Lawyer

Chapter 450 Chapter 490 491 492 (three in one) Debate them to death!
"The facts of this case have been investigated clearly, the court investigation is over, and the court debate is now beginning. 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.

Let the prosecutor speak first. " said the presiding judge.

"...Defendant Dou Tao beat others at will with a murder weapon. The circumstances were bad. His behavior constituted the crime of picking quarrels and provoking trouble, and he should be punished according to law. Since he truthfully confessed his crimes after he was brought to justice, and he actively compensated the victim for his economic losses, he obtained the victim's understanding.

We recommend that the defendant, Dou Tao, be sentenced to two years of confinement. "After the prosecutor finished speaking, he looked at the defendant's dock and said to himself: Since you don't accept the probation, then change the control.

(Article 30 of No. [-] of the "Criminal Law" stipulates that the period of control is not less than three months but not more than two years.

Sentencing and control can be based on the circumstances of the crime, and at the same time prohibit criminals from engaging in specific activities, entering specific areas and places, and contacting specific people during the execution period.

For criminals sentenced to public surveillance, community corrections shall be carried out in accordance with the law.

Those who violate the prohibition order stipulated in the second paragraph shall be punished by the public security organs in accordance with the provisions of the "Public Security Administration Punishment Law of the People's Republic of China". )
"Defendant Dou Tao defended himself," said the presiding judge.

"I don't think my behavior constitutes the crime of picking quarrels and provoking trouble..." Dou Tao went on and on, but pleaded not guilty.

"Defendant Dou Tao's defender issued a defense opinion." The presiding judge said.

"Presiding judge, judge: The defender believes that the defendant Dou Tao's behavior does not constitute the crime of picking quarrels and provoking trouble. The specific reasons are as follows:
In this case, the defendant Dou Tao contracted the wasteland in the village to plant fruit trees. After the contract expires, he enjoys the priority contracting right under the same conditions as agreed in the contract. If he does not explicitly waive the contracting right, the village committee should not take it back. The land is leased separately.

According to the evidence in this case provided by the public prosecutor, Dou Tao had voluntarily paid rent to the village committee many times, but the staff of the village committee refused for various reasons, resulting in Dou Tao not continuing to pay the rent.

Even if the village committee needs to take back the land, it should negotiate to compensate Dou Tao for the fruit trees and other ground objects planted.

After the incident, the subsequent contractor of the land voluntarily compensated the fruit trees and ground objects planted by Dou Tao. Dou Tao did not negotiate with Dou Tao on compensation matters before the release, and directly organized personnel to forcibly cut down fruit trees in the orchard to take back the land. This caused huge losses to Dou Tao.

After the contract expired, in order to lease the land to others, the village committee deliberately refused to collect the rent paid by Dou Tao, and used simple and rude methods to organize more than ten people to cut down fruit trees in the orchard, which caused conflicts between the two parties.Therefore, the village committee bears the main fault responsibility for the occurrence of this case.

At the time of the incident, Dou Tao's wife, Jiang Xue, was brutally controlled by security personnel, and the fruit trees in the orchard were cut down by the other party. Under such circumstances, in order to protect his legal property, Dou Tao drove away the relevant personnel with a kitchen knife and slightly injured one person. .

The defendant, Dou Tao, subjectively did not meet the constitutive requirements of the crime of seeking quarrels and provoking trouble, such as seeking excitement, venting emotions, flaunting arrogance, making trouble out of nothing, and making trouble with excuses, so it cannot be determined as "assaulting others with a murder weapon at will."

Moreover, Dou Tao did not hold a knife to intercept the personnel sent by the village committee to evacuate the orchard, so it cannot be identified as "provoking trouble for a reason" type of behavior of picking quarrels and provoking trouble.

In summary, the defender believes that Dou Tao's behavior does not constitute the crime of picking quarrels and provoking trouble.Ask the court to acquit the defendant, Dou Tao.complete! "Fang Yi said.

