【Basic Facts】
At 10:50 on December 15, 2018, Defendant A parked the XX blue semi-trailer on the east side of the entrance of Dongfuyang Feed Factory in Village D, and after victim B drove a green three-wheeled electric vehicle to scrape the front bumper of the XX blue semi-trailer, defendant B left the scene, and defendant A found out and drove his XX blue semi-trailer to the west of Y Village, and the three-wheeled electric vehicle driven by B hit the right rear position of his XX blue semi-trailer due to sudden braking, and B was injured, which was appraised by the forensic science of the B Municipal Public Security Bureau. Injury to B is a second degree of serious injury.
【Case Focus】
Whether the subjective aspect of defendant A's crime was intentional or negligent.
【Summary of The Court of Justice】
After trial, the People's Court of City A and B held that Defendant A intentionally injured the body of another person, causing serious injury to one person, and his conduct constituted the crime of intentional injury. The facts and charges charged by the public prosecution organs are established, and this court supports them. With regard to Defendant A's defender's argument that Defendant A did not have the intent to harm the victim, and that this case was only a reason for the defense of an ordinary traffic accident non-criminal case, this court held that based on the comprehensive judgment of defendant A's confession, victim B's statement, witness testimony and other evidence in this case, it can be determined that A drove the semi-trailer at a faster speed, and there was an act of forcing B to stop and brake sharply. As a driver with many years of driving experience, A knows that the above behavior may cause the consequences of B being injured, but allows this result to occur, causing B to seriously injure the second degree, which is an intentional crime. This Court does not accept the defender's argument that A did not have subjective intent to injure himself intentionally and did not constitute a crime. In accordance with the provisions of Articles 234, 14, 45 and 47 of the Criminal Law of the People's Republic of China, the judgment is as follows:
Defendant A was convicted of intentional injury and sentenced to three years and six months' imprisonment.
A was not satisfied and filed an appeal. The Intermediate People's Court of City C in Province A held that A chased B by car because B ran away after driving his truck, and then adopted the method of overtaking and braking sharply to stop B, resulting in B driving into the vehicle driven by A and causing B to be seriously injured. Drivers with many years of driving experience should know that emergency braking may occur in the case of exceeding the vehicle driven by B, blocking B's driving route, and not maintaining a safe distance, but credulously believe that B can take corresponding measures to avoid the occurrence of danger, subjectively negligent in the consequences of causing B's injury, and his behavior constitutes the crime of causing serious injury by negligence. Regarding the fact that A and the defender mentioned that A did not brake sharply, and that A had maintained a safe distance from B, this case was a general traffic accident, A's innocence of the grounds of appeal and defense opinion, after investigation, A's driving records, scene photos and road traffic accident scene map confirmed that at the time of the crime, the driving speed of the vehicle driven by A dropped from 44.3 km / h after 4 seconds to zero, the braking distance was 19 meters, the brake marks were obvious, and the testimony of many witnesses confirmed that A's brakes were very loud, enough to confirm that A was a sharp brake, and according to the testimony of the witness and B's statement, The vehicle driven by A is just a short distance above B, that is, emergency braking, and non-A argues that there is a safe distance. Regardless of whether B takes timely measures to avoid collisions, A's failure to maintain a safe distance from B and emergency braking is the direct cause of B's collision injury. A has committed an act of causing serious injury by negligence while driving a motor vehicle on the road, targeting only specific victims, not other unspecified groups on the road, and the object of infringement is the personal rights of a specific citizen rather than public safety, which is different from the constituent elements of a traffic accident. The case proposed by A and the defender is a general traffic accident, and the grounds of appeal and defense opinion of A's innocence are not established, and this court does not accept it. With regard to the original judgment finding that appellant A constituted the crime of intentional injury and the C Municipal People's Procuratorate's opinion that the original trial was decisive and accurate, this court held that, based on the facts of the whole case, B first crashed A's vehicle and then fled, and A was to pursue B's argument, although he braked sharply after exceeding B, causing B to seriously injure, subjectively there was negligence, but he did not have the subjective intention to hurt B, and found that it constituted the crime of intentional injury, and this court corrected it according to law. After the case occurred, A called the police and waited at the scene, and after being summoned to the case by the police at the scene, although he had a defense on whether to brake sharply and leave a safe distance, but truthfully confessed the main facts of the crime, it could be determined that he surrendered voluntarily and was given a light punishment in accordance with law. With regard to the grounds of appeal and the defense opinion that A and his defender mentioned that A was not at fault in chasing after B by car, this court held that after A's vehicle was hit, it should be immediately reported to the police, and although his driving after B was excusable, it was an illegal and improper act, and the defense and defense opinion was not accepted.
