Lawyer's character

“The facts of this case have been clearly investigated, the court investigation has ended, and now the court debate has begun. The court debate mainly revolves around the disputed facts that have not been certified by the court and the issue of how the law should be applied based on the facts.

The prosecutor will speak first. "The chief judge said.

"...The defendant Dou Tao beat others at will with a weapon. The circumstances were egregious. His behavior constituted the crime of provoking trouble and should be punished in accordance with the law. In view of the fact that he truthfully confessed his crime after being brought to justice, and he actively compensated the victim for his economic losses, he obtained understanding.

We recommend that defendant Dou Tao be placed under surveillance for two years. "After the prosecutor finished speaking, he looked at the defendant's seat and said to himself: Since you don't accept probation, let's change the control.

(Article 38 of the Criminal Law stipulates that the period of control shall be not less than three months but not more than two years.

Sentences of control can be based on the circumstances of the crime and prohibit criminals from engaging in specific activities, entering specific areas, places, and contacting specific people during the execution period.

Community corrections are implemented in accordance with the law for criminals sentenced to public surveillance.

Anyone who violates the prohibition order stipulated in paragraph 2 shall be punished by the public security organs in accordance with the provisions of the "Public Security Administration Punishment Law of the People's Republic of China". )

"The defendant Dou Tao will defend himself," the presiding judge said.

"I believe that my actions do not constitute the crime of provoking trouble..." Dou Tao kept saying that he did not plead guilty.

"Defendant Dou Tao's defender expressed his defense opinion," the presiding judge said.

"Presiding Judge, Judge: The defender believes that defendant Dou Tao's behavior does not constitute the crime of provocation. The specific reasons are as follows:

In this case, the defendant Dou Tao contracted to plant fruit trees on wasteland in the village. After the expiration of the contract, he had priority in contracting under the same conditions as stipulated in the contract. In the absence of explicitly giving up the contracting rights, the village committee should not take back the contract. Its land is leased separately.

According to the evidence in this case provided by the prosecutor, Dou Tao took the initiative to pay rent to the village committee many times, but the village committee staff refused for various reasons, resulting in Dou Tao not renewing the rent payment.

Even if the village committee needs to take back the land, it should compensate Dou Tao for the fruit trees and other ground objects he planted through negotiation.

After the incident of this case, the subsequent contractor of the land voluntarily compensated the fruit trees and ground objects planted by Dou Tao. The compensation amount was as high as 950,000 yuan, and it also shouldered Zhang Dabao’s medical expenses. It can be seen from this that the village committee Before the incident, he did not negotiate with Dou Tao about compensation and directly organized people to go to the orchard to forcibly cut down the fruit trees to reclaim the land. This caused huge losses to Dou Tao.

After the contract expired, in order to lease the land to others, the village committee deliberately did not collect the rent paid by Dou Tao, and used simple and crude methods to organize more than ten people to go to the orchard to cut down fruit trees, which triggered a conflict between the two parties. Therefore, the village committee bears primary fault responsibility for the occurrence of this case.

At the time of the incident, Dou Tao's wife Jiang Xue was violently controlled by security guards, and the fruit trees in the orchard were cut down. Under such circumstances, in order to protect his legal property, Dou Tao drove away the relevant personnel with a kitchen knife and slightly injured one person. .

Defendant Dou Tao subjectively does not meet the constituent elements of the crime of provoking troubles such as seeking excitement, venting emotions, acting tyrannically and causing trouble without causing trouble, and using excuses to cause trouble. Therefore, it cannot be determined as "beating others at will with a weapon."

Moreover, when the people sent by the village committee were evacuating the orchard, Dou Tao did not intercept them with a knife. Therefore, it cannot be regarded as a "trouble-making" type of behavior.

To sum up, the defender believes that Dou Tao’s behavior does not constitute the crime of provoking trouble. Please ask the court to sentence the defendant Dou Tao not guilty. complete! "Fang Yi said.