It may be that the case is not complicated. Both the prosecution and the defense have fully expressed their defense opinions. The presiding judge did not allow the prosecution and defense to defend each other after Fang Yi had finished expressing his defense opinions.

……

"The case of the defendant Dou Tao who was prosecuted by the county procuratorate, the collegial panel has heard the trial, conducted court investigations and court debates, and heard the allegations of the public prosecutor, the opinions of the defendant, the defense of the defendant, the statement and the defense of the defender. Opinion, the court hearing is over.

Now the court is adjourned for 10 minutes, and the collegial panel will make a deliberation and pronounce the sentence in court. After the presiding judge sounded the gavel, the members of the collegiate panel withdrew from the courtroom.

……

Twenty minutes later, Jiang Xue was sitting in the auditorium, a little out of her wits.The voice of the presiding judge reading the verdict echoed in her ears.

The court held that the defendant Dou Tao beat others at will, the circumstances were bad, his behavior constituted the crime of picking quarrels and provoking trouble, and should be punished according to law.Given that it has the circumstances of a lighter punishment according to law.In accordance with Article 290, Paragraph [-], Item [-], Article [-] of the "Criminal Law of the People's Republic of China," the verdict: Defendant Dou Tao committed the crime of picking quarrels and provoking trouble, and was sentenced to one year and six months of confinement.

The control was carried out outside the prison and community corrections were carried out, so Dou Tao was not sent to the detention center after the verdict was pronounced.

Zhou Ying, who was sitting next to Fang Yi, felt aggrieved. In her opinion, Fang Yi defended very well and everything was explained clearly. How could the court still make such a judgment.

The court sentenced him to one year with a one-year reprieve, but now he is directly sentenced to one year and six months of confinement, which is also carried out outside prison, and is also supervised by the police station and the community, but the term has been extended by six months. What does this mean? !
But after thinking about it again, she suddenly understood that the prison term is counted from the day the judgment is executed, and if the person is detained before the judgment is executed, one day in custody is equivalent to two days of the sentence.Dou Tao has been detained for a period of time before, and the discount is deducted. In fact, the actual period of control is only one year, which is equivalent to changing the soup without changing the medicine. High, it is really high!

"Lawyer Fang, this..." Dou Tao walked up to the defense bench and looked at Fang Yi.He is very dissatisfied with the court's decision, and this matter is related to his own reputation, so it is a big deal.

"Appeal, there is only one way to appeal." Fang Yi said firmly.

He was very surprised by the court's decision. He was sentenced to probation before, but was remanded by the second-instance court for retrial. Now the sentence has been changed to public surveillance. This is not a question of sentencing at all, but a question of unclear facts and improper conviction.

"Is it possible to appeal? Will it be sent back for retrial?" Jiang Xue walked over, wondering whether the middle-aged male lawyer in front of her was trying to frame her own legal fees, and her eyes were full of distrust. Light.

"According to Article 230 of the Criminal Procedure Law, if the people's court of second instance finds that the facts of the original judgment are unclear or the evidence is insufficient, it may rule to revoke the original judgment and send it back to the original people's court for a new trial.

After the original people's court makes a judgment on a criminal case remanded for retrial, if the defendant files an appeal, the second-instance people's court shall make a judgment or ruling according to law, and shall not remand the case to the original people's court for retrial.

According to the above regulations, remand for retrial can only be carried out once. If Dou Tao appeals, the intermediate court can only conduct a trial and cannot be remanded for retrial. "Fang Yi thought for a while and explained.

"Then..." Just when Jiang Xue was hesitating, Dou Tao said: "The appeal, we can't just let it go."

"Okay, I've prepared the appeal in the past two days. After the criminal judgment is issued, I will submit the appeal to the court." Fang Yi said.

"The lawyer's fee..." Jiang Xue asked.

"The lawyer's fee for the second trial is 3 yuan. I'll give you a discount." Fang Yi said.

