Determination of the subjective mentality of the perpetrator in cases of death caused by dangerous games

Original Deng Zihua Criminal Law Tan

Brief Facts of the Case:

Defendant Zhang Jing, female, born on September 15, 1992, is a migrant worker. Defendant Zhang Jing and victim Zhang Limin were both working in Cixi City, Zhejiang Province, and the two of them jointly rented at No. 14, Fu Jiaxing Second Lane, Chengzhong Village, Zhouxiang Town, Cixi City. At about 1 o'clock on August 13, 2012, Zhang Jing found a message that "strangling the neck with a rope will make people feel pleasure" when she was injured with her mobile phone, decided to try it with Zhang Limin, and prepared a nepotism as a neck reduction tool. Zhang Jing then wrapped the skirt around Zhang Limin's neck and strangled the neck with both ends of the skirt with both hands. In the meantime, Zhang Limin struggled and cried for help. The relatives, friends, neighbors and other people of the two heard the noise and knocked on the window outside to inquire, and Zhang Jing replied that Zhang Limin was talking in a dream. Later, Zhang Jing found that Zhang Limin had suffocated to death. He committed suicide by cutting his wrists, but failed. At about 8 o'clock on the same day, Zhang Jing woke up and called the police for help, and after being questioned by the police, she confessed her criminal facts.

Controversy:

There are two main opinions on the handling of this case, the first view is that the defendant should be convicted of (indirect) intentional homicide, and the second view is that the defendant should be convicted of causing death by negligence.

Jurisprudence Analysis:

The reason for claiming that the defendant established the crime of causing death by negligence is that the defendant had a harmonious relationship with the victim before the act, and there was no evidence to show that there was a contradiction between the two, so the defendant had no motive for killing; the basic fact of the occurrence of this case was a game, the defendant did not actively pursue the victim's death intention, and at the same time, according to the defendant's performance after the occurrence of the case, the defendant subjectively did not want it to happen to the victim's death result, and after the victim struggled and shouted, The defendant mistakenly believed that the victim was caused by excitement, so he did not terminate the game in time and wanted the victim to feel more pleasure, and accidentally caused the victim's death, which subjectively did not indirectly and deliberately allow the victim to die. It can only be argued that the defendant foresaw that his actions might cause the death of the victim, but credulity could be avoided, so it should be determined that the subjective mentality of the perpetrator was an overconfident negligence, and his behavior established the crime of causing death by negligence.

In fact, this case is not the first case of serious injury or death caused by a dangerous game. On June 30, 2012, Du Mou, who was only 13 years old in Xiajin County, Dezhou City, Shandong Province, was sprayed with an inflatable pump by Chen Mou and Zhao Mou, employees of the auto repair plant, and after hospital diagnosis, the victim's large and small intestines had more than 20 perforations and damages, and many organs were seriously damaged. In this case, after the first instance trial of the Xiajin County People's Court, the two defendants found that the two defendants were convicted of intentional injury, and sentenced them to fixed-term imprisonment of six years and five years and nine months, respectively, and jointly compensated the victims for various losses of more than 1.12 million yuan, and were jointly and severally liable to each other. After filing an appeal, the defendant argued that the defendant did not have the intention to harm the victim, but was just joking with him, which was a prank, and found that the crime of intentional injury was wrongly characterized. However, the intermediate people's court of Dezhou City, Shandong Province, rejected the appeal and upheld the original judgment.

In today's society, people seem to have more tools and ideas that they are not familiar with for productive life, and if they are not used properly, they may have serious consequences. How to determine the subjective mentality of the perpetrators in the dangerous game should not only be determined based on the defendant's statements and defenses, but more importantly, it should be based on other objective evidence in this case. Here it is necessary to simply define the dangerous game case, that is, the case in which there is no danger in the eyes of the perpetrator of the act, or although it is recognized that there may be a certain danger, it is believed that this danger will not occur, but the final harmful result still occurs, thus establishing a crime. In cases where dangerous games cause death or injury, one of the issues that is particularly difficult to grasp is the distinction and determination of indirect intentional and overconfident negligence, which is also the focus of dispute in this type of case. Because in the above two mentalities, the defendant foresees the occurrence of the harmful result, and the occurrence of the harmful result may or may not occur (this is different from the direct intention, if the harmful result is bound to occur, it can be directly identified as direct intention) and it seems that the defendant's subjective mentality cannot be distinguished by the probability of the occurrence of the danger.

