Lawyer

Chapter 389 Chapter 404 405 (Merged Chapters) Why?Why?
"I went to the scene of the incident yesterday to see it, and it was consistent with the records in the case file. The road runs north-south, with asphalt pavement, a yellow dotted line painted in the center of the road, and a white solid line on the side. The markings are complete.

After the incident, the family members of the defendant Zeng Yu patched together and paid RMB 5000 in compensation.That's the whole facts of the case. " Lawyer Zhao introduced.

"Hey! My conscience is in a difficult situation. If Zeng Yu's family didn't have a mortgage and no pressure for their children to go to school, Zeng Yu might not have evil thoughts. It is said that the victim's family is not very good, otherwise he would not be living by picking up waste.

A car accident destroys two families. Lawyer Gao sighed.

"Attorney Gao and I accepted the entrustment of the defendant's family to defend Zeng Yu, but now our opinions are not very consistent, and we would like to hear your opinion." Attorney Zhao looked at Fang Yi and said.

"What did the procuratorate say?" Fang Yi looked at lawyers Zhao and Gao.

"The County People's Procuratorate charged Zeng Yu with a traffic accident and caused death, which constituted a crime of causing a traffic accident. I also think that Zeng Yu was a traffic accident and escaped, causing the death of the victim, but Lawyer Gao disagreed with me.

I'm not thinking very thoroughly for the time being, so I want to discuss it with you to see if I can come up with ideas. " Lawyer Zhao said.

"Let me talk about my opinion first. In my opinion, the procuratorate's accusation that Zeng Yu escaped and caused death cannot be established. There is no causal relationship between Zeng Yu's escape behavior and the victim's death. Even if the defendant Zeng Yu did not escape, the victim would have died. .

Because it is determined that the objective requirement of leaving the accident scene is necessary for traffic accident hit-and-run, and the defendant Zeng Yu did not leave the accident scene immediately after the first accident, and the victim did not die.

The victim died after being hit by a car. Therefore, this case cannot be identified as a traffic accident resulting in death.Just general traffic hit and run. " Lawyer Gao said.

After speaking, lawyers Gao and Zhao looked at Fang Yi, waiting for him to speak and express his opinion.

"Lawyer Zhao sent me the case file before. First of all, the traffic police determined that Zeng Yu was mainly responsible. This cannot be changed now. Secondly, according to the autopsy report and Zeng Yu's statement, he did hit someone, even though he did not die at the time. It was also seriously injured, so from this point of view, Zeng Yu constituted a crime of causing a traffic accident, I wonder if you two agree with me?" After Fang Yi finished speaking, he looked at Zhao and Gao.

"Well, we do not deny that Zeng Yu constituted a crime of causing a traffic accident. The focus of the dispute between Lawyer Gao and me is whether Zeng Yu counted as a hit-and-run that resulted in the death of the victim. This focal point is very important to Zeng Yu," said Lawyer Zhao.

"According to Article 130 of the "Criminal Law", whoever violates the traffic and transportation management regulations, thereby causing a major accident, causing serious injury or death, or causing heavy losses to public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; For other particularly vile circumstances, the sentence shall be between three and seven years in prison; if death is caused by escape, the sentence shall be not less than seven years in prison.

If it only constitutes the crime of causing a traffic accident and the death of the victim has nothing to do with Zeng Yu, then the defendant, Zeng Yu, should be subject to the first term of imprisonment of less than three years; Less than seven years; if the hit-and-run results in the death of the victim, Zeng Yu will face more than seven years in prison.

We want to hear from you. " Lawyer Gao said.

"When I was reading the case materials last night, I was also thinking about the same question. I think that the defendant Zeng Yu constituted the death due to escape in the crime of causing a traffic accident." Fang Yidao.

"Why? What's the reason?" Lawyer Gao immediately sat up straight, staring at Fang Yi and asked.

"First of all, according to Article [-] of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Traffic Accidents," 'death due to escape' refers to the perpetrator's escape from legal investigation after a traffic accident, resulting in Circumstances in which the victim died without assistance.

I understand that the basis for the aggravated punishment of 'fleeing after a traffic accident' is the failure to fulfill the obligations of calling the police and protecting the scene; and the basis of the aggravated punishment for 'causing death due to escape' is the failure to fulfill the duty of rescue.