Jiang Xue was willing to bargain, but Fang Yi had already said that this was a discounted price, and she couldn't lower the price any further. After all, the second trial had to be done by others, and lawyer Fang couldn't be offended.

"Okay, you prepare the contract. I will ask Jiang Xue to go to you to go through the entrustment procedures in the past few days." Dou Tao is now going all out, and for his own innocence, he is going to sue to the end.

A few days later, the county court's criminal judgment was issued, and the day after receiving the criminal judgment, Fang Yi submitted an appeal letter and entrustment procedures to the county court.

After learning that the case file had been transferred to the Intermediate People's Court, Fang Yi took Zhou Ying to the Municipal Procuratorate to discuss the facts of the Dou Tao case, but the prosecutor Wang who was in charge of the case seemed to be unimpressed by Fang Yi's opinion, and Fang Yi and the two left a lawyer's opinion. After that, he returned to the law firm.

After lunch, Fang Yi and Zhou Ying returned to the office and sat opposite each other.Zhou Ying chatted: "Lawyer Fang, do you think there is hope for a second trial in this case?"

"There is always hope, but it may not be easy to realize. Now we can only pin our hopes on the judge of the second instance. This is called doing everything according to fate. Luck is the most difficult thing to figure out, and it is also the most magical.

What... are you discouraged? "Fang Yi looked at her.

"No, I just feel a little uncomfortable. I lost the first case." Zhou Ying pouted.

Fang Yi smiled: "You are only half right. We only lost the first trial, and there is still hope for a comeback in the second trial. You must have firm beliefs. Faith is also a kind of power, and sometimes it will affect your behavior, and then affect the result. "

Having said that, Fang Yi actually has no idea.

"Really? I feel much more comfortable after you said that. I'll investigate the case now and prepare for the second trial." Zhou Ying said with bright eyes.

"By the way, I have an interview at the detention center tomorrow morning, do you want to go?" Fang Yi smiled.

"Go, I haven't been to the detention center yet, I'll go and see it with you." Zhou Ying smiled.

Half a month later, the second trial of Dou Tao's case of picking quarrels and provoking troubles opened.Jiang Xue was the only one in the auditorium.

Fang Yi and Zhou Ying sat on the defense bench and listened to the judge sitting above reading the verdict of the first instance.On the public prosecutor's bench, two male prosecutors were writing something, and the one sitting at the top was Wang, whom Fang Yi had met before.

"Next, the appellant, Dou Tao, will read out the appeal first." The presiding judge said confidently.

Dou Tao, who was sitting in the defendant's seat, took out the petition and read it according to the script.

"The appellant's defense lawyer announced the reasons for the appeal." After the presiding judge finished speaking, he looked at Fang Yi.

"The presiding judge and the judges: the defender believes that the facts determined by the court of first instance were unclear and the law was improperly applied. The appellant did not constitute the crime of picking quarrels and provoking trouble, and should be deemed to be self-defense. The reasons for the appeal are as follows:
First, the actions of the appellant belonged to self-defense.

After the expiry of the land contract, the appellant negotiated with the village committee on the renewal of the land contract many times, and asked to pay rent, but the village committee rejected the appellant's request for various reasons.

Afterwards, the village committee asked the appellant to return the land, and sent more than ten people, including security guards and Zhang Dabao, to the appellant's orchard to forcibly cut down the peach and apple trees he had worked so hard to plant.

In order to protect her legal property, the appellant's wife stepped forward to stop the other party's behavior, but was pulled aside by the security guards, ordered to squat down, and punched her.Zhang Dabao and others began to cut down fruit trees.

In order to protect his legal property and the safety of his wife, the appellant brandished a kitchen knife to drive away the security guard, Zhang Dabao and others. His actions belonged to self-defense, not beating others at will.

Second, the appellant's behavior did not meet the constituent elements of the crime of picking quarrels and provoking trouble.

At the time of the incident, the security guards and temporary employees sent by the village committee broke into the land contracted by the appellant, and first injured people and destroyed the property in the orchard.

