The boundary between the crime of negligence causing death and the determination of accidents in the People's Court Daily

【Copyright Notice】The copyright belongs to the original author, only for learning and reference, it is forbidden to use it for commercial purposes, if the source is marked incorrectly or violates your rights and interests, please inform us, we will delete it immediately. Source: People's Court Daily, page 6, April 18, 2024. Author: Yang Jielin, Zhengzhou Railway Transport Court.

case

At around 10 a.m. on November 25, 2019, Zhao Mouqing and his family members Zhao Mouzhen and Wang Moumou (Zhao Mouzhen's husband) went to the Zhengzhou Public Works Machinery Depot of Zhengzhou Bureau Group Co., Ltd. of China Railway Administration to communicate with each other about the relevant issues that had been reflected. At about 13:28 on the same day, the victim Zhao Mouqing walked to the gate of the office area where the Zheng Tie Public Works Machinery Section was located, and sat on the ground about half a meter inside the courtyard under the landing gear of the gate's automatic license plate recognition, facing the courtyard, and was later helped up by passers-by; About 10 minutes later, Zhao Mouqing returned to the place and turned to lie on his side with his left hand supporting his head facing outside the hospital. Zhao Mouzhen, Wang Moumou and the police stood in front of the automatic license plate recognition area outside the hospital to communicate. Defendant Zhang XX drove a white Nissan sedan under his name and hit the right turn signal at 13:55:23 on the same day to turn and enter the gate passage, because the victim's family members Zhao Mouzhen, Wang Moumou and the police were communicating in the middle of the passage, Zhang Moumou stopped the vehicle, and the three saw the vehicle moving to the side of the road one after another to avoid the vehicle. During this period, the victim Zhao Mouqing, who was lying on his side on the inside of the gate and facing the outside of the gate, did not make any moves or avoidance actions, and the victim's family and other companions did not give any warnings or reminders to Zhang and Zhao Mouqing. Zhang Moumou began to drive the vehicle slowly at 13:55:42; At 13:55:49, after the vehicle entered the yellow automatic identification area on the ground, the gate landing gear was raised, and the vehicle drove into the gate, and in the process of entering the gate, the victim Zhao Mouqing, who was lying on his side with his left hand facing outside the hospital, was crushed, and Zhao died on the day of the rescue failure.

divergence

In this case, there are different views on whether the perpetrator has the obligation and ability to foresee when the perpetrator drove over the victim who was lying on his side behind the automatic identification of the landing gear with the license plate and caused his death:

The first view is that the actor driving the vehicle at the automatic identification landing gear of the license plate that he often passes by in his daily life should have the obligation and ability to foresee the harmful results, and Zhang XX constituted the crime of "negligence" type negligence causing death. The second view is that the perpetrator failed to fulfill the duty of care for safe driving in road safety laws and regulations, and drove a vehicle to cause the death of the victim, and Zhang XX constituted a traffic accident causing death. The third view is that the perpetrator drove the vehicle normally in accordance with the law, and the victim deliberately lay on his side behind the automatic identification of the landing gear with the license plate, and the victim's position formed a blind spot, and the behavior was extremely rare in real life, and the driver should not be required to predict this in advance or give an excessively high duty of safety care, and Zhang XX did not constitute a crime.