According to the above-mentioned "Explanation", I have summarized the subjective and objective conditions for the determination of "death due to escape" into four:

[-]. Rescue duty of perpetrators
According to the provisions of Article No.70 of the "Road Traffic Safety Law", the perpetrator must stop immediately after a traffic accident to protect the scene; if personal injury or death is caused, the injured person should be rescued immediately and promptly reported to the traffic police on duty or the traffic management of the public security organ department.

It can be seen that protecting the scene of the accident, rescuing the wounded, calling the police and accepting the handling of the public security organs are the legal obligations that the perpetrator must fulfill.In addition, the perpetrators also have the obligation to rescue.

Judging from the case file materials in this case, the defendant drove an electric bicycle and collided with the victim walking in the same direction, knocking the victim down in the middle of the road. At the same time, the defendant Zeng Yu fell to the side of the road with his car, and then the defendant picked up the electric bicycle.

Although it was night at this time, there were still a lot of vehicles on this section of the road. After all, it was the main road to the county. The defendant, Zeng Yu, had every chance to move the victim to the side of the road or call for help, or stop passing vehicles. rescue, but it did not take any rescue measures.

It can be seen that the defendant knew that he had hit someone and had the ability to rescue him at that time.

[-]. The defendant fled and failed to fulfill the duty of rescue

In judicial practice, after a traffic accident, there are generally three common situations:

The first situation is that the perpetrator fled the scene regardless of the victim's injury in order to evade legal investigation, causing the victim's death due to lack of timely assistance. This situation constitutes 'death due to escape'.

The second situation is that the perpetrator sent the victim to the hospital, but after fulfilling the duty of rescue, the perpetrator escaped in order to evade legal investigation, and the victim died due to ineffective rescue. Does not constitute 'death by escape'.

The third situation is that the perpetrator hides or abandons the victim after taking the victim away from the scene of the accident, so that the victim cannot be rescued and dies or causes serious disability. Or be convicted and punished for the crime of intentional injury.

This case is quite special. The defendant Zeng Yu did not leave the scene immediately after the traffic accident, but after the second accident happened in the car behind, he concealed his identity and fled the scene.

In my opinion, whether it constitutes escape should not be understood mechanically, but should also be judged according to the subjective purpose and social harm of the defendant Zeng Yu.

First of all, in judicial practice, in most cases, escape is manifested as fleeing from the scene, but in reality there are various means and forms of "escaping", and the main problem is whether to evade legal investigation.

In judicial practice, hiding at the scene of the accident, falsely claiming not to be the perpetrator at the scene, or instigating or agreeing to be impersonated by others even though they are at the scene, the ultimate purpose of which is to conceal the identity of the perpetrator and evade legal investigation can still constitute "escape". .

Therefore, under certain conditions, even if the perpetrator does not flee the scene of the accident, it can constitute a traffic accident.

Secondly, judging whether it constitutes "escape" should also look at whether the perpetrator has fulfilled his legal obligations after the accident. Escape in "death due to escape" should focus on examining whether the perpetrator has fulfilled the duty of rescue if he has the ability to rescue.

According to the defendant's confession and case file materials, when the perpetrator of the vehicle behind questioned Zeng Yu, the defendant Zeng Yu concealed his identity as the perpetrator and fled the scene immediately. The defendant Zeng Yu's subjective intention was very clear. Just to avoid legal prosecution.

In essence, Zeng Yu's concealment is still a kind of escape behavior after a traffic accident. There is no essential difference between being on the scene and not being there, because no one will find that he is the perpetrator under the circumstances at that time.He is not under the control of the injured party or the accident handler.

Therefore, it can be determined that the defendant Zeng Yu belongs to the "escape" in "death due to escape".

[-]. The causal relationship between the defendant's escape and the victim's death
What is special in this case is the presence of an intervening factor (second collision).After the defendant bumped into someone, he knew that the victim was injured and could not save himself. As vehicles drove back and forth on the road at night, any normal person would foresee that the victim might be run over by the vehicle behind him at any time.

If the defendant, Zeng Yu, had fulfilled his duty of rescue in time after the incident, or protected the scene, the harmful result of the second collision would not have occurred, but at this time the defendant chose to escape and do nothing.

Therefore, I believe that the occurrence and intervention of the rear car crushing behavior was foreseeable by the defendant Zeng Yu, and it was also the result of his non-fulfillment of statutory obligations, and it was also his subjective pursuit.

