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Editor's note is in case of a few criminal, behavior person carried out the harm behavior with dangerous not high rate to the injured party, this behavior is in won't cause person death usually, but because the injured party has idiosyncrasy (be like) of some kind of disease, cause disease show effect, both produces the consequence that the injured party dies below joint action. In practice, different handle a case may the judgement of personnel differ mainly: ? Instrument seeks of form of Di Xin pregnant discharge? has a plenty of pair of causal judgement, also have put the emphasis in the suspect of subjective fault respect, accordingly, the conclusion that reach differs somewhat of course. This period " case of solid Wu · " focusing " the liability issue that how holds slight force to send idiosyncrasy person to die " , pay close attention to please.
Delibrate problem: ? Tuo rips Guan of of of dirty Lian of fatigue of peptone of π form to owe result of death of □ of? of impossible of of Xian of favour of smile climbing over a wall whether return duty the subjective fault of the person of behavior □ behavior at behavior person
Details of a case: 216 years on July 12, contend for in some hotel internal cause after Zhang Mou wine sit elevator and Wang Mou of the injured party produce quarrel, zhang Mou and Wang Mou fight each other with the fist after, main stroke is in fist the upper part of the body such as Wang Mou's bosom, and a few jerk with the hand Wang Mou's bosom, the Wang Mou in pushing pours ministry of edge of a field to get hurt bleed, both sides stays a hand. Zhang Mou accompanies Wang Mou to have treatment to the hospital. During this, bosom of Wang Mou an account in one's own words aches frowzily unwell, say liquid of gules blood sample, the Wang Mou after 8 hours disables via rescue death. Classics appraisal, zhang Mou has slight injury, wang Mou has slight injury, stalk of department cardiac muscle causes heart burst to die to death. This slight and violent incident is to bring about Wang Mou cardiac muscle to straighten dead to send heart cracked to cause an element.
Difference opinion carries out force to cause damage consequence, form error to cause person death pain
Ding Ke of □ Tian Zhimin
The author thinks, zhang Mou's behavior forms error to cause person death pain, specific reason is as follows:
One of, ought to foreknow the result that beats up other to be able to produce the loss that send a person, still carry out beat up behavior, sequential to the harm of other, subjective going up have knowledge. Zhang Mou produces conflict because of bagatelle and Wang Mou of the injured party, relapse when bosom of stroke Wang Mou, ought to foreknow use fist for many times stroke other bosom, can create the result that other body is injured. So, zhang Mou is sequential to damaging (dead result) ought to be in charge of. Cannot die in order to appeared namely result and the subjective state of mind that denies Zhang Mou lays a person, then maintains Zhang Mou not to have the unpremeditated crime of the death that send a person.
Secondly, beat up other behavior to have social danger sex, violated other person right. From the point of injury affection, zhang Mou and Wang Mou are sufferred traumatic have slight injury, visible, force hits level at that time is not the life medium common push behavior. Error causes person death pain is the accusation of sex of a reveal all the details that dies to encroaching other person right to send a person, must not accord with some kind of special behavior mode with behavior, just make this crime. Wanted to violate other person right only, whether to realise for the person the injured party has idiosyncrasy all right no matter, used rough stuff actually, caused damage consequence () of the death that send a person, have accord with error to send person death suffering to make important document.
Thirdly, because idiosyncrasy of the injured party is the major reason of dead result, ought to think integratedly relevant element. Get used to a principle according to photograph of punishment of responsibility for an offence, this case qualitative for intended harm (deadly) all forbid with accident truly. "The death that send a person " the result accentuation that belongs to a model makes, go up objectively the requirement is had between harm behavior and dead result direct causal, namely or harm behavior creates dead result directly, or harmed behavior to create harm result, cause death as a result by harm then. And the direct actualization that must be the risk of the death that send a person that harm behavior place contains. Apparent, the happening of this case is the many case because of one fruit, immediate cause of death is heart burst, of Zhang Mou beating up behavior is one of inducement that Wang Mou dies only, be not main reason. And what the meaning that beat up does not attribute the death that send a person is intended, the behavior of reason Zhang Mou should establish error to cause person death pain.
(Writer unit: ? Procuratorate of people of county of water of Peng of? of stir-fry before stewing of Hu of antrum of laying heir of Li of saliva of She enthalpy apricot)
2 existence harm difference opinion intentionally subjective purpose, make intended harm crime
Wave of Wei of king of □ plum Hunan
The author thinks, zhang Mou's behavior makes intended harm crime, specific reason is as follows:
Above all, behavior person carried out harm behavior, create result of death of the injured party. In practice, if the behavior that carries out for the person all right commonly is organized to human body of the injured party complete or physiology organ function undertook harm, can maintain its to have harm action. In slight force in terminal case, main to how be being evaluated slight force produces difference easily, its attribute intended harm action after all or beat up behavior commonly namely. The author thinks, should hold to advocate objective look unanimity principle, want to see the subjective end of behavior person not only, inspect the weight hurting feeling that behavior causes even, whether to cause the consequence of flesh wound above. Behavior person has the subjective objective that injures another person intentionally, go up objectively caused certain the condition of an injury, can maintain behavior person to carry out and rather than of intended harm behavior to beat up behavior commonly.