Analysis

The author agrees with the third viewpoint for the following reasons: According to the provisions of the Criminal Law, one should foresee that one's own behavior may have consequences that may harm society, and failure to foresee it due to negligence is a crime of negligence of the "negligence" type; Although the act objectively caused damage, it is an accident if it is not caused by intention or negligence, but due to unforeseeable reasons. Therefore, the key to the crime of negligence causing death and accidents of the "negligence" type lies in whether the actor "should have foreseen" and the determination of the causal relationship between the actor's "negligence" and the outcome of the death. 1. Determination of "should have foreseen" The meaning of foresight refers to insight that can be anticipated, and "shall" in the context of the criminal law means that the actor has an obligation, so "should have foreseen" in the criminal law should be understood from two aspects, one is whether there is an obligation to foresee, and the other is whether it has the ability to foresee. At the same time, there is a sequence in the determination of the obligation to foresee and the ability to foresee, if the actor does not have the obligation to foresee, even if the actor has the ability to foresee, it does not constitute a crime of negligence. Determination of the duty of foresight. The sources of foresight obligations are mainly as follows: first, statutory foresight obligations, such as motor vehicle safety rules in road traffic safety regulations, medical safety rules and regulations, etc.; The second is the obligation of foresight formed by public order and good customs, such as the actor should pay attention to the safety of fire when using fire in life, and should have the obligation to foresee the harmful consequences of the spread of fire; The third is the obligation of foresight arising from previous acts, and if the actor has the consent of the guardian to take sole care of the child, the actor shall have an obligation to foresee the child's dangerous conduct. In this case, Zhang Moumou drove a vehicle at the automatic identification landing gear of the license plate at the gate of the unit, and since there was no separation of people and vehicles in the courtyard of the unit, and people and vehicles could merge without obstacles after passing through the gate, Zhang Moumou should have the general prejudgment obligation of a normal person to drive the vehicle safely. However, its obligations do not derive from the obligations of road traffic safety regulations, because according to the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Handling Criminal Cases of Dangerous Driving While Intoxicated", whether a road section within the jurisdiction of an organ, enterprise, public institution, and other unit is recognized as a "road" should be judged on the basis of whether it is "public" and whether it "allows social motor vehicles to pass". Where only motor vehicles within the unit and specific visiting motor vehicles are allowed to pass, they may not be identified as "roads". It can be seen that the key to the determination of "road" is whether it has "publicity" and "circulation of social vehicles", the unit involved in this case is closed, and only the vehicles of the unit can enter and exit, so it is not a road in the sense of the Road Traffic Safety Law, Zhang XX does not have the obligation to foresee within the scope of the Road Traffic Safety Law, and at the same time, Zhang's driving behavior did not violate the road traffic safety management regulations, so Zhang XX did not constitute the crime of causing a traffic accident. Judgment of foresight. On the one hand, it is necessary to consider whether the actor has the subjective ability to foresee dangers or harmful results when performing under realistic conditions such as his age, physical status, intelligence level, knowledge and skills; On the other hand, it is necessary to consider whether the perpetrator has the objective possibility of foreseeing the danger or harmful outcome under factors such as the geographical environment, social environment, and objective conditions of the place where the crime occurred. In this case, Zhang Moumou has many years of experience in driving vehicles and has the subjective ability to foresee the harmful results of normal people driving vehicles, but in this case, the place of the crime was on the road where the internal vehicle of Zhang's unit was driving normally, and the victim Zhao Mouqing deliberately lay on his side after the license plate automatically recognized the landing gear, and Zhang Moumou just drove into the unit as usual, and the family of the victim Zhao Mouqing was at the scene, and his family members knew that Zhang Moumou was in a fatal danger to Zhao Mouqing and did not prompt or stop him. As a result, it was impossible for Zhang to anticipate or anticipate that his normal driving behavior would lead to the death of others in full view. In the case that this case is far beyond the scope of normal people's rational cognition, the law should not require the driver to make advance predictions or give excessive safety care obligations, so Zhang Moumou does not have the ability to foresee.

2. Determination of the causal relationship between the actor's "negligence" and the result of death Even if the actor is in a situation that "should have been foreseen", the boundary of the determination of the crime of "negligence" type of negligence causing death and an accident also needs to consider the causal relationship between the act and the harmful consequences, and if the actor did not foresee the harmful result because of negligence, it still does not constitute a crime of negligence. Therefore, in judicial practice, the criteria for the presiding judge to review evidence should be the following three points: first, whether the evidence can prove that the defendant has the obligation to foresee; second, whether the evidence can prove that the perpetrator has the ability to foresee; The third is whether the evidence can prove that the defendant failed to fulfill the duty of foresight due to negligence, thus causing harmful results. Only when there is sufficient evidence to prove the above three points can the defendant be found guilty of negligence of the "negligence" type. In this case, Zhang XX did not have the ability to foresee, and the victim in this case, Zhao Mouqing, deliberately lay down at the gate to block the normal entry and exit of the vehicle, and he had the conditions to see the oncoming vehicle and did not take the initiative to avoid it, violating the prohibitive provisions of the "Regulations for the Implementation of the Road Traffic Safety Law", and the occurrence of the result of his death was caused by many factors mainly due to the victim's own fault, not caused by Zhang's own behavior, nor was Zhang XX negligent and failed to fulfill the obligation of foresight, this case is an "accident", and the court should rule that Zhang XX is not guilty.