

"Defendant Lu Ye, how did you know the victim?" The prosecutor didn't show any expression, showing no emotions.

The situation in this case is by no means an isolated case, and it is different from ordinary rape cases. The prosecutor has encountered similar cases before. He felt that the defendant was hateful and pitiful. He hated him for wasting his good years. He didn't know that there was still a lot worth doing in life. A matter of hard work; pity his ignorance, a frog at the bottom of a well.

The age at which love first started, coupled with the courage to dare to go beyond the threshold, perhaps this kind of thing is hard to avoid, and it is hard to tell whose responsibility it is.Maybe this is the green years!

"My friend and I went to the basketball court to play, and she happened to be there, so we met." Lu Ye replied.He was not in a high mood, and he looked a little out of his mind.

He never dreamed that one day he would sit in the dock and stand trial.

"After you got to know each other, what channels do you usually communicate with?" the inspector then asked.

"Sometimes we use WeChat, but more often we use QQ." Lu Ye replied.

"When you added friends on QQ, did you see her identity information?" the prosecutor asked, staring at him.

"I can't remember." Lu Ye replied.

"Do you know her identity?" asked the inspector.

"I know, I knew it when I knew her." Lu Ye answered every question.

"How far is the relationship between you?" The inspector changed the question.

"...everything that should have happened happened." Lu Ye said with his head down.

"Judge, we're done asking." The prosecutor looked at the trial seat.

"Does the defender of the defendant, Lu Ye, need to ask the defendant questions?" asked the presiding judge.

"I need to ask a question." Du Yong finished speaking and looked at Lu Ye: "Defendant Lu Ye, when did you know the real situation of the victim Yan Xiaxia?"

"After having sex for the third time." Lu Ye replied.

"Have you ever had sex after knowing her true situation?" Du Yong asked.

"It happened once." Lu Ye replied.

"Who proposed it?" Du Yong asked.

"I proposed it at the time, and after she agreed, we went to Rujia." Lu Ye said.

"Presiding judge, the defender has finished asking questions." Du Yong asked few questions, mainly to let the judge know the exact time when the defendant "knowingly" the victim's real situation.

……

"The facts of this case have been investigated clearly, the court investigation is over, and now the court debate is starting. The court debate mainly revolves around the disputed facts that have not been certified by the court and how to apply the law based on the facts. The public prosecutor will speak first." The presiding judge said.

"Presiding judge, judge: The public prosecutor believes that Lu Ye met the victim Yan Xiaxia at the stadium, so it is impossible not to know Yan Xiaxia's real identity; moreover, Lu Ye also communicated with the victim through QQ chat, and the victim's QQ profile shows From this, it can be seen that Lu Ye should know the situation of the victim before he had many relationships with the victim.

Therefore, we believe that the defendant, Lu Ye, knew the real age of the victim, but still had a relationship with her, and his behavior constituted the crime of rape.We recommend that he should be punished more severely and be sentenced to [-] years in prison.complete. "

After the prosecutor finished speaking, Lu Ye in the defendant's seat was full of panic, ten years!During this period of time in the detention center, he has already experienced the taste of losing his freedom. He doesn't think he can bear the ten-year sentence.

"Next, the defendant will defend himself." The presiding judge said.

"Judge, I admit my mistake. I didn't force Yan Xiaxia. We really got a room because we were in love. I didn't force her. I really didn't force her..." Lu Ye looked at the presiding judge, tears streaming down his face. , eyes full of pleading.

"Defendant's defender expresses his defense opinion." Perhaps because he had seen too much, the presiding judge didn't respond to Lu Ye's plea at all.

"The presiding judge, the judge: the defender has no objection to the charges charged by the public prosecutor against the defendant, but has objections to the point in time when the public prosecutor determined that the defendant knew the actual age of the victim.

Judging from the existing evidence, the evidence provided by the public prosecutor can only prove that the defendant Lu Ye really knew the actual situation of the victim when he had sex with the victim for the fourth time.

When he first met the victim and had sex with the victim for the first, second, and third times, the information about the victim that Lu Ye possessed included:

[-]. The age of the victim.According to ordinary people's common sense, the victim's age is exactly the age of cardamom, the actual situation is difficult to calculate, it can be big or small.But this does not mean that the defendant Lu Ye knew the real situation of the victim Yan Xiaxia, it can only be a speculation, a conjecture.

[-]. The defendant Lu Ye and the victim Yan Xiaxia were QQ friends, and they chatted and communicated. The victim’s QQ personal information will show his age. The possibility of not checking is not ruled out.In addition, the age filled in the QQ personal information may be true or may not be true. The above age has not been verified, and the credibility is not high, so it cannot be used as the basis for judging the case.

Therefore, the existing evidence in the case cannot prove that Lu Ye really knew the real situation of the victim when he had sex with the victim three times before.

The defendant had an X relationship with the victim with the consent of both parties, and after knowing the real situation of the victim, the two parties had only one relationship, and it happened with the consent of both parties. The social harm is different from that of Common rape cases.

In view of the fact that the defendant voluntarily pleaded guilty in court and showed remorse, the defender suggested that the defendant should be sentenced to three years in prison.complete. "Du Yong said in his defense.

The three-year fixed-term imprisonment is the recommended sentence determined by Du Yong after communicating with the defendant's parents, because according to the provisions of Article 236 of the "Criminal Law", the crime of rape shall be punished with fixed-term imprisonment of not less than three years but not more than ten years.The sentence suggested by Du Yong is already the minimum sentence.

