Consideration of the application of probation in cases of serious injury

Author: Huang Jiangnan Sanmen County People's Court of Zhejiang Province

Source: People's Justice No. 14, 2021 (Cases)

Summary of the Trial

Whether or not a suspended sentence is applicable in a serious injury case should be comprehensively considered in light of the circumstances of the crime, the risk of recidivism, and the core values of socialism. The circumstances of the crime should be comprehensively considered from the perspective of the motive, means, consequences, and impact of the crime, and the risk of re-offending should be evaluated from the two aspects of the danger of the act and the danger of the perpetrator. It is even more necessary to combine the harmonious socialist core values and the guidance of the rule of law, implement the criminal policy of blending leniency and severity with the concept of prudent and modest justice, and consider the unity of legal and social effects, so as to decide whether to apply probation.

□ Case No. 1 Trial: (2020) Zhejiang 1022 Xingchu No. 29

Facts of the case

Public prosecution organ: Sanmen County People's Procuratorate of Zhejiang Province.

Defendant: Chen Zesheng.

After trial, the Sanmen County People's Court ascertained: On December 13, 1997, the victim Ren X came to the rental house of defendant Chen Zesheng, and the two quarreled over trivial matters. In the meantime, the defendant casually picked up a shot ball in the house and smashed Ren's head. The defendant's wife voluntarily sent the victim to the hospital for treatment that night. After appraisal, the victim Ren X constituted serious injuries.

On the night of the crime, the defendant chose to abscond. The police opened the case and approved the arrest (at large) of the defendant in July 1998. The defendant absconded for 22 years until september 2019, when he voluntarily surrendered and was released on bail pending further investigation. After the defendant arrives at the case, truthfully confess the facts of the crime, compensate the victim for economic losses, and obtain forgiveness. It was also found that the defendant did not do other illegal and criminal acts during the absconding period, his son chose to commit suicide because his father was suffering from depression when he fled, and his wife also chose to live lightly, and neither of them had contact with the defendant before his death. The serious injuries of the victim Ren have recovered.

Judgment

After trial, the Sanmen County Court held that defendant Chen Zesheng intentionally injured the body of another person and caused serious injury, and his conduct constituted the crime of intentional injury. Where there are circumstances of voluntary surrender and admission of guilt and acceptance of punishment, a lenient punishment is given in accordance with law; if economic losses have been compensated and forgiveness has been obtained, a lenient punishment is given as appropriate. This case is an act of instantaneous injury caused by an extreme crime, and there is no other bad social impact, and the comprehensive examination decides to apply a suspended sentence to him. In accordance with the provisions of the second paragraph of article 234, the first paragraph of article 67, the first paragraph of article 72, and the first paragraph of article 72 of the Criminal Procedure Law, the Three Doors Court ruled that defendant Chen Zesheng committed the crime of intentional injury and sentenced him to 3 years' imprisonment with a 4-year suspended sentence.

After the first-instance judgment was pronounced, the defendant did not appeal, the prosecutor did not protest, and the case took effect.

Comments

The main point of contention in this case is whether a suspended sentence can be applied in a case of serious injury in which the defendant has absconded for many years. One view is that absconding and the consequences of the injury are so serious that it is not appropriate to impose a suspended sentence; the other view holds that if, after considering the circumstances of the crime and the expression of remorse, it is determined that the defendant is not in danger of committing another crime, a suspended sentence may be applied.

I agree with the second view. The consequences of serious injury are not equivalent to the serious circumstances of the crime, and whether or not to apply a suspended sentence should be considered comprehensively. First, the circumstances of the crime should be comprehensively considered from the perspective of the motive, means, consequences, and social impact of the crime. Secondly, whether there is a risk of re-offending should be evaluated in terms of both the risk of the act and the danger of the perpetrator. Third, in combination with the core values of socialism in our country, harmony requires people to view disputes and contradictions in a relatively lenient manner, and the rule of law guides criminal policies that combine leniency and severity with prudent and humble judicial concepts, comprehensively considering the unity of legal and social effects, so as to decide whether to apply probation. Specifically:

1. Examination of the circumstances of the crime

One of the conditions for the application of probation is that the circumstances of the crime are relatively minor. In the evaluation of the circumstances of the crime, in addition to considering the sentencing circumstances provided for in the criminal law sub-provisions or judicial interpretations, it is also necessary to examine whether there are special facts and bases in the individual cases that support the choice of the method of enforcement of the lighter punishment. The consequences of serious injury are not equivalent to the serious circumstances of the crime, and the defendant's criminal motives, means, consequences, and impacts should be comprehensively analyzed.

