Self-defence? Is defense become too? Is intended still harm deadly?
The town of elder brother hill that gets attention of social public opinion fully " 8.27 " Yuhaiming sent case of bang dragon death to have a result. On September 1 afternoon, public security bureau of city of elder brother hill and procuratorate issue a bulletin in succession, the behavior of cognizance Yuhaiming belongs to self-defence, do not bear criminal responsibility.
What did the case experience, have detail of insensible of what your place, why to maintain self-defence, here has the opinion of Jiangsu procuratorial work and voice.
One, the case is basic circumstance
On August 27, 2018 21 when make 30 minutes, plain road produces shake of city of elder brother hill one case BMW car driver holds a knife to chop a person to oppose the proposal that be killed. Public security mechanism is received alarm hind drive in time go to field survey processing, and that day put on record is investigated. Procuratorial work mechanism takes this case height seriously, procuratorate of city of elder brother hill the member that send for a short while intervenes ahead of schedule lawfully investigation activity, consult case testimony material, obtain evidence to investigating and law is applicable offer opinion and proposal, fulfill law to supervise duty lawfully. The member that Jiangsu saves procuratorate, Suzhou city procuratorate to be sent in time undertakes guidance, top people procuratorate also expresses to be deeply concerned to this case.
Public security mechanism is found out, case hair that evening bang dragon drunk wine drives car of Anhui AP9G57 BMW (via detecting, haemal alcohol content is 87mg/100ml) , carry Liu Mou some (male) , Liu Mou (female) , Tang Mou some (female) reach city of elder brother hill all right shake plain road, enter blame motor-driven driveway forcibly right, with the Yuhaiming that rides a bicycle normally nearly is touched brush, both sides produces conflict then. Via help sb to get over his worries of personnel of bilateral person of the same trade, traffic conflict is appeased basically, but bang dragon gets off suddenly, before going up, push, kick dozen of Yuhaiming. Although classics mediate, bang dragon still is chased after continuously dozen, BMW car is returned to take out a chopper after (classics appraisal, this knife is pointed horn double-faced edge, full-length 59 centimeters, among them knife height 43 centimeters, 5 centimeters wide, department control cutting tool) , yu Haiming of the successive stroke that use a knife ministry of cervical, waist, leg. The chopper in stroke is swung, yu Haiming grabs chopper, prick in the disclose in contention, chop attack bang dragon 5 knives, thorn chops a process to last 7 seconds. Car of BMW of the run to after bang dragon gets hurt, at Hai Mingji add is chased after in all chopping 2 knives. Side of northeast of car of BMW of bang dragon run to, the member that Yu Haiming chases several meters of pedestrians that be the same as lugs block, BMW car is returned after, take out mobile phone of dragon of the bang inside the car put him bag. After the policeman reachs the spot, yu Haiming gives mobile phone and chopper actively place alarm policeman (Yuhaiming says to take away bang dragon mobile phone is to prevent the other side to call call together personnel to make reprisals) .
Via sending medical service rescue disables to die that day after bang dragon. Appraisal of classics legal medical expert combines video monitoring to maintain, bang dragon is pricked to chop 5 knives continuously, among them, the 1st knife pricks stamp injury for left abdomen, cause rupture of canal of abdominal vena cava, bowel, mesentery; The others 4 knives are ordinal cause left hip, right bust ministry of right the upper arm, left shoulder, left elbow in all 5 place open sexual cut and 3 place fracture, cause of death is exsanguine sex shock.
Yu Haiming is checked via person, see left cervical a form contusion 1 place, ministry of costal region of left bosom season form contusion 1 place.
2, the analytic opinion that behavior of cognizance Yu Haiming belongs to self-defence
Our country criminal law the 20th the 3rd section provision: "To having do violence, murder, rob, the violent crime that rape, kidnap endangers person security badly with etc, take defensive action, those who cause casualties of person of illegal enroach on, do not belong to defense to be become too, do not bear criminal responsibility. " reach existing evidence according to this case fact, procuratorial work mechanism thinks Yuhaiming belongs to self-defence, do not bear criminal responsibility.
1.Bang dragon instigates disturbance, fault is prevenient.
Look from the origin of this case, bang dragon drunk wine drives, violate compasses change, active affray, carry a disturbance; From a got-up affair development looks, bang dragon is to push first, then cuff and kick, hold knife stroke finally, illegal enroach on upgrades step by step.
2.Face the real risk that endangers person security badly at Hai Mingzheng.
This case is fastened " the commit physical assault or murder that having " , the knife of double blade pointed horn that bang dragon uses fastens cutting tool of national illicit control, belong to criminal law to provide medium lethal weapon; Its hold another person of lethal weapon stroke cervical wait for crucial point place, endanger security of Yu Haiming person badly; Chopper is swung after falling in the ground, before its go up instantly, contend for, did not abandon evidence. Bang dragon gets hurt after rising, instantly the car that run to places chopper formerly -- Yuhaiming cannot eliminate his from take out inside the car other " lethal weapon " possibility. Although chopper is easy hand, danger was not eliminated, person safety of Yu Haiming is facing pressing and real risk from beginning to end.
3.Yu Haiming grabs the behavior that the knife strikes back to attribute the normal response that affection issues urgently, accord with special and defensive requirement.
After Yu Haiming grabs a knife, successive disclose thorn, chop attack bang dragon 5 knives, all injury affection all is formed inside 7 seconds. Face the emergency that illegal enroach on upgrades ceaselessly, accurate judgement of very hard choice gives average person oneself may get how old harm, change cipher out calmly next equivalent defensive intensity. Law won't try to make sb do sth which he can't do, so criminal law sets, when facing the serious and violent crime such as do violence to have defence, without the limitation of defensive limit. Procuratorial work mechanism thinks, yu Haiming faces the long knife of brandish, what make grab a knife to strike back behavior, attribute the normal response that affection issues urgently, cannot make excessive demands the power that his essence grants to control disclose to prick and place. Although cause the death of person of illegal enroach on, but accord with special and defensive requirement, do not need to assume criminal responsibility lawfully.
4.Look from the system value of self-defence, ought to first protection defender.
"Not was necessary legally to illegal concession " . The essence of self-defence depends on " with be opposite frame-up " , it is just behavior to illegal enroach on strike back, because this should make clear defender the first protection position in criminal law. In practice, a lot of illegal enroach on are abrupt, hurried, defender often judges the property of enroach on behavior and intensity well and truly hard below brash, nervous condition, hard the defensive measure with relevant choice of comprehensive, cautiously. Be maintained in the fact and law is applicable go up, judiciary should the emergency that mature defender is faced with, lawfully regulation of accurate and applicable self-defence, protect the legitimate rights and interests of defender, establish good social value to direct thereby. This case is violate the rules and regulations of bang dragon traffic prevenient, provoke affray is prevenient, the attack that hold a knife is prevenient. Yu Haiming faces such illegal enroach on, according to law the regulation has the right of executive self-defence.
Social all circles gave great attention to this case, especially broad netizen, expert, scholar, lawyer offers opinion proposal actively, rational expression viewpoint appeals to beg, deal with what promoted a case lawfully, mechanism of Jiangsu procuratorial work expresses to be thanked heartily.
Person safety is every citizen's mainest demand, face come from malfeasant serious and urgent harm, law ought to guide encourage a citizen to be brave in ego is relieved, insist to make a fight with illegal enroach on. Judicatory ought to be lost case propose the fashion, duty that promotes healthy atmosphere, procuratorial work mechanism also will guarantee the self-defence right of people lawfully, cogent safeguard people to close right increase.