Perhaps because he felt that this case was not complicated and the prosecution and defense had fully expressed their defense opinions, the presiding judge did not allow the prosecution and defense to defend each other after Fang Yi finished his defense opinions.

…

"The county procuratorate prosecuted the case of defendant Dou Tao for provoking quarrels and provoking trouble. This collegial panel conducted a court hearing, conducted court investigations and court debates, and listened to the prosecutor's accusations, the defendant's opinions, the defendant's defense and statement, and the defender's defense. opinion, the court hearing is over.

The court will now be adjourned for ten minutes. The collegial panel will conduct deliberations and then pronounce the verdict in court. "After the presiding judge banged his gavel, the members of the collegial panel exited the court.

…

Twenty minutes later, Jiang Xue was sitting in the auditorium, feeling a little distracted. The sound of the presiding judge reading out the verdict kept echoing in her ears.

The court held that the defendant Dou Tao beat others at will and the circumstances were egregious. His behavior constituted the crime of provoking trouble and should be punished in accordance with the law. In view of the circumstances of his being given a lighter punishment according to law. In accordance with the provisions of Article 293, Paragraph 1, Item 1 of the Criminal Law of the People's Republic of China, the verdict is that the defendant Dou Tao is guilty of picking quarrels and provoking trouble and is sentenced to one year and six months of surveillance.

The control was carried out outside prison and community corrections were carried out, so Dou Tao was not sent to the detention center after the sentencing.

Zhou Ying, who was sitting next to Fang Yi, felt aggrieved. In her opinion, Fang Yi defended the case very well and everything was explained clearly, so why did the court still sentence her like this.

Previously, the court sentenced him to one year of probation, but now he is directly sentenced to one year and six months of surveillance. It is also a sentence outside prison, and it is also supervised by the police station and the community, but the period is six months longer. What does this mean? !

But after thinking about it again, she suddenly understood that the term of a surveillance sentence is calculated from the date of execution of the judgment. If the person is detained before the execution of the judgment, one day of detention will be equivalent to two days of the sentence. Dou Tao has been detained for a period of time before, but after discounting it, the actual period of control is only one year, which is equivalent to changing the soup without changing the medicine. It's high, it's really high!

"Lawyer Fang, this..." Dou Tao walked to the defense table and looked at Fang Yi. He was very dissatisfied with the court's decision. This matter was related to his reputation and it was a serious matter.

"Appeal, there is only one way to appeal." Fang Yi said firmly.

The court's decision surprised him. He was previously sentenced to probation, but was sent back for a retrial by the second-instance court. Now it is changed to a control sentence. This is not a matter of sentencing at all, but a matter of unclear facts and improper conviction.

"Is it possible to appeal? It won't be sent back for retrial, right?" Jiang Xue walked over, wondering if the middle-aged male lawyer in front of her was trying to pay for his own lawyer's fees. There was distrust in her eyes. Light.

“According to the provisions of Article 236 of the Criminal Procedure Law, if the People’s Court of second instance deems that the facts of the original judgment are unclear or the evidence is insufficient, it may rule to revoke the original judgment and remand the case to the People’s Court of first instance for a new trial.

If the defendant files an appeal after the original People's Court makes a judgment on a criminal case that has been remanded for retrial, the second-instance People's Court shall make a judgment or ruling in accordance with the law and shall not remand the case back to the original People's Court for a new trial.

According to the above provisions, remand for retrial can only be conducted once. If Dou Tao appeals, the Intermediate Court can only conduct a review and cannot remand for retrial. "Fang Yi thought for a while and explained.

"Then..." Just when Jiang Xue was hesitant, Dou Tao spoke: "The appeal cannot be left alone."

"Okay, I have prepared the appeal in the past two days. After the criminal judgment is issued, I will submit the appeal to the court." Fang Yi said.

"What about the lawyer's fees..." Jiang Xue asked.

"The lawyer's fee for the second trial is 30,000 yuan. I'll give you a discount." Fang Yi said.

Jiang Xue wanted to bargain, but Fang Yi had already said that this was a discounted price, so she couldn't lower the price anymore. After all, the second trial had to rely on others, and she couldn't offend Lawyer Fang.