In summary, in accordance with the provisions of Article 235 and Article 67, Paragraph 1 of the Criminal Law of the People's Republic of China, and Item 2 of Article 236, Paragraph 1 of the Criminal Procedure Law of the People's Republic of China, the judgment is as follows:
1. Revoke the Criminal Judgment of the People's Court of A Province B and City (2019) X0285 Xingchu No. 184, that is, "Defendant A committed the crime of intentional injury and was sentenced to three years and six months in prison";
2. Appellant (defendant in the original trial) A commits the crime of causing serious injury by negligence and is sentenced to fixed-term imprisonment of one year and six months.
【Lawyer's Legal Statement】
The focus of this case is whether the subjective aspect of Defendant A was intentional or negligent. The subjective will of the actor is a subjective mentality of the actor when committing the criminal act, which includes two levels: the cognitive factor and the will factor. In order to accurately determine the subjective intention of the actor, it is first necessary to find out the state of the actor's cognition, that is, whether the actor has a clear understanding of the objective aspects of the constituent elements of the corresponding crime, that is, the facts, and on this basis, the will attitude of the actor is examined, so as to determine whether the actor has criminal intent and what kind of intention. Whether the perpetrator's cognition also includes the understanding of illegality has different opinions in the theoretical community. However, according to the provisions of Article 14 of the current Criminal Law, there is no dispute as to whether the subjective understanding of criminal intent in mainland criminal law is a factual understanding.
Because knowledge belongs to the subjective category of people, it is more difficult to grasp the judgment of the actor's factual understanding. The criteria for judging factual cognition in criminal law theory mainly include the following views: First, pure objectivity holds that the factual understanding of the actor should be judged according to the objective existence of the facts, and there is no need to consider the subjective situation of the actor. The second is purely subjective theory, insisting that the actor's claim is the only basis for determining the existence or non-existence of the actor's factual understanding. The third is reasonable objectivity, emphasizing that if a reasonable person can foresee the results produced by his or her actions, it should be found that the defendant can also foresee them. The fourth is reasonable subjective theory, which holds that the judgment of factual cognition is based on the actor's own cognition, and at the same time refers to the understanding of ordinary people. In our view, the first three criteria either despise or even completely exclude the subjective reality of the actor, or rely too much on the subjective reality of the actor and ignore the situation of ordinary people, and pursue the two extremes of things, so it is inappropriate, in contrast, reasonable subjective theory is desirable, because the factual understanding is the basis for determining the subjective intention of the actor, of course, can not be separated from the subjective understanding of the actor, otherwise it may not be consistent with the actual situation of the actor, but the subjective intention of the actor is ultimately determined by the judge. Judges must consider the situation of ordinary people, make basic judgments based on whether ordinary people can recognize them, and then make corrections according to the specific circumstances of the perpetrators.
There is a great controversy over the subjective determination of the crime in this case. From the perspective of A's profession, he is a large truck driver with many years of driving experience, and his level of cognition of the performance of the car and the harm of high-speed driving of the car is much higher than that of ordinary people, in this regard, the consequences of his behavior of chasing B at high speed driving the car and taking the means of sharp braking to force B to stop should be foreseen. Here, we should make different understandings of the subjective level of a large truck driver and the level of understanding of ordinary people, and cannot be equated with it. A chases B by car because B runs away after crashing his truck, and then uses the method of overtaking and braking sharply to force B to stop, causing B to hit the vehicle driven by A and seriously injuring B. Drivers with many years of driving experience should know that emergency braking may occur in the case of exceeding the vehicle driven by B, blocking B's driving route, and not maintaining a safe distance, but credulously believe that B can take corresponding measures to avoid the occurrence of danger, subjectively negligent in the consequences of causing B's injury, and his behavior constitutes the crime of causing serious injury by negligence.
Judging from the above determination, the court of second instance made a conservative determination of the subjective aspect of the defendant, because A's pursuit of B was not unreasonable, but had a cause, so to a certain extent, it reflected that A did not intend to hurt B's intention, but due to the comprehensive view of A's occupation and behavior, A was negligent in B's serious injury.
About Lawyer Sun Wei
Partner of Tianjin Zonghui Law Firm
He is a member of the Litigation Law Branch of Tianjin Law Society
He is a member of the rule of law think tank of Tianjin Xiqing District Government
Member of the Working Committee of the Young Pro Bono Legal Think Tank (PROBONO).
Special guest of Tianjin Television's science and education channel "Lawyer Consultation"
Practical tutor of the Department of Law and Politics, Binhai College, Nankai University
Practice tutor outside the law school of Tianjin University of Commerce
External tutor of master's degree graduate students of Tianjin University of Commerce
Practical tutor of the Law School of civil aviation university of China
Graduated from the China Criminal Police College, he has served in a unit directly under the Municipal Bureau for more than ten years. During this period, he won many awards. Since engaging in lawyer work, he has handled many major criminal cases and achieved good defense results. In particular, he has accumulated rich experience in the fields of illegal fund-raising crimes, job-related crimes, and tax-related crimes, and has formed his own unique case-handling style. He is good at combining past work experience with the strategic skills of criminal defense, pays attention to pre-prevention and in-process disposal, and provides customers with professional and reasonable advice to prevent criminal risks in economic activities.