Some of the sentences violate the law of standardized sentencing
Sentencing is as important as conviction and is an indispensable part of criminal activities on the mainland. If conviction is a verbal one, sentencing is a do-it-one. The sentencing result not only affects the length of time the defendant has been deprived of liberty, but also has a real bearing on whether the victim's lawful interests can be protected, and is closely related to the fate of both parties.
Whether the sentence is appropriate or not is an important criterion for measuring the quality of criminal trials, which will directly affect the positive function of criminal punishment and the effective realization of criminal punishment purposes, and have a bearing on the people's respect and trust in criminal trials or their disparagement and contempt. In order to give play to the substantive goal of sentencing, ensure the normative standards of sentencing activities, and ensure the fairness and reasonableness of sentencing results, the mainland first appeared in 2003 the reform of sentencing standardization explored by grassroots courts on their own.
After more than ten years of development, in general, the standardization of sentencing is to standardize "sentencing", that is, to combine abstract legal rules with specific facts of the case, and to raise them to the process of rational concreteness. Under the premise of respecting the essence of sentencing and following the rules of sentencing, it sets up and applies a complete procedural system to make sentencing produce a fair and effective sentencing sentence that meets the purpose of sentencing.
Although the current interpretation of the standardization of sentencing has been relatively detailed, in the practice of traffic crime crimes, there are still sentences that violate the law of sentencing standardization as in the following comparative cases.
For example, in the "Wu Mou1 Traffic Accident Case", Wu Mou1 drove an unlicensed motor vehicle under the influence of alcohol and hit Ma Moumou, causing serious injury of the first degree. After the case, Wu Mou1 knew that the victim's family called the police, but still waited at the scene, and the police later determined that Wu Mou1 violated traffic and transportation management regulations, drunk and drove a motor vehicle causing serious injury to one person, and was fully responsible for the accident.
According to Article 2 of the Interpretation, Wu Mou1 drove a motor vehicle under the influence of alcohol and caused serious injury to a person, which constitutes the basic crime of causing a traffic accident, and Wu Mou1's base sentence should be fixed-term imprisonment of not more than 3 years or criminal detention, and combined with his sentencing circumstances such as driving an unlicensed motor vehicle, civil compensation, voluntary surrender, admission of guilt and punishment, etc., the final court sentenced him to 1 year and 10 months in prison; As a control group, in the "Wu 2 Traffic Accident Case", Wu 2 drove an unlicensed motor vehicle without a license to cause the death of the victim Yin and was fully responsible for the accident.
Wu 2's act of driving a motor vehicle causing the death of a person constituted a basic traffic accident, and at the same time, he also had the circumstances of driving an unlicensed motor vehicle without a license, surrendering voluntarily, admitting guilt and accepting punishment, and the people's court finally sentenced him to 8 months in prison.
Comparing the facts of Wu 1 and Wu 2's case, under the condition that the basic crime constituent facts are roughly the same, Wu 1 has more lenient sentencing circumstances for civil compensation than Wu 2, and less heavier sentencing circumstances for driving without a license, and the sentencing result should be lower than Wu 2, but it is actually 14 months longer than Wu 2, which is 175% higher.
Although the judicial organs are prohibited from making an estimate based solely on the sentencing circumstances under the requirement of standardized sentencing, comparing the facts of these two cases, the sentencing of Wu 1 and Wu 2 is indeed slightly unfair and fails to follow the logical law of sentencing discretion.
Different from the law of inverse civil compensation affecting sentencing in the above two cases, in the following set of comparative cases, there is a situation where the degree of impact of excessive civil compensation on sentencing is excessively high. In the "Long Accident Case", the defendant Long Moumou drove a motorcycle and seriously injured the victim Zhou Moumou and was fully responsible for the accident.
After the incident, Long fled on the spot, and then had the circumstance of turning himself in because he voluntarily surrendered, and then took the initiative to bear civil compensation, so he was finally sentenced to 1 year in prison and given a suspended sentence of 1 year; Correspondingly, in the "Ran Mouse's Traffic Accident Case", the defendant Ran Moumou also hit the victim Qin to the second degree of serious injury, took full responsibility for the accident and fled on the spot, and also had the circumstances of voluntarily surrendering after escape, but was only sentenced to 3 years in prison without probation for failing to compensate the victim.
Compared with the sentencing situation of Long Moumou and Ran Moumou, the difference in the severity of the sentences between the two is a world of difference, but it is only caused by whether the defendant bears civil compensation. Compared with Long, who was eventually sentenced to 1 year in prison and given a suspended sentence, Ran Moumou was eventually sentenced to 3 years without probation.
Simply the defendant actively bears civil liability without comprehensively considering other sentencing circumstances, which can have such a huge impact on sentencing, which is really false to the principle of proportionality of criminal responsibility and punishment.
It does not comply with the provisions of the relevant laws and may also cause the public to misunderstand the application of civil compensation. These two sets of comparative cases are really contrary to the fairness and impartiality requirements of sentencing results pursued by the practice of standardized sentencing.
Although the standardization of sentencing opposes the "estimation of stacked sentencing" in which the sentencing circumstances are simply added, and the standardization of sentencing is not absolutely opposed to "different judgments in the same case", maintaining that "in cases with similar circumstances in the same area and at the same time, the sentences imposed should be basically balanced" is also the basic requirement for sentencing standardization.
Some sentences are rigidly applicable to civil compensation circumstances
Civil compensation is also one of the effective means of resolving social conflicts while positively expressing the defendant's good attitude of admitting guilt and repentance, so judges usually rely too much on civil compensation means when hearing cases where victims make unreasonable demands or are emotional, in an attempt to resolve social conflicts with high civil compensation.
