Elder brother hill throws person case, caused the wide attention of legal person and social community for a short while, be in to the behavior of suspect Yu Mou jural ought to maintain become too for self-defence or defense, produced intense discussion and difference. Do not talk here when the thing person bilateral character setting is waited a moment, and set from law only and legal logic uses a field, applicable to the cognizance of this case fact or law undertake a few analysises are mixed discuss.
The first part [punishment case is schematic]
On August 27, 2018, road of suitable sail of city of hill of Jiangsu province elder brother and shake the roundabout of plain road, car of a BMW sails blame motor vehicle, produce issue with the electric motor-car of normal travel. Liu Mou of BMW car driver is right cuff and kick of cyclist Yu Mou, hind from a long knife is taken out inside the car, chop to Yu Mou, yu Mou is chopped. In conflict, liu Mou grows knife be born, grow a knife at some pick up, chop to Liu Mou, liu Mou escapes leap up, yu Mou chops several knives repeatedly to Liu Mou. Liu Mou disables via rescue death.
When contradiction just happened, liu Mou played a few bases toward Yu Mou, strike back at what some has no too big movement. Subsequently, liu Mou is returned a long knife is taken out in the car. Yu Mou sees Liu Mou holds a knife to go ceaseless to avoid, during this, liu Mou inadvertent knife falls, the knife is grabbed by Yu Mou. In the process that grab a knife, at some face Liu some abdomen pricks two knives to cause Liu Mou to fall down repeatedly. Rise in Liu Mou in the process, yu Mou chops 3 knives some time toward Liu. Rise to leave and run to the direction of him BMW car in Liu Mou hind, yu Mou is chased after from back again chop two knives.
After this, before Yu Mou returns the treasure carriage of crossroad, expression slack, very nervous. Did not loosen all the time at there is a knife in some hand, until on the side somebody calls the police, the police came ability let go.
The 2nd part [punishment argue is logistic]
An extract of end of the limb that choose word is propositional, the fact is maintained (law is applicable) , quote responsibility allocates wait for legal principle, use up amid. This is the wonderful part of punishment argue logic.
1, the first focus of this case: It is self-defence or defense become too.
The problem of the first focus of this case is, rise to leave and run to the direction of him BMW car in Liu Mou hind, yu Mou is chased after from back again chop two knives, liu Mou disables via rescue death. So, yu Mou is such behavior self-defence or defense after all become too?
" criminal law " the 20th the 1st section provision: To make country, public interest, oneself or the person of other, belongings and other right are avoided suffer the illegal inroad that having, and adopt check the behavior of illegal enroach on, cause to person of illegal enroach on damage, belong to self-defence, do not bear criminal responsibility.
" criminal law " the 20th the 2nd section provision: Self-defence exceeds necessary limit to cause apparently great damage, ought to bear criminal responsibility, but ought to be reduced or absolve punishment.
" 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.
According to afore-mentioned legal provisions, in this case, if go up objectively to still have the dangerous sex that suffers illegal enroach on at some, so, yu Mou's behavior is to belong to self-defence; If go up objectively to had not sufferred the dangerous sex of illegal enroach on at some, so, yu Mou's behavior is to belong to defense to be become too. So, how to maintain after all whether to go up objectively to still have the dangerous sex that suffers illegal enroach on at some? This reasonable and legal result, conceal wonderfully in " punishment argue is logistic " in.
Go up objectively perhaps to still have the dangerous sex that suffers illegal enroach on at some, the dangerous sex that goes up objectively perhaps to had not sufferred illegal enroach on at some (be not " go up objectively to still have the dangerous sex that suffers illegal enroach on at some " ) . This is to have two limb that choose word only and the limb that choose word already an extract of end is propositional.
Because this case cannot deny at least " go up objectively to still have the dangerous sex that suffers illegal enroach on at some " the possibility that this fact exists (look on whole, the other side has 3 to come 4 people, the mood is abominable, and circumstances is critical, violent at that time degree is feral; Look on independent action, liu Mou still is running, and run the treasure carriage that direction is him, cannot eliminate completely to have the ability that continues to carry out illegal enroach on and fact likelihood) , so, if reach this case is certainly " the dangerous sex that goes up objectively to had not sufferred illegal enroach on at some " fact, that made " do not push piece " logical error.
Accordingly, although " go up objectively to still have the dangerous sex that suffers illegal enroach on at some " fact of this be related is existing probable sex (" go up objectively Yu Mou still has the dangerous sex that suffers illegal enroach on " of the fact complete, complete deny answer by check, if the word of to sue of check direction court) , also can according to " go up objectively to still have the dangerous sex that suffers illegal enroach on at some " will maintain, and cannot according to " the dangerous sex that goes up objectively to had not sufferred illegal enroach on at some " will conviction punishment, otherwise, this is the logistic mistake that attributes lawbreaking logistic regulation, also be to disobey at the same time " doubt blame from have no way light " of criminal law principle.
The extract of end of a limb that choose word is propositional, two when what its include or fact of many limb proposition (or law is applicable) , if we must hold actual objective fact,be to belong to among them which limb proposition after all fact, it is very difficult originally sometimes, it is impossible sometimes even, this is the main reason that difference of different point of view produces. At this moment, legal logic tells us, cognizance fact or law are applicable, if its " determinism " cannot maintain, answer with " most be helpful for a suspect " " possibility " fact or law are applicable to allow. In the meantime, concerned quote responsibility allocates an issue, also got be elaborated well and truly and apply in this wonderful extract proposition.