Although the crushing behavior of the vehicle behind intervened in the causal relationship between the defendant and the victim, it did not constitute an abnormal intervening factor, which was expected.Therefore, the behavior of the following car accident cannot block the causal relationship between the defendant, the escape and the death of the victim.

To sum up, I believe that after the defendant Zeng Yu knocked down the victim, he had the ability and conditions to rescue him, but he failed to fulfill the statutory rescue obligation, deliberately concealed his identity, and attempted to evade legal investigation, which resulted in the victim being run over to death by the car behind him. The behavior of the defendant was death caused by escape after a traffic accident. "Fang Yi said.

"Lawyer Fang, is it possible for the defendant to commit intentional homicide?" Lawyer Zhao asked suddenly.He also thought of it on the spur of the moment, and when he remembered it, he asked.

"In my opinion, it does not constitute intentional homicide.

Article [-] of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents stipulates that if the perpetrator takes the victim away from the accident scene and hides or abandons it, he may be convicted of intentional homicide.

According to the above provisions, if the perpetrator hides or abandons the victim, or transfers it to a more dangerous area, so that the victim cannot get help and dies, or another crushing accident occurs, resulting in the death of the victim, the perpetrator's behavior constitutes the crime of intentional homicide.

In this case, the defendant did not move the victim's body, which did not comply with the provisions of Article [-] of the above-mentioned Interpretation.Moreover, according to the accident determination made by the traffic management department, the perpetrator of the second collision bears secondary responsibility and has certain faults. Therefore, the defendant's escape behavior does not constitute intentional homicide. "Fang Yi explained.

"Well, although the defendant Zeng Yu didn't say it clearly, judging from the whole case, he was deliberately pursuing the occurrence of the second accident. He wanted to blame others and escape legal sanctions.

In fact, what we can think of, prosecutors and judges should and are very likely to think of.In view of the fact that the defendant, Zeng Yu, truthfully confessed the facts of the crime after returning to the case, and has already paid part of the compensation in advance, I suggest a defense of misdemeanor. "Lawyer Zhao finished speaking and looked at Lawyer Gao.

"Well, I agree with Lawyer Zhao's opinion that the defense of misdemeanor in this case is the safest." Fang Yi said.

"Okay, the minority obeys the majority. But I reserve my opinion." Attorney Gao smiled and said, "Lawyer Fang, is it convenient for you to have a meal at night, my brother and I, you have taken care of this case."

The lawyer's fee for this case is not high, and two lawyers are jointly handling it, so lawyer Gao and Zhao lawyers made a total calculation before, since they invite others to discuss the case, and they don't pay labor fees, they have to pay for a meal anyway, and they can't do prostitution for free. Otherwise, you won't be able to speak again next time.

Fang Yi understood what the two of them meant, so he nodded and agreed. Drinking and eating are the best ways to enhance the relationship. Besides, I didn't go to bed until early in the morning yesterday, so eating a meal to compensate is not an advantage.

Gold, September and Silver October are not only the season of agricultural harvest, but also the season of mass consumption. Affected by the rising tide of consumption by the general public, the business of law firms has also increased.

Fang Yi stared at the business group every day and was busy collecting cases. After Ma Yi got on the line of Ouyang Jie, he was even more busy. According to Ouyang Jie's gossip, Ma Yi's handsome and handsome appearance made his Taking over the business has added a lot of advantages. Several female parties signed the entrustment procedures after meeting for the first time, and there was no bargaining involved.

However, in Fang Yi's view, the negative impact brought about by this is not small. Ma Yi's dark circles are becoming more and more obvious, and he is always breathing in the morning, as if he can't wake up.According to Ma Yi, this is the result of psychological counseling for clients every night.

On this day, Fang Yi had just returned from a meeting at the detention center when Ma Yi ran over in a jolt.

"Old Fang, I'll give you a case, can you do it?" Ma Yi laughed.

"What case? Could it be that the parties got divorced and got into a fight, right?" Fang Yi joked.

"No! But it does have something to do with the divorce. Let's go to the boss's office to talk." Ma Yi smiled.

The poor fat old man Wan Kefa has been in the hospital for treatment of alcohol dependence. Since Huang Yuanchao and Ma Yi gave him a hip flask that can be easily hidden, the old Wantou has been beautiful for a long time. The proprietress who went to visit him and his little daughter accidentally saw it.

Since then, the old Wantou has fallen into the abyss of "pain", and he can't drink a sip of wine, so he can only obediently cooperate with the treatment in the hospital.

(End of this chapter)