Subjectively, the appellant did not have the intention to commit the crime of picking quarrels and provoking troubles, and objectively, there was no fact of picking quarrels and provoking troubles, so it should not be determined to constitute the crime of picking quarrels and provoking troubles.

Third, the appellant's behavior is not harmful and should not be investigated for criminal responsibility.

The appellant, Dou Tao, held the kitchen knife mainly to drive away the security guards and Zhang Dabao and others who broke into the orchard. In the process, Zhang Dabao was injured because of his carelessness.

After Zhang Dabao was hacked, the appellant did not continue to beat Zhang Dabao, nor did he chase and intercept the retreating people. His behavior was not harmful, and Zhang Dabao's understanding had been obtained, so he should not be held criminally responsible.

In summary, the defender believes that the appellant, Dou Tao, does not constitute the crime of picking quarrels and provoking trouble, and asks the court to acquit him in accordance with the law.complete. "Fang Yi said.

"Appellant Dou Tao, do you have any objection to the facts and charges identified in the first-instance verdict?" asked the presiding judge.

"I have an objection. I do not agree with the facts and charges found in the first instance. It was the village committee who sent security guards, Zhang Dabao and others to break into my orchard first, and then they beat and kicked my wife and cut down my fruit trees. I used a kitchen knife to scare them, and I was in self-defense. As for the matter of cutting Zhang Dabao, it was purely accidental..." Dou Tao argued.

"Next, the prosecutor will question the appellant about the facts found in the first-instance verdict," said the presiding judge.

Prosecutor Wang's questions were not much different from those asked by the prosecutors of the county procuratorate in the first instance.Then Fang Yi also questioned the appellant, and the content of the questions was similar to that in the first instance, so I won't repeat them here.

"The next step is to present and cross-examine evidence. Do the prosecutors, defenders, and appellants have any new evidence to submit?" asked the presiding judge.

"No." All three said.

……

"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should focus on determining charges, sentencing and other controversial issues.

Let the appellant, Dou Tao, speak first. " said the presiding judge.

"The presiding judge, the judge, I think my actions were justifiable self-defense, not provoking trouble..." What Dou Tao said was still the content of the appeal.

After asking him if he had any new opinions, the presiding judge decisively stopped his speech.

"The defender of the appellant Dou Tao made a statement," said the presiding judge.

"The presiding judge, the judge:

According to the provisions of Article No. 20 of the "Criminal Law", 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 harm to the illegal infringer. Any damage is a legitimate self-defense and shall not be held criminally responsible.

The defender believed that the defendant Dou Tao's behavior complied with the above-mentioned legal provisions and should be deemed as self-defense and did not constitute the crime of picking quarrels and provoking trouble.The reasons are as follows:
[-]. At the time of the incident, the defendant, Dou Tao, was facing actual illegal infringement.

1. The purpose of the village committee to forcibly take back the land is improper.

According to the stipulations in the land contract, the appellant, Dou Tao, enjoys the preferential contracting right under the same conditions after the expiration of the contract.However, according to the evidence in the case, the village held a meeting of the two committees and the villagers' representative meeting, and it was obviously inconsistent with the fact that Dou Tao had not paid the land contract fee.

On the premise that the appellant, Dou Tao, did not explicitly waive the right to contract, the village committee took back the land it had contracted and leased it to others, which was an improper purpose.

2. The procedure of the village committee to forcibly take back the land is improper.

The land contract signed by the village committee and the appellant Dou Tao did not stipulate the disposal of the aboveground objects after the expiration of the term, but the village committee had issued a certificate that the aboveground objects on the contracted land were the legal property of the appellant.

If the village committee needs to take back the land, it should negotiate with the appellant, Dou Tao, about compensation for the above-ground objects.If the negotiation fails, both parties shall resolve the matter through litigation.