Although since ancient times, the main issue of civil compensation has focused on the question of defendants' non-liability for compensation and "paying for punishment with money", with the development of the economy and the deepening of the concept of rule of law, the phenomenon of defendants deliberately not bearing compensation has improved a lot. Therefore, in recent years, the judicial authorities' attitude towards the handling of civil compensation circumstances has increasingly focused on the protection of the rights of victims, while neglecting the protection of the rights of criminal suspects.
In the context of the extensive application of civil compensation circumstances, the phenomenon of victims "opening their mouths" is not uncommon, which has become the main drawback of the application of civil compensation. Some victims mistakenly believe that when their rights and interests are infringed, their own attitude is the only criterion for determining the severity of the defendant's punishment, and they use the defendant's eagerness to obtain forgiveness to set a price for the amount of compensation.
This is undoubtedly a way to put the cart before the horse, which not only does not dispel the public's misunderstanding of "buying punishment with money", but aggravates the emergence of excessive compensation, aggravates the economic pressure of civil compensation for no reason, and encourages the bad arrogance of forcing high compensation for others in society, and indirectly promotes the emergence of some "touching porcelain" phenomenon.
Of the 253 randomly selected first-instance verdicts for traffic accidents, most of the judgments only stated the specific amount of compensation that the defendant should pay in accordance with the law, or only stated that the defendant had compensated the victim or his family, and only in a few cases clearly stated the amount of the defendant's specific compensation.
In this part of the cases, except for the fact that the defendant has purchased third-party compulsory liability insurance for motor vehicles, the amount of civil liability borne by the defendant in most cases is reasonable and not too high, but there are still exceptions. When examining individual cases, it was found that there was a phenomenon of "excess compensation" in the judicial practice of traffic accident crimes, that is, the defendant's criminal act did not directly cause the consequences of bearing a huge amount of civil compensation, but in order to achieve the judge's leniency in the final sentencing, the defendant had to compromise with the victim.
Taking the "Zeng Moumou Traffic Accident Case" as an example, in this case, the defendant Zeng Moumou drove a motor vehicle and knocked down and crushed the 88-year-old victim Song Moumou due to observation errors, resulting in Song's death at about 7 o'clock the next day. For traffic accident cases, this is the most common case, but in order to obtain probation, Zeng Moumou compensated the victim's family for 301552 yuan (no insurance), and finally obtained the understanding of the other party.
Although the amount of civil compensation is formally the product of the parties' willingness and autonomy, in fact, the items and amounts of civil compensation have relevant legal basis.
Article 1179 of the Civil Code of the People's Republic of China stipulates that "anyone who harms others and causes personal injury shall compensate reasonable expenses for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, and hospital meal allowances, as well as the loss of income due to lost work." If death is caused, funeral expenses and death compensation shall also be compensated. ”
Secondly, according to Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, "funeral expenses shall be calculated in accordance with the average monthly salary of employees in the previous year at the location of the court subject to the lawsuit, calculated as a total of six months, while the death compensation shall be calculated according to the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year at the location of the court subject to litigation, calculated on the basis of 20 years, and for those over 60 years old, the age shall be reduced by one year; Those over the age of 75 shall be counted as five years. ”
It can be seen from this that in the case of the death of another person caused by a traffic accident, the scope of civil compensation should include medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospitalization meal expenses, subsidy expenses, funeral expenses and death compensation, etc., and the calculation method of funeral expenses and death compensation is also known.
Looking back at the traffic accident case of Zeng Moumou, Zeng Moumou drove to the death of an 88-year-old victim in 2020, and the funeral expenses payable should be calculated based on the average monthly salary of employees in Qianjiang District of Chongqing City in 2019, and the death compensation payable by him should be calculated based on the per capita disposable income of urban residents in Qianjiang District of Chongqing City in 2019, with a total of 185275.5 yuan.
At the same time, because the victim Song Moumou died after one day of ineffective rescue in the hospital, the medical expenses of 10,000 yuan per day were roughly increased, and the comprehensive conclusion was that the amount of compensation that Zeng Moumou should have paid was 195275.5 yuan, while Zeng Moumou's actual compensation was 301552 yuan, which was 54.42% higher than the reasonable compensation amount.
In contrast, the "Ding Moumou Traffic Accident Case" is roughly the same as the aforementioned "Zeng Moumou Traffic Accident Case", both are common traffic accidents, and both defendants also have good confession and repentance.
However, in the Ding case, Ding only compensated a total of 130,000 yuan to the two victims, and obtained a suspended sentence, and the people's court wrote in its judgment: "The defendant Ding compensated the victim's family for the loss, and gave a lighter punishment as appropriate; Defendant Ding voluntarily admitted guilt and accepted punishment, and was given lenient treatment in accordance with law. Based on the circumstances of defendant Ding's crime and expression of repentance, this court decided to apply probation to defendant Ding. ”
The comparison of these two cases shows that the people's court's application of suspended sentences or lenient treatment should be based on the defendant's sincere repentance, rather than excessive compensation to meet the victim's demands. In the case of limited capacity, even partial compensation can reflect the defendant's sincere repentance, and a more lenient punishment can be applied.
The appearance of excess compensation should have been the defendant's compensation for the victim's losses when the capacity was sufficient, which should have expressed the defendant's sincere attitude of repentance, promoted a good social atmosphere, and alleviated the public's doubts about "buying punishment with money", but the rigid "compensation theory" practice of some courts has made more and more people think that as long as the compensation is more and the compensation is sufficient, they can obtain lenient treatment, which undoubtedly deepens the public's misunderstanding of civil compensation.
The rigid application of civil compensation by individual judges in individual cases not only violates the principle of equality before the criminal law, but also gradually confirms the public's misunderstanding that the application of civil compensation is "money for punishment", which is actually more than worth the loss.