Lawyer's character

"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 rubbed his chin and thought for a while: "I agree with the charges determined by the prosecutor's office."

"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 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?" Lee Myung-bak asked.

“According to the provisions of Article 263 of the Criminal Law, the crime of robbery refers to the act of taking public or private property on the spot through violence, coercion or other methods.

According to the provisions of Article 293, Paragraph 1, Item 3 of the Criminal Law, those who forcibly take public or private property, if the circumstances are serious, shall be punished 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 taking things forcibly, both crimes are objectively manifested in the forced and illegal possession of public and private property. Disputes are very easy to arise in judicial practice. There are related cases among the cases handled by the team before. You can borrow the relevant case files when you have time.

Regarding how to distinguish the crime of picking quarrels and provoking trouble by taking forcible material from 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 "Opinions on Two Robbery", which clearly stipulates that behavior When people engage in provocative and troublemaking behavior, objectively speaking, it may also manifest itself as taking public or private property by force. The difference between this kind of forcible provocation and the crime of robbery is that:

First, subjectively analyze whether the perpetrator has the motive to provoke.

Robbery crimes generally involve illegal possession of public and private property as the criminal purpose, that is, illegal possession of public and private property is the ultimate purpose of the perpetrator.

The crime of picking quarrels and provoking troubles also has the subjective purpose of showing off one's strength, venting emotions, and seeking mental stimulation. The illegal possession of public and private property plays a secondary role in the subjective intention of the perpetrator.

Those who commit robbery crimes are usually more cautious than those who commit quarrels and provocations, so that they can quickly escape from the scene after committing the robbery crime.

As for those who are guilty of picking quarrels and provoking trouble, some people deliberately choose to commit crimes in public places, stay at the scene after committing the crime to show their prestige, or choose to commit multiple crimes in the same place 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 degree of violence and coercion used by the perpetrator from an objective behavioral perspective.

Although the Criminal Code does not stipulate the degree of violence required for robbery, it is generally considered to be sufficient to suppress the victim's resistance. In the crime of picking quarrels and provoking trouble, the degree of violence performed by the perpetrator is relatively weak and is generally not necessary to make the victim dare not 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.

Article 7 of the "Interpretation on Several Issues Concerning the Application of Laws in the Handling of Criminal Cases of Picking Quarrels and Provoking Trouble" jointly issued by the Supreme People's Court and the Supreme People's Procuratorate in 2013 also clearly stipulates that the conduct of picking quarrels and provoking troubles shall be consistent with the crime of picking quarrels and provoking troubles, intentional homicide, and intentional homicide. If the crime of injury, intentional destruction of property, extortion, robbery, robbery, etc. constitutes the essential elements, the punishment shall be based on the conviction and punishment of the crime with a heavier penalty. "Du Yong explained.

"Lawyer Du, I'm a little confused. According to what you just said, the two defendants in this case are indeed guilty of picking quarrels and provoking trouble. But will there be any imaginary conflict in this case? The defendants are also guilty of robbery. The court will directly convict and punish them according to the crime of robbery. ?" Li Mingbo looked at Du Yong doubtfully. He wants to take into account all possibilities.

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

The "Two Robbery Opinions" we just mentioned stipulate that for minors who use or threaten to use mild violence to rob a small amount of property, it is generally not appropriate to be convicted and punished for robbery. If his behavior meets 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 standards for conviction of minors who use or threaten to use minor violence to take small amounts of property, the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Minors" in 2006.

Article 7 of the interpretation stipulates that minor violence or threats may be used by people who have reached the age of 14 and are dissatisfied with the age of 15. It is not considered a crime to forcefully ask for a small amount of daily necessities or school supplies or money carried by other minors, and it does not cause the victim more than minor injuries or affect daily life or other harmful consequences. If a person who has reached 116 but is not 118 meets the circumstances specified in the preceding paragraph, it is generally not considered a crime. " Du Yong said.

"Oh? So, the defendant in this case may not be sentenced?" Li Mingbo thought. This may not be a good thing for the victim, but for the defender, this is a good opportunity, and 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 is about 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. However, there is still a certain distinction between minors and adults.

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

Even if an adult only threatens with a knife and does not actually use the knife to harm the victim, it should generally be deemed to have exceeded the scope of "minor violence" and seriously infringed on 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 actually hurts someone and 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.