Visible, according to this case fact, the behavior of suspect Yu Mou ought to be maintained for self-defence, is not defensive become too.
2, the 2nd focus of this case: Hereat meaning is harmed (the death that send a person) blame or error cause person death pain.
The problem of the 2nd focus of this case is, if must say Yu Mou forms defense to be become too, so, is its behavior intended harm certainly (the death that send a person) blame? Is perhaps saying intended harm after all (the death that send a person) do blame or error cause person death pain?
" criminal law " the 234th the 1st section provision: Harm other body intentionally, handle battle of 3 years of the following set term of imprisonments, arrest or control.
" criminal law " the 234th the 2nd section provision: Blame of the money before making, send a person to be weighed, be in what 10 years 3 years; of the following set term of imprisonment sends above to the person dies or send a person to weigh an injury to cause serious disability with particularly cruel method, be in set term of imprisonment of 10 years of above, life imprisonment or capital punishment. This law has a regulation additionally, according to regulation.
" criminal law " the 233rd regulation: Error sends a person to die, be in 3 years of above 7 years plot of; of the following set term of imprisonment is smaller, be in 3 years of the following set term of imprisonments. This law has a regulation additionally, according to regulation.
" criminal law " the 14th regulation sets the 1st times: The behavior that knows perfectly well oneself can produce the result that jeopardizes a society, and hope or indulge happens this kind as a result, make crime consequently, hereat meaning commits a crime.
" criminal law " the 15th regulation sets the 1st times: Ought to foreknow the result that oneself behavior may produce harm society, because neglectful and did not foreknow, perhaps had foreknown and credulous can avoid, as a result produces this kind of result, it is error crime.
According to afore-mentioned legal provisions, pass the guilty person that become to defense, when be being handled ought to correct and applicable criminal law is divided criterion concerned clause, lawfully extenuation perhaps absolves punishment. From adjudgement practice looks, should send a person to weigh an injury to perhaps die to defending, form error to send a person to weigh a blame or error causes person death pain, respectively according to criminal law the 235th is mixed the extent of corresponding measurement of penalty of 233 regulations reduces punishment; If have probation requirement, OK and applicable probation; If guilty clue is slight,do not need to sentence penalty, ought to absolve punishment. Blame of intended to forming harm is intended perhaps of homicide, respectively according to penal code the 234th is mixed the extent of corresponding measurement of penalty of the 232nd regulation ought to reduce punishment; If have probation requirement, OK and applicable probation; If the clue is slight,do not need to sentence penalty, ought to absolve punishment.
Ought to point out, although cause,do not answer to defensive action some is great damage, but objective fact can prove defensive person is subjective go up to be not had really intended, also do not have unpremeditated crime, cause as a result of the reason that cannot be defied or cannot foreknow however, belong to accident, should not bear criminal responsibility.
In this case, besides " accident " beyond, below the premise that forms defense to be become too, perhaps harm the death that send a person intentionally at some, perhaps cause person death at some error. This also is to have two limb that choose word only and the limb that choose word already an extract of end is propositional.
Because this case cannot deny at least " send a person to die at some error " the possibility that the fact exists (here " error " ought to understand for, look on whole, although the other side has 3 to come 4 people, include Liu Mou, but the capacity that the other side has not had illegal inroad and subjective and intended, yu Mou ought to foreknow however and did not foreknow; Look on independent action, if deadly is in front 5 knives, because belong to self-defence, do not make crime; If be not deadlily,be in front 5 knives however the 2 knives from the back, and Yu Mou ought to foreknow to this and did not foreknow) , so, if reach this case is certainly " Yu Mou harms the death that send a person intentionally " fact, that made likewise " do not push piece " logical error.
Accordingly, although " send a person to die at some error " fact of this be related is existing probable sex (" Yu Mou error sends a person to die " of the fact complete, complete deny just should assume quote responsibility by check, if the word of to sue of check direction court) , also can according to " Yu Mou error sends a person to die " will maintain, and cannot according to " Yu Mou harms the death that send a person intentionally " will conviction punishment, otherwise, this is the logistic mistake that attributes lawbreaking logistic regulation, also be to disobey at the same time " doubt blame from have no way light " of criminal law principle.
The place on put together is narrated, the Yu Mou in this case ought to be to belong to self-defence, do not make crime; If be to belong to defense to be become too, also ought to be to belong to error to cause person death pain, in the meantime, yu Mou still has confess one's crime clue (Yu Mou stays in the spot all the time, belong to confess one's crime, OK and light or reduce punishment) , such, ought to according to " criminal law " the 233rd " 3 years of above 7 years of the following set term of imprisonments " regulation, be united in wedlock " criminal law " the 20th the 2nd " ought to be reduced or absolve punishment " regulation, to this case suspect Yu Mou gives reduce punishment (here " reduce " ought to be 3 years the following, do not include this number 3 years, can consider applicable temporary suspension of the execution of a sentence) perhaps absolve punishment.
