Lawyer

"What? Seven years for torture?" Fang Yi was taken aback.

"Yes, that's the sentence." Wang Deyou said.

"No, there is a problem with the judgment of this case. How could it be a competition of laws and regulations. Did the procuratorate protest?" Fang Yi looked at Wang Deyou and asked.

"Protested." Wang Deyou replied: "The procuratorate believes that:

The first defendant, Guan Xianghong’s abuse cannot absorb the intentional injury he committed. The crime of abuse and the crime of intentional injury are not in the same law.

Second, Guan Xianghong intentionally injured others and caused death. According to Article 234 of the Criminal Law, he should be sentenced to fixed-term imprisonment of more than ten years.The original sentence was improper. "

"How was the sentence of the second trial?" Fang Yi asked.

"Tell me what's wrong first, and then I'll tell you how the second trial was judged." Wang Deyou said with a smile.

"Are you fishing? You left a hook on purpose, waiting for me." Fang Yi smiled.

"Tell me, talk about it..., our brother is still hiding it, and it's not consulting the client..." Wang Deyou didn't answer his words, but kept urging him.

"In this case, the procuratorate prosecuted the crime of intentional injury, but the court sentenced it to the crime of torture. I think the procuratorate's charges are correct, and the protest has a legal basis. The court made a mistake in the relationship between the two charges.

These two crimes...the difference is a thousand miles away, and the sentence is much different. "Fang Yi said.

"Please explain." Wang Deyou sat upright, leaned forward, and stared at Fang Yi.

Wang Deyou knows Fang Yi quite well. If you introduce a case to him, Fang Yi will automatically use his brain to analyze the case. This may be an occupational disease, just like the police who engage in pickpocketing. Everyone looks like a thief. It's a conditioned reflex.

"Well, when you introduced the case just now, I was thinking about the legal relationship between long-term abuse and death. Let's first talk about whether there is any overlap between the crime of torture and the crime of intentional injury.

Concurrent legal provisions mean that a criminal act meets the constituent elements of several crimes at the same time, and there is a cross-relationship or inclusive relationship between these several crimes, but only one of the crimes can be applied to the conviction and sentencing, and the other crimes are excluded. applicable.

Imagination coincidence means that the perpetrator's criminal behavior violates several crimes at the same time, and the several crimes are not necessarily inclusive or intersecting.

Therefore, the key to judging whether there is a co-occurring relationship between the crime of torture and the crime of intentional injury is whether there is an overlapping or inclusive relationship between the constituent elements of the two crimes.

According to the provisions of Article 234 and Article 2 of the Criminal Law, the criminal elements of the crime of ill-treatment and the crime of intentional injury are not the same, and there is no overlapping or inclusive relationship in the elements.Specifically:
First of all, the criminal subject of the crime of abuse is a special subject, which can only be constituted when the perpetrator and the victim have a family member relationship.The criminal subject of the crime of intentional injury is the general subject, not necessarily a family member.

Secondly, subjectively, the crime of abuse intends to physically and mentally destroy and torture the victim. The perpetrator does not want to directly cause the victim's injury or death. The victim's injury or death is the result of long-term abuse.Subjectively, the perpetrator of the crime of intentional injury actively pursues or allows the consequences of injury to occur.

Again, the crime of abuse violates the equal rights of family members in family life and the personal rights of the victim.The crime of intentional injury violates the right to health of others.

Finally, the abuse in the crime of abuse is continuous, frequent and consistent, which is the cause of the victim's injury and death. One abuse is not enough to constitute the crime of abuse, let alone cause the victim's casualties.The crime of intentional injury to the victim's physical injury is generally formed once.

What was the defendant's name? "Fang Yi asked here suddenly.

"Guan Xianghong. The defendant's name is Guan Xianghong." Wang Deyou replied.

"Well, I think the defendant in this case, Guan Xianghong, committed two crimes, one is long-term abuse; the other is the last intentional injury.

During the abuse, Guan Xianghong's last act of intentional injury to the victim cannot be included in the abuse, but constitutes an independent and objective act in the sense of criminal law.

It can be seen that the current behavior of the perpetrator and the previous abuse behavior are not the "same behavior" in the sense of criminal law, and can be completely separated from the previous abuse behavior and can be evaluated separately.

Therefore, I think that there is no legal conflict between the defendant's intentional injury and abuse. "Fang Yi explained.

"Then tell me, in this case, if the defendant committed intentional injury during the abuse, how should he be convicted?" Wang Deyou asked.

“I have been in contact with several cases of this kind before.

In real life, the defendant's abuse of family members is often accompanied by intentional harm, often resulting in injury or death of the abused.

In my opinion, if the perpetrator intentionally injures the victim for a long time, but does not cause the victim more than minor injuries, it should be considered a crime of abuse.

However, in the process of regular abuse, if the perpetrator knows that his behavior will cause physical harm to the victim, and has objectively caused harm to the victim, it should be determined as a crime of intentional injury.

If the harmful behavior is separated and evaluated independently, other abuses constitute the crime of abuse, and the crime of abuse and the crime of intentional injury should be punished together.

If after the injury is separated, the rest of the abuse does not constitute the crime of abuse, and the perpetrator can only be punished as the crime of intentional injury.

Back to this case, the defendant, Guan Xianghong, has long abused the victim he raised by committing violent acts in his family life. crime.

Guan Xianghong's behavior this time was because he discovered that the victim had gone out, and he beat the victim with intense violence. The degree of violence far exceeded the general beating in domestic abuse, and it caused serious results in the death of the victim. His subjective intention was no longer It is no longer abuse, but directly harms the victim's health.

Therefore, I believe that the defendant should be punished with the crime of cruelty and intentional injury, and the combination of several crimes should be punished.

However, according to Article 2 of the "Criminal Law", if the crime of torture has not caused the victim's serious injury or death, the complaint shall be dealt with.

The abuse committed by the defendant before beating the victim for the last time in this case did not result in serious injury or death of the victim, and the victim did not file a complaint about it before his death, so the defendant cannot be held criminally responsible for his abuse.

Therefore, I guess the court of second instance will convict and sentence the defendant for the crime of intentional injury.

Come on, it's time to unravel the mystery! "Fang Yi stretched out his right hand and made a gesture of invitation to Wang Deyou.