Lawyer

Chapter 343 The Brain Is Disconnected

"Presiding judge, judge: According to the prosecutor's defense opinion and response, the defender issued the following defense opinion:

The appellant Lu Chen carried the knife in advance as a defensive preparation when he realized that Hong Fangzhou might infringe him.The appellant Lu Chen only had the intention of defending himself, but had no intention of harming others. His behavior of carrying a preventive tool in advance and using it to defend against illegal infringement still constitutes a legitimate defense.The specific reasons are as follows:
[-]. The purpose of the appellant Lu Chen carrying knives is also for defense.

Article No. 20 of the "Criminal Law" stipulates: "In order to protect the state, the public interest, the person, property and other rights of oneself or others from the ongoing illegal infringement, the act of stopping the illegal infringement will cause damage to the illegal infringer. It belongs to self-defense and does not bear criminal responsibility. '

The purpose of justifiable defense stipulated in the Criminal Law is to resist ongoing illegal infringement and protect legitimate rights and interests.The appellant in this case, Lu Chen, had a friction with others in a bar, and in order to prevent the other party from retaliating, he returned to the car to carry a knife for self-defense. Precautionary preparations, taking necessary preventive measures in advance, are also for the purpose of defense.

However, this kind of preventive measures is not aimed at "current illegal infringement", but "possible illegal infringement", which is not completely consistent with the conditions for the emergence of justifiable defense stipulated in the criminal law, but its purpose is still for defense.

At the time of the case, the appellant used a switchblade to counter the illegal infringement. His actions and results showed that the purpose of carrying the knife was to defend against illegal infringement, rather than targeting a specific person.Therefore, the defensive nature of the appellant's behavior cannot be denied just because the appellant illegally carried controlled knives.

Therefore, the appellant Lu Chen in this case carried a preventive knife to prevent the occurrence of unlawful infringement, which cannot prevent him from using the knife to carry out defensive behavior when encountering unlawful infringement to establish a justifiable defense.

As long as there is no obvious imbalance between the damage caused by his behavior to the unlawful infringer and the value of the legitimate rights and interests he protects, and the effect of the defense is aimed at the ongoing unlawful infringement, it should be recognized as a justifiable defense.

[-]. The appellant Lu Chen and the victim Zou Minglong did not constitute a mutual assault.

The defender believes that the key to self-defense and mutual assault lies in whether there is a defensive intention.Defensive intention is also called "defensive purpose", that is, the purpose of the defender's subjective defense.The purpose of defense in justifiable defense is to protect the public interest, the personal and other rights of oneself or others from ongoing illegal infringement.

In a mutual fight, both parties to the fight have the intention to injure the other party, and both sides aim to infringe the other party, and under the control of this intention, they actively carry out acts of infringing the other party, and there is no defensive intention required by legitimate defense at all.

In practice, mutual assaults are generally premeditated. The perpetrators are relatively clear about the time, place, and counterparty of the mutual assault, have relatively specific plans, often make full preparations for it, and are likely to carry the murder weapons required for the mutual assault, etc. .

However, justifiable self-defense acts are generally sudden, and the violation occurs suddenly, and the perpetrator is often not aware of the time, place and relative person of the violation in advance. In order to protect his legitimate rights and interests, he is forced to take measures to resist or fight back.

Returning to this case, after the appellant Lu Chen had a conflict with Hong Fangzhou at the bar, he went to the car to get the knife and returned to the bar again, but he neither actively injured Hong Fangzhou nor told the friends present that he had had conflicts with Hong Fangzhou It can be seen that his subjective purpose of taking the knife is consistent with what he said, and it was a defensive preparation when he realized that Hong Fangzhou might infringe him. The events that happened are unknown, therefore, the behavior of the defendants does not belong to mutual assault.

Instigated by Hong Fangzhou, the victim Zou Minglong and others followed to the entrance of the restaurant. Seeing Lu Chen and others getting off the car, they beat Lu Chen and others immediately, knocking one person to the ground, and then beat Lu Chen and others, Zou Minglong and others The act is an unlawful infringement on the health of citizens.

When Lu Chen was suddenly attacked by others, in order to protect his legitimate rights and interests, he passively joined in the counterattack. When Lu Chen used the switchblade he carried to defend himself, Zou Minglong was beating him, and his accomplices were attacking him. Lu Chen's friends were beating up, and the illegal infringement was going on at this moment.

Zou Minglong's fatal wound was a knife wound, which was caused by Lu Chen during his defense.Therefore, according to the second paragraph of Article No. 20 of the "Criminal Law", the behavior of the defendant in this case constituted justifiable self-defense.

However, when Zou Minglong beat Lu Chen, he did not hold a murder weapon, but did it with bare hands. Lu Chen stabbed Zou Minglong several times with a switchblade, and continued to chase and kick him when Zou Minglong stopped the assault and fled injured. The beating of Zou Minglong obviously exceeded the necessary limit to stop the illegal infringement, and eventually directly caused the serious consequences of Zou Minglong's death.

Therefore, Lu Chen's behavior should be regarded as excessive self-defense. According to the provisions of the criminal law, it constitutes the crime of intentional injury, but the punishment should be mitigated.The court of first instance sentenced him to 15 years of fixed-term imprisonment, which is obviously too heavy, and the court is requested to change the sentence according to law.complete! "Fang Yi said.

……

After two rounds of court defense, the presiding judge announced a 10-minute adjournment, and the verdict will be pronounced after the collegial panel deliberates.

Fang Yi took out the mineral water in his briefcase, drank a few swigs, then slumped on the chair, not wanting to talk or move, his brain was disconnected.

The people in the auditorium watched Fang Yi sitting on the defense bench, expressing his opinions verbally and verbally. During the trial, Fang Yi's brain continued to spin rapidly, responding to the prosecutor's allegations.When the presiding judge knocked down the gavel for the adjournment, Fang Yi felt his whole body relax, and a sense of fatigue surged up immediately.

Ten minutes passed in a flash, and the three judges of the collegiate panel entered the courtroom, and the presiding judge said: "Continue with the trial now, and ask the bailiff to bring the appellant Lu Chen to the courtroom.

The case has been judged by the collegial panel.In response to the opinions of the prosecution and the defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

... The appellant Lu Chen deliberately injured the body of the unlawful infringer in order to stop the ongoing illegal infringement. His behavior was justifiable self-defense, but his defense obviously exceeded the necessary limit, causing serious damage to the victim's death. His behavior constituted the crime of intentional injury , shall be given a mitigated punishment according to law.

Lu Chen and his defenders mentioned that Lu Chen's behavior was excessive self-defense, and the original verdict's appeal grounds and defense opinions that his sentence was too heavy were established and accepted.

Accordingly, in accordance with Article 180(230) of the "Criminal Procedure Law of the People's Republic of China" and Article 20(60), No.[-]([-]) and No.[-] of the "Criminal Law of the People's Republic of China", the judgment As follows: [-]. Revoke the criminal judgment of the Municipal Intermediate People's Court; [-]. The appellant Lu Chen committed the crime of intentional injury and was sentenced to five years in prison. "

(End of this chapter)