Returning to this case, the village committee did not communicate with the appellant on the compensation of the above-ground objects before taking back the land, nor did it solve the problem through judicial channels, but only informed the appellant to return the land in the form of a notice. The two parties failed to reach an agreement, and the village committee appointed security guards and temporary employees to forcibly cut down the fruit trees, causing the appellant Dou Tao's legal property to be violated, and his wife was forcibly controlled by the security guards during the blocking process.

Therefore, the action of the village committee is illegal and constitutes illegal infringement.

[-]. The defense of the appellant Dou Tao against the ongoing illegal infringement is objectively urgent.

"Ongoing illegal infringement" stipulated in Article No. 20 of the "Criminal Law" refers to the illegal infringement that has begun and has not yet ended, and is in the process of being implemented.

In this case, the temporary employee Zhang Dabao and other personnel broke into the appellant's orchard and began to cut down the fruit trees. The appellant's wife stepped forward to stop her, but was dragged aside by the security guards and forcibly controlled.

In this case, the appellant, Dou Tao, held a kitchen knife to drive away the intruder, with the purpose of stopping the ongoing illegal activities and protecting the legal property of his wife and his family. The urgency requirements in the elements.

[-]. The appellant Dou Tao is subjectively justified.

In the theory of criminal law, the actor who implements self-defense should have a sense of defense.Defense awareness includes: 1. The perpetrator is aware of the occurrence and ongoing illegal infringement; 2. The purpose of the perpetrator is to protect the country, public interests, the person, property and other rights of himself or others from ongoing illegal infringement.

In this case, the appellant, Dou Tao, voluntarily demanded to pay the land contract fee after the contract period expired, but was rejected by the village committee for various reasons.When the appellant, Dou Tao, did not expressly waive the right to contract, and the village committee did not negotiate with Dou Tao on the compensation of the fruit trees in the orchard, the village committee sent people to the orchard to cut down the fruit trees, which violated Dou Tao's legal property.

In the face of illegal infringement, if the appellant Dou Tao does not take defensive measures, his legitimate rights and interests will suffer huge losses, so Dou Tao's awareness of defense is justified.

[-]. The defensive acts carried out by the appellant Dou Tao were only aimed at the unlawful infringer.

According to the provisions of Article No. 20 of the "Criminal Law", justifiable self-defense must be carried out against the unlawful infringer who is in the process of unlawful infringement.The purpose of justifiable defense is to stop the ongoing illegal infringement.

In this case, in order to protect his legal property, the appellant, Dou Tao, had to use a kitchen knife to drive away the unlawful intruder who broke into his orchard and forcibly cut down the fruit trees. The victim Zhang Dabao was one of the unlawful infringers.

It can be seen from this that the object of the appellant Dou Tao's defensive behavior is the unlawful infringer, not innocent passers-by or the masses.

[-]. The behavior of the appellant Dou Tao is not excessively defensive.

Excessive defense generally includes two aspects. On the one hand, the defensive behavior of the perpetrator obviously exceeds the objective needs of defense. In comparison, the loss caused by defensive behavior is too great.

In this case, the actions of the appellant Dou Tao only caused minor injuries to the unlawful infringer Zhang Dabao. Compared with the possible heavy property losses suffered by the appellant Dou Tao, his defensive behavior did not obviously exceed the necessary limit, nor did he cause major damage to the other party.

To sum up, the defender believes that the actions of the appellant Dou Tao belong to self-defense and do not constitute the crime of picking quarrels and provoking trouble.In addition, the defender believes that the characterization of this case as justifiable defense helps to highlight the value orientation of the law and cultivate a good social morality.Please the court judge according to law, over! "Fang Yi said.

"Now it's up to the prosecutor to speak." The presiding judge said.

"Presiding judge and judges: We believe that the facts identified by the court of first instance are clear, the evidence is solid and sufficient, and the conviction and sentencing are appropriate. We ask the court to reject the appellant's claim in accordance with the law," Prosecutor Wang said.

"The prosecutor can respond to the defender's defense opinion." The presiding judge said.

