A few days ago, elder brother hill happened to hold a knife to throw person case together, the video that the person that throw a person is chopped dead by the other side instead causes mad transmit on the network. According to bulletin of police of elder brother hill, on August 27 evening, shake of city of hill of Jiangsu province elder brother plain road one crossing. Show in video, car of BMW of a white sails blame motor vehicle, with ride the electric motor-car of travel to produce conflict normally, BMW car one man gets off produce quarrel with cyclist, although have chaperon offer advice, but two people still happen push. Right now, tattoo the skin inside BMW car male come down from the car, to cyclist cuff and kick, return again after a long knife is taken out inside the car, throw person of Xiang Qi car. Although cyclist is avoided again and again, but in still be being chopped. Have not wants to tattoo the skin male when throwing a person, long knife is inadvertent be born, cyclist is one-up pick up grows a knife, chop Xiang Wen body conversely male, tattoo the skin after that male not enemy flee in disorder, but cyclist continues to chop several knives repeatedly. Current, tattoo the skin male because hurt serious death, and cyclist already was controlled by police.
Around the criminal responsibility of cyclist, each controversy is ceaseless, main viewpoint has: 1. Form intended harm to cause person death. Reason is: After the man cycling to hold a knife to strike back in video, tattoo the skin male already flee in disorder, but by bike the man still holds a knife to chase after chop, although video is pleasant to the eye,those who chop is not deadly place, but chopped a lot of knives, this had exceeded the category that defense becomes too.
2. forms self-defence. Reason is, the circumstances after cyclist grabs a knife also should be maintained for dangerous situation, because this has defensive legitimate right. Main reason depends on, inside 9 minutes of time with on record short hair, apply bilaterally kill and defend behavior is coherent, divide rift to look hard. From tattoo the skin male mix when grabbing a knife in light of the behavior of the sex of high person danger before grabbing a knife, cyclist has reason completely to think, although oneself grab a knife, tattoo the skin male reach its companion to still have the high possibility that kickback, if check not in time, strike back not quite complete, the other side will still continue possibly do harm to.
3. forms defense to be become too. Reason is: Tattoo the skin male after holding a knife to throw person of Xiang Qi car, the someone else on BMW car did not join enroach on. Tattoo the skin male after be being chopped instead by cyclist, tattoo the skin the person of male one party also was not offerred assist. Accordingly, tattoo the skin the so-called number advantage of male one party is nonexistent. Secondly, tattoo the skin car of BMW of male run to when, had been chopped 5 knives, experience is weighed. Right now even if still has other lethal weapon inside BMW car, tattoo the skin male have impossibly also again continue to confront each other the apiration of do violence and ability. Tattoo the skin car of BMW of male run to should be to think a car to escape the spot; The 3rd, tattoo the skin male when holding a knife to throw person of Xiang Qi car, what use extremely likely is the back of a knife blade and edge of hilt and rather than. This can strong proof tattooes the skin male do not hope to cause cyclist to be weighed at the outset, harm its life innocently at least. This also is cyclist injury affection is not weighed, later period still can seize the key of the knife. Measuring a when whether defense becomes too important level is the intent of do harm to of person of do harm to and ability of do harm to.
Through comparing, discover not hard: Consider as what harm the death that send a person intentionally, basically capture two keys to nod: Tattoo the skin male desert, cyclist chops several knives repeatedly, skill of this a few knives is heavier, and not was necessary. Consider as self-defence, the continuity of details of a case of main with a view to, grasp the following crucial facts especially: Tattoo the skin male rate is preferential knife, indicate gender of danger of its height person, and tattoo the skin much influence of person of male one party is numerous; Cyclist seizes cutting tool to have chance, in affection urgent under the judgement existence limitation to whether breaking away from dangerous situation. Consider as defense too, think to tattoo the skin male likelihood throws a person with the back of a knife blade, do not have intent of do harm to and capacity; Tattoo the skin much influence of person of male one party is numerous, but without intervening combat; After cyclist seizes a knife, will tattooed the skin male chop, should judge its not to have capacity of do harm to, pursue and attack behavior to belong to defense to be become too so.
Will integratedly look, the detail of the case still remains police investigation, in light of the finite information that reflects from video only nevertheless, OK and preliminary reach as follows judgement: At the beginning, tattoo the skin male hold knife wound person, cyclist falls by its knife collect a knife to strike back, should form self-defence; After that, tattoo the skin male not enemy, car of run to BMW, cyclist pursues and attack several knives, do not eliminate the possibility that defense becomes too. Of course, of final action qualitative still remain police is investigated further, disclose the fact that reflects hard on video.
Notable is, poll in a when phoenix net initiates in, think the point of view that makes self-defence is as high as 7 to become, oppose the scale of the viewpoint that defense is become too and harms the death that send a person intentionally more than far. Nevertheless, look from judicatory angle, our country all through the ages to " infinite defense counterpoises " recognizing choose a site for the capital is more careful, on June 23, 2017, shandong tall courtyard make 2 judgement at case of joyous intended harm definitely, with harming a blame intentionally set term of imprisonment of Yu Huan of change the original sentence 5 years, overthrew first instance to be not belonged to about this case " defense is become too " maintain.
After 2 careful adjudge Yu Huan two days, shen Deyong of standing assistant dean publishs top people court signed article, talk technically " we ought to how applicable self-defence system " . The article says, the case, criminal trial judge thinks fact, integratedly through judging entire case integratedly case casuse and effect, it is the foundation that ensures self-defence system is applicable.
The article of Judge Shen Deyong old inspires to ours is: Want to take the casuse and effect of whole case seriously, with respect to this case character, the driver breaks the law drive, tattoo the skin male rate is preferential the knife throws a person is the cause that causes whole case, if after this is not his the knife drops, cyclist strikes back feebly at all, strike back act also has fair chance so, and control its to strike back the subjective state of mind of the process should be more " risk eliminates after be browbeaten " , and rather than " other of do harm to " . Although of after this pursue and attack behavior to have the suspicion that exceeds defensive limit, but if be limitted merely,be " intended harm sends a person to die " , take no account of any reducing clue, appear again not before half paragraphs of attend to details of a case, there is the process that one each transfers like that between around after all, and rather than produces the changeover of subjective state of mind suddenly.
Writer unit: The national law in university of Hua Dongzheng law manages strategic research center