Judging from the current general theory in the field of criminal law, indirect intentionality and overconfidence are mainly due to two differences: First, different attitudes towards the occurrence of results. In indirect intent, the defendant has an indifferent attitude towards the occurrence of harmful results, that is, the occurrence of the results is not against the defendant's wishes. However, in the fault of overconfidence, the occurrence of harmful results is against the will of the defendant, and the defendant subjectively does not want the results to occur. In this regard, in practice, there are difficulties in determining, because these subjective ideas are actually only known to the defendant himself, and we can only make a presumption of the subjective state of the defendant based on his objective behavior. However, in dangerous game cases, there is often a conflict of nature between the objective acts of the defendants, that is, as in this case, from the perspective of the defendant's conduct, the occurrence of the death result of the victim is at least laissez-faire, but from the perspective of the suicide after the crime, it is opposed to the occurrence of the death result of the victim. In our view, in the case of a conflict between the objective acts of such accuseds, the subjective state of the accused should be presumed on the basis of his or her specific performance at the time of the commission of the crime. Second, the prevention or blocking of the outcome is different. In indirect intent, the defendant did not intend to prevent the occurrence of the result, or although he claimed to have intended the result to occur, there was no corresponding basis in terms of objective behavior before and after the crime. In the case of overconfident negligence, the defendant had a well-founded and competent intention to prevent the occurrence of harmful outcomes, but for other reasons did not prevent it.

In this case, defendant Zhang Jing was aware of the dangers of this dangerous game. The defendant was nearly 20 years old at the time of the crime and had full identification and control. According to the general experience of society, it should have the common sense that nepotism and neck tightening can easily cause the death of the victim, in fact, Zhang Jing also mentioned in her confession that she is clear about the danger of the game. Moreover, if the defendant and the victim agree in advance that if they shout "help" if they can't stand it, the defendant will let go. However, after more than a minute of the game, the victim resisted and struggled, and began to shout "help", and his hands were also grabbing the defendant. At this time, the defendant did not stop the neck tightening behavior in accordance with the prior agreement between the two people, but believed that the victim's action at this time was caused by excitement, and in order to let the victim experience a longer period of excitement, he continued to exert force. As an adult, the defendant has the social discernment that an ordinary adult should have, and when the victim is struggling to call for help, the defendant should be able to rationally realize that the victim is breathless and extremely painful at this time, and if he does not immediately stop his behavior, the victim may suffocate and die. Moreover, the victim's struggle and resistance were so great that it led to the next-door neighbors and relatives and friends hearing the news. It should be assumed that the defendant was aware of the consequences of his actions that might result in the death of the victim.

So does the defendant have a laissez-faire mentality? Judgment is based on the above two criteria: First, the defendant did not stop his harmful behavior when the victim was struggling, resisting and calling for help, and in order to let the victim continue to experience "pleasure", he continued to strangle the victim's neck with a nepotism, and eventually led to the victim's mechanical asphyxiation death. Although the defendant's suicide act of cutting his wrist after the crime showed his inner guilt and opposition to the occurrence of the result, based on his objective performance in the process of committing the crime (the location of the blow, the time of the blow, the tools of the crime, etc.), it should be presumed that his mentality in the process of committing the crime was indirect intentional. Second, when the victim resists and struggles and calls for help, the defendant should be soberly aware that if his behavior continues to be carried out, it will cause the victim's death, but if there is a conditional suspension, he should continue to carry it out. Moreover, after the death of the victim, the defendant was not seen to seek help from neighbors, relatives and friends, or send the victim to the hospital for treatment, judging from this point, he did not intend to prevent the occurrence of the criminal outcome.

In summary, it is reasonable to identify the defendant's conduct as an indirect intentional homicide. However, at the same time, due to the special circumstances of this case, taking into account the circumstances in which the defendant surrendered voluntarily, the defendant admitted guilt and repented, and the defendant had reached an understanding agreement with the victim's family and obtained the victim's family's forgiveness, the court mitigated his punishment and sentenced him to seven years' imprisonment for intentional homicide, which was appropriate. In fact, in dangerous game cases, the occurrence of tragedies is often due to the common ignorance of the defendant and even the defendant and the victim, as well as disregard for life and health, generally occurs in the juvenile population, the defendant's plasticity is relatively strong, and the defendant often feels guilt and remorse for the occurrence of the result, subjectively compared with the general intentional homicide, intentional injury case malignancy is lighter, so the court should also fully grasp the sentencing, implement the criminal policy of combining punishment and leniency.

Case Source: Supreme People's Court Criminal Trial Reference, Episode 101, Guiding Case No. 1045.