"The public prosecutor can respond to the defences of the defenders," the presiding judge said.

"Okay, for the defender's defense, I mainly express the following points:
First of all, the provisions on the crime of rape in paragraph 236 of [-] of the "Criminal Law" do not require that the perpetrator should "knowingly" the real age of the other party.

In addition, as an adult and a man with normal cognition and judgment ability, it is not impossible for the defendant to know the real age of the victim, but he can fully recognize the real situation of the victim as long as he is a little cautious and careful.

In addition, the defendant continued to have sexual relations with the victim after knowing the actual age of the victim, which reflected that the defendant ignored the real situation of the victim and had no regard for his behavior during the entire process of interacting with the victim and having sexual relations. Laissez-faire attitude.

Leaving aside whether the victim’s external characteristics such as speech, behavior, clothing, and routine of life are indeed more like adults, based on the existing evidence alone, there is no sufficient reason to classify the defendant as an extremely special exception where it is impossible to determine the true age of the victim. situation'.

Therefore, we believe that the defendant already knew the real situation of the victim before he knew the victim and had sexual relations, and the defendant's behavior should be severely punished.complete. ’ the inspector responded.

"Defenders can respond to the public prosecutor's comments," the presiding judge said.

"Based on the Prosecutor's Defense Opinion and Responses, the Defense Counsel issued the following Defense Opinion:

First, Article No. 14 of the General Provisions of the "Criminal Law" stipulates that criminal intention refers to the subjective psychological attitude of "knowing that one's behavior will cause harmful results to society, and hoping or allowing such results to happen".

In the sub-provisions of the Criminal Law, some provisions explicitly stipulate "knowing" for intentional crimes, such as the crime of harboring and shielding; while most provisions do not expressly stipulate "knowing".

"Knowledge" is clearly stipulated in the sub-provisions, mainly for the purpose of highlighting and emphasizing, rather than "knowledge" is not explicitly stipulated in the sub-provisions, and "knowledge" is not required to constitute a crime.

The crime of rape is an intentional crime. Therefore, the "knowledgeable" provisions of the general provisions of the "Criminal Law" on intentional crimes must also apply to the crime of rape.

Second, regarding the content of "knowledge", it should be judged in conjunction with the specific crimes of the crimes in the "Criminal Law".In the crime of ordinary rape, the perpetrator realizes that his behavior is against the will of the woman, that is, it meets the subjective requirements and does not need to know the age of the other party; The defendant is not required to know the true age of the victim.

If the perpetrator really had voluntary X-relationships with the girl of Cardamom Nianhua, and it is indeed impossible for the perpetrator to know the real age of the other party, then the perpetrator is subjectively lacking in censure, that is, he does not have the "knowing his own" requirement required by criminal intent. Behavior will produce harmful social results, and hope or let this result happen' subjective psychological attitude, proceeding from the principle of unity of subject and object, the perpetrator should not be punished as rape.

Based on the above analysis, for a non-coercive means to have sexual relations with a cardamom woman, 'knowingly' the real age of the victim is a subjective constituent feature of the crime of rape.

In addition, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued Article No. 2013 of the "Opinions on Legally Punishing Crimes of Sexually Assaulting Minors" issued in 19. If a woman commits sexual assault such as JY, it should be determined that the perpetrator 'knows' that the other party is the year of cardamom.This opinion reaffirmed that 'knowingly' the true situation of the victim is the subjective element for constituting this type of rape crime.

The defender believes that the evidence in a criminal case must not only be objectively true, but also be sufficient to fully prove the objective facts, eliminate all reasonable doubts, and reach a unique conclusion.

The evidence provided by the public prosecutor cannot meet this standard. It is just an inference, which cannot reasonably explain or eliminate doubts and contradictions. Moreover, QQ personal information is generally not completely true, and the perpetrator may not check it. It may be too small, and it is impossible for the defendant to accurately predict the real age of the victim. Therefore, the evidence that the prosecutor accused the defendant of committing crimes four times is not sufficient, and it cannot be determined that the defendant knew the real situation of the victim when he had sex with the victim four times.

The evidence on file in this case can only prove that the defendant knew the true situation of the victim when the fourth (last) sexual intercourse occurred voluntarily between the two parties. Therefore, the defendant's first three sexual relations with the victim did not constitute the crime of rape. Having sex with the victim four times constitutes the crime of rape, over. "Du Yong replied.

"The public prosecutor can continue to respond to the defense's arguments," the presiding judge said.

"Responding to the defender's defense opinion and response, the public prosecutor made the following point of view:

We believe that the standard for proof of a guilty verdict stipulated in the Criminal Procedure Law is that the facts of the case are clear and the evidence is credible and sufficient. This is the general and highest requirement for fact finding and evidence review.

However, judicial practice experience shows that the degree of proof of different factual elements constituting a crime may vary.It is not necessary to exclude all reasonable doubts and achieve unique conclusions in order to prove that the defendant is guilty.

Especially for crimes such as drug crimes, in practice, the grasp of the proof standard of subjective elements is slightly looser than that of other crimes. The guiding influence of the criminal policy of similar crimes.

In such cases, the determination of the facts of the case is not a purely scientific activity of seeking objective truth, but a process of fact reconstruction and reproduction guided by the pursuit of objective truth and influenced by value orientation and value judgment .complete. ’ the inspector responded.

……

(End of this chapter)