Next, the harm behavior of behavior person and existence of death of the injured party are causal. In case of idiosyncrasy of the injured party, element of disease of oneself of the injured party and behavior of behavior person harm bring about dead result to happen jointly, belong to much because of one fruit, say according to causal condition, the harm of behavior person has penal between behavior and result of death of the injured party causal, harm behavior itself has reason active force to dead result, because necessary harm action passes accidental special disease to just be brought about,endanger consequence happening just about, both also exist on certain level causal, but still should avoid to exaggerate action of idiosyncrasy of the injured party in practice change the trend. What need a specification additionally is, idiosyncrasy of the injured party regards its body as the one part of the state, before consist in executes behavior, do not attribute intervening factor, natural cannot block breaks causal happening.
Again, behavior person is subjective on have harm intended, blamable to dead result. Subjective fault matters to behavior to whether the person assumes criminal responsibility or be assumed why to plant criminal responsibility. In harming a case intentionally commonly, subjective fault is behaved hurt the result with healthy other people to know perfectly well behavior to be able to be caused, and hope or indulge the happening of this kind of result, normally behavior human affairs is opposite first can cause to the injured party why to plant the understanding that the harm of degree did not make clear. In harm the result was not exceeded subjective commit meaning case, can hold the end of harm by real harm as a result. In similar case, the author thinks, behavior person is subjective on have mixture fault, what have harm already is intended, also have the unpremeditated crime of the death that send a person, go namely humanness is subjective those who go up to be held to health of body of be murdered person by injury is indulge manner, the result that dies to its at the same time has neglectful unpremeditated crime, accord with intended harm (deadly) of the blame make important document.
(Writer unit: ? Stir-fry before stewing of Hu of antrum of heir of of a small tinkling bell of of discharge of Yi the larva of a tapeworm or the cercaria of a schistosome?
Difference opinion 3 subjective sides are blameless, belong to accident
□ Su Jianshao
The author thinks, zhang Mou's behavior belongs to accident, do not make crime. Reason is as follows:
Above all, subjective side does not have behavior person intended. Intended cent is mix intentionally directly indirect and intended two kinds, it is to show behavior person knows perfectly well his behavior to be able to produce harm result, and this plants hope or indulge the happening of the result. Visible, no matter which kinds are intended, its premise is behavior person the action that has seen oneself beforehand can produce harm result. Apparent, beforehand of the Zhang Mou in this case is not known perfectly well to the idiosyncrasy of Wang Mou of the injured party, the slight force that won't see its are carried out beforehand consequently can cause the consequence that Wang Mou dies. After combining Zhang Mou to discover substance of occurrence life risk asks for Wang Mou can rescue them in time this one clue, can judge a Zhang Mou both neither to hope to also do not have indulge king the happening of some death result. Consequently, zhang Mou is subjective go up nonexistent intended. Look from idea, zhang Mou carried out behavior of do harm to, and the harm with be caused certain is sequential. But the slight injury that behavior of do harm to caused Wang Mou only, can not bring about Wang Mou to die directly. Zhang Mou's behavior and Wang Mou lack inevitable connection between dead result, nonexistent penal is causal between its behavior and result. Reason Zhang Mou answers the slight injury consequence that causes directly to be in charge of only.
Next, behavior person is subjective the respect is nonexistent error. Error cent is overconfident error and neglectful error two kinds. The place before be like is narrated, zhang Mou did not foreknow the result that oneself behavior may produce harm society, accordingly, nonexistent overconfident problem. In practice, accident and neglectful error are more similar. So, whether is because of,Zhang Mou belonged to neglectful " ought to foreknow and did not foreknow " ? The answer is negative. Although Wang Mou of the injured party belongs to idiosyncrasy, but its appearance feature and ordinary person as good as. The constitution that reason Zhang Mou cannot judge Wang Mou from in person is unusual. According to average life common sense, behavior person is based on the slight rough stuff that he carries out impossibly, reach easily " the likelihood brings about other death result to happen " sentence beforehand. "Law not try to make sb do sth which he can't do " . If only the serious consequence that because of appearing Wang Mou dies, push Zhang Mou " ought to foreknow " , it is the cognitive ability that offends an ordinary person apparently, belong to try to make sb do sth which he can't do. Accordingly, zhang Mou is subjective the respect does not have error, should not assume error to incur the criminal liability that the person dies.
Again, endangering a result is caused by the reason place that cannot foreknow. The person that behavior person is idiosyncrasy to Wang Mou of the injured party utterly ignorant, did not foreknow, foreknow impossibly also the death that oneself slight harm behavior can cause Wang Mou. The person of idiosyncrasy, because of the body inside conceal has disease parent and already pledged with healthy human body discrepant, once this kind of germ is caused disease show effect namely by ab extra blow or stimulation. In this case, slight force of Zhang Mou just causes an element. Zhang Mou is so subjective the existence of dead result both neither that just faces Wang Mou is intended, nonexistent also error. Wang Mou dies this one harm is caused by the reason place that cannot foreknow as a result.
On put together, because Zhang Mou is subjective and innocent,pass, this case accords with the main feature of accident. According to criminal law the 16th regulation, behavior is in although created harm result,go up objectively, but not be to stem from intended or error, because cannot defy the reason place that perhaps cannot foreknow,cause however, not be crime.
Notable is, although the travel humanness in accident does not need to assume criminal responsibility to endangering a result, but still should assume corresponding civil responsibility lawfully. Such, the human relations in society that is destroyed still can get due rehabilitate, achieve the unity of legal effect and social effect then.
(Writer unit: ? Does deep and remote bright ∪ fly relatively stir-fry before stewing of Hu of laying heir antrum?