First, about the motives and means of committing crimes. The motive for committing a crime refers to the internal causes and ideological activities that stimulate and prompt the offender to commit a criminal act, and its internal conditions are needs and desires, and the external conditions are inducements and stimuli; the means of committing a crime refer to the specific methods used when committing a crime. According to the investigation, the defendant in this case rarely quarreled with people, and in the process of arguing with the victim over such a trivial matter as bicycle theft, he impulsively picked up a lead ball and smashed the victim. The defendant did not deliberately commit a crime, is a first-time offender or an occasional offender, and as illiterate or legally illiterate, commits an instantaneous injurious act in an excessive crime, it can be evaluated that he committed an impulsive crime under special inducements and stimuli, and it should be determined that his subjective malignancy is not deep and the means of committing the crime are average.

Second, on the consequences and effects of crime. After the victim was smashed, the defendant's wife immediately sent the victim to the hospital for treatment that night, and the victim's left temporal top and left temporal bone injuries were healed, and there was no other impact on the victim's life. During the defendant's absconding period, his son committed suicide because his father was suffering from depression, and his wife was also born lightly, and neither of them had contact with the defendant before his death. In addition to causing the defendant's own family tragedy, this case did not bring other bad social impacts, and since the defendant surrendered himself, he had compensated the victim for economic losses and obtained forgiveness, and it could be determined that the consequences and impact of the crime were relatively minor.

Therefore, a comprehensive examination can lead to the conclusion that the circumstances of the crime in this case are relatively minor.

Second, the evaluation of whether to re-offend

To examine whether the offender is at risk of re-offending, a double evaluation should be made based on the danger of the act and the danger of the perpetrator. The risk of the act refers to the possibility or generality of the infringement of legal interests, and its evaluation system includes the danger of the criminal act and the danger of the secondary criminal act; the danger of the perpetrator refers to the personal danger, that is, the possibility of the offender committing the crime and the possibility of the person with a previous conviction to re-offend, and the evaluation includes the history of the crime and the prediction of the dangerous psychological tendency.

The details are as follows: 1. The risk assessment of the criminal act, including the evaluation of the motive of the crime, intentional or negligent, impulsive or professional offender, etc.; 2. The risk assessment of the second criminal act, including whether it is a single or accomplice, whether there are circumstances such as voluntary surrender, admission of guilt and acceptance of punishment; 3. The evaluation of the history of violations and crimes, including whether there is a previous criminal record, experience in re-education through labor, etc.; 4. The evaluation of dangerous psychological tendencies, including education, whether it is unemployed or dropped out of school, whether it is involved in drugs, and whether it supports an anti-social lifestyle.

First, the defendant in this case, Chen Zesheng, did not deliberately commit a crime, but because it was impossible or did not commit an impulsive crime after careful consideration, and was not a tendency or professional criminal in the criminal law. Committing instantaneous injurious behavior in the extreme crime of fighting can be said to be an impulsive crime committed under special and almost non-repetitive circumstances. Second, the defendant voluntarily surrendered and admitted guilt and punishment, took the initiative to repair the damaged social relations, and strongly desired to be reborn after losing his citizenship for more than 20 years, it can be speculated that the risk of his secondary criminal behavior is low. Third, the defendant has no previous criminal record, and has not committed other illegal or criminal acts in more than 20 years, and meets the requirements of probation without a history of violations and crimes. Fourth, according to the investigation, the defendant is currently a worker in a factory in Guangdong, has a legitimate occupation, and has no anti-social behavior or cult beliefs, etc., which can be predicted that he has the basis for pursuing a stable and active life, and has a less dangerous psychological tendency.

In summary, it can be inferred that the defendant is less likely to re-offend.