"In response to the defender's defense, we mainly express the following points of view:

We believe that the actions of the appellant did not constitute a justifiable defense.

After the land contract expired, the two parties failed to reach an agreement on renewal. Since then, the appellant Dou Tao has occupied the land for a long time for two years and has not paid the land rent. His behavior has violated the interests of the village collective.During the process of the village committee taking back the land, Dou Tao beat the security guard with a kitchen knife and chopped Zhang Dabao into minor injuries.

According to the provisions of Article 290 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Picking Quarrels and Provoking Troubles, whoever beats others at will and disrupts social order under any of the following circumstances shall be deemed as Article [-] of the Criminal Law: The "bad circumstances" stipulated in the first item of the first paragraph, ... ([-]) randomly assaulting others with a murder weapon ...

The appellant Dou Tao beat others at will with a kitchen knife, causing minor injuries to one person. According to the "Criminal Law of the People's Republic of China" and the above-mentioned judicial interpretation, his behavior has constituted the crime of picking quarrels and provoking trouble.Therefore, the charges and sentencing determined by the court of first instance were appropriate.complete. "Prosecutor Wang said.

"The defender can respond to the prosecutor's opinion." The presiding judge said.

Sitting next to Fang Yi, Zhou Ying was unable to speak during the trial, and could only secretly cheer Fang Yi up: Lawyer Fang, come on, defend them to death.

"Based on the Prosecutor's defense opinion and response, the defender issued the following defense opinion:

The defender believed that the appellant, Dou Tao, did not occupy the collective land of the village. After the land contract expired, the appellant approached the village committee to discuss the renewal of the contract, but failed to reach an agreement. After that, the village committee did not request Dou Tao Tao returned the land, and Dou Tao approached the village committee several times to ask for rent payment, but was rejected by the village committee.

In October last year, the village committee notified Dou Tao in writing to return the land, but did not mention compensation. Dou Tao believed that the fruit trees in the orchard belonged to his personal property, and the village committee should give some compensation for returning the land (in fact, according to the village committee Council, the subsequent lessee negotiated with Dou Tao, and the subsequent lessee compensated Dou Tao for the fruit trees and other ground objects in the orchard), but the village committee sent people to try to forcibly cut down the fruit trees and take back the land.

Defenders believe that Dou Tao's behavior does not constitute picking quarrels and provoking troubles, nor does it conform to the provisions of Article [-], Item [-] of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Picking Quarrels and Provoking Troubles: "Beating others at will with a weapon 'Case.

Article 290 of the above-mentioned judicial interpretation stipulates that if an actor seeks excitement, vents his emotions, acts aggressively, etc., and makes trouble out of nothing, and implements the behavior stipulated in Article 290 of the Criminal Law, it shall be determined as "picking quarrels and provoking trouble."Where an actor commits an act specified in Article [-] of the Criminal Law by making troubles due to occasional conflicts and disputes in daily life, it shall be determined as "picking quarrels and provoking troubles", provided that the conflict was deliberately caused by the victim or the victim bears the main responsibility for the intensification of the conflict except.

According to the above-mentioned judicial interpretations, it can be seen that to determine whether the appellant Dou Tao in this case constituted the crime of picking quarrels and provoking trouble, we must analyze it from both subjective and objective aspects.Not only must the situation stipulated in the above-mentioned judicial interpretation be met objectively, but subjectively, the perpetrator should also have the intention to make trouble out of nothing or make trouble out of nothing, such as seeking excitement, venting emotions, and being aggressive.

In this case, the village committee sent people to break into the appellant Dou Tao's orchard, forcibly felled the fruit trees, violated the appellant's legitimate rights and interests, and intensified the conflict between the two parties. The village committee should bear the main responsibility.

Therefore, the appellant Dou Tao's behavior was justified, subjectively, he did not have the intention of making trouble out of nothing or making trouble out of nothing, and should not constitute the crime of picking quarrels and provoking trouble.complete. "Fang Yi said.

……

(End of this chapter)