Third, the development of core values

The core values of socialism include harmony and the rule of law, harmony requires people to look at disputes and contradictions that have occurred with a relatively lenient attitude, and one of the basic concepts of the rule of law is respect for people, any law is designed for people, and the application of punishment is too harsh, which is not conducive to people establishing the concept of respect for people. The socialist concept of the rule of law and the humble spirit of the criminal law require that if a lighter punishment can be applied to achieve the goal, there is no need to apply a heavier punishment. When handling cases of intentional injury, judicial personnel should conduct restorative justice between the perpetrator and the victim, and while compensating the victim to make up for their psychological trauma and punishing the defendant to bear the consequences of his or her actions, it is even more necessary to guide the defendant to return to society, so as to achieve the purpose of preventing secondary crimes.

First, on the question of whether social contradictions have been alleviated. Although the Criminal Law stipulates that cases that have already been filed and investigated are not subject to the limitation of the time limit for prosecution if they are to evade investigation, and if the defendant in this case is not limited by the time limit for prosecution, in practice the law cannot be applied mechanically, but the meaning behind a system should be examined. The significance of the statute of limitations system is to avoid citizens from falling into the fear of being prosecuted for a long time, and to consider that social conflicts have eased and the perpetrators have improved. One of the logics of the criminal law's 20-year statute of limitations for crimes with maximum sentences of life imprisonment and the death penalty is that after 20 years, if the perpetrator has not committed another crime, it means that he has carried out self-reform and no longer needs to accept the punishment of punishment.

This case is an impulsive crime caused by trivial matters, and the victim's injuries have been healed for many years without any other impact on him. Many years later, when the victim received compensation, he expressed the hope that the court would give the defendant an opportunity to reintegrate into society, on the basis of which it can be inferred that the social conflicts caused by the crimes of the parties have been alleviated. Moreover, the perpetrators have not committed any further crimes in the past 20 years, and it can be assumed that they have improved. During the absconding, the defendant lives a life of losing his citizenship and rights, and has been avoiding the family, and missed the opportunity to see his wife and children for the last time before they die, but in the end he can choose to voluntarily surrender himself, actively compensate for the losses, etc., and show his sincere remorse, deep self-remorse, and willingness to take the initiative to be punished with specific behavior, and can determine that the defendant has a negative evaluation of his criminal behavior and admit guilt and accept punishment.

Second, the consideration of the resocialization value of the probation system. The suspension system is a system in which the suspension of the execution of the sentence or the non-enforcement of the original sentence is accompanied by certain conditions under the guidance of the spirit of harmony and the rule of law, as well as the value orientation of resocialization. It not only shows the negative evaluation of the criminal act, but also reflects the leniency of the criminal, and gives the criminals the opportunity to reform themselves on the basis of maintaining the validity of the original sentence, which is conducive to promoting the resocialization of the criminals. Whether it is a prison sentence or a suspension of supervision and education, the ultimate goal is to prevent criminals from re-offending citizens and to warn others not to repeat the mistakes of the past. It is true that causing criminals to bear certain deprivational pain is indeed the punitive nature of punishment and is also an intrinsic nature, but criminal justice should focus more on awakening and strengthening people's loyalty to the law, trust in the existence and implementation of the legal order, so as to achieve a general preventive effect. Actual detention is the imprisonment of criminals in an environment that is divorced from normal social life, and there may be obstacles to resocialization for some criminals. The probation system does not imprison convicts, and conducts supervision and investigation without affecting their normal social life, which is conducive to the socialization of criminal punishment.

Combined with this case, if another sentence is imposed, it may leave in the mind of the criminal the impression that the state and society are too harsh on themselves, which is not only not conducive to reform, but even causes them to have an anti-state and anti-social psychology. The judiciary wants to separate itself from barbaric revenge, and there should be a distinction between revenge and retribution. The imposition of a suspended sentence can already make the defendant feel that he deserves to be guilty and thus rehabilitate, and then the special preventive effect has been achieved.

In summary, the circumstances of the crime in this case are relatively minor, the convict has shown remorse, and there are objective conditions for supervision and reform, and it is declared that the suspended sentence has no major adverse impact on the community, so the suspended sentence is applied. The court's decisions have achieved a uniformity of legal standards and judicial temperatures, which is appropriate.

Submissions are reproduced for illustration

Submission email: [email protected]

This public name is not a non-profit and does not pay remuneration

Submission of the article shall be deemed to be an agreement to the reprinting and publication of the article under this public account