"Okay, you prepare the contract. I will ask Jiang Xue to go to you to go through the entrustment procedures in the next few days." Dou Tao is now ready to go all out. For the sake of his innocence, he is ready to sue to the end.

A few days later, the county court's criminal judgment was issued. The day after receiving the criminal judgment, Fang Yi submitted an appeal and entrustment procedures to the county court.

After learning that the case file had been transferred to the Intermediate People's Court, Fang Yi took Zhou Ying to the Municipal Procuratorate to discuss the circumstances of Dou Tao's case. However, Prosecutor Wang, who was in charge of the case, did not seem to be interested in Fang Yi's opinion, so Fang Yi and the two left their lawyers' opinions. Later, he returned to the law firm.

After lunch, Fang Yi and Zhou Ying returned to the office and sat opposite each other. Zhou Ying chatted casually: "Lawyer Fang, do you think there is hope for the second trial of this case?"

"There is always hope, but it may not be easy to realize. Now we can only place our hope on the judge of the second instance. This means leaving everything to fate. Luck is the most difficult thing to figure out, and it is also the most magical.

Why...are you discouraged? "Fang Yi looked at her.

"No, I just feel a little uncomfortable. I lost the first case." Zhou Ying pouted.

Fang Yi smiled: "You are only half right. We only lost the first trial, and there is hope for a comeback in the second trial. You must have firm belief. Faith is also a kind of power. Sometimes it will affect your behavior and then the results. "

Having said that, Fang Yi actually didn't know for sure.

"Really? I feel much better when you say that. I'm going to investigate the case now and prepare for the second trial." Zhou Ying said with bright eyes.

"By the way, I have a meeting at the detention center tomorrow morning. Do you want to go?" Fang Yi said with a smile.

"Go, I haven't been to the detention center yet. I'll go and see it with you." Zhou Ying said with a smile.

Half a month later, the second trial of Dou Tao's picking quarrels and provoking trouble case opened. Jiang Xue was the only one in the auditorium.

Fang Yi and Zhou Ying sat at the defense table and listened to the judge sitting above reading the first-instance verdict. At the prosecutor's table, two male prosecutors were writing something. The one sitting at the top was Prosecutor Wang, whom Fang Yi had met before.

"The appellant Dou Tao will read the appeal first," the presiding judge said confidently.

Dou Tao, who was sitting on the defendant's bench, took out the appeal and read it according to the script.

"The appellant's defense lawyer issued the reasons for the appeal." After the presiding judge finished speaking, he looked at Fang Yi.

"Presiding Judge, Judge: The defender believes that the facts determined by the court of first instance were unclear and the law was improperly applied. The appellant did not commit the crime of provoking trouble and should be found to be in legitimate defense. The reasons for the appeal are as follows:

First, the appellant’s behavior was self-defense.

After the appellant's land contract expired, he negotiated with the village committee many times to renew the land contract and actively requested to pay rent. However, the village committee rejected the appellant's request for various reasons.

Afterwards, the village committee required the appellant to return the land and sent more than ten people, including security guards and Zhang Dabao, to the appellant's orchard to forcibly cut down the peach and apple trees he had worked so hard to plant.

In order to protect her legal property, the appellant's wife stepped forward to stop the other party's behavior, but was pulled aside by the security guard, ordered to squat down, and punched. Zhang Dabao and others began to cut down fruit trees.

In order to protect his legal property and the safety of his wife, the appellant brandished a kitchen knife to drive away the security guard, Zhang Dabao and others. His behavior was self-defense and was not a random beating of others.

Second, the appellant’s behavior did not meet the constituent elements of the crime of picking quarrels and provoking trouble.

At the time of the incident, the security guards and temporary employees sent by the village committee broke into the land contracted by the appellant and first injured people and destroyed property in the orchard. It was not that the appellant was seeking excitement, venting his emotions, being competitive, and causing trouble over nothing.

The appellant did not have the subjective intention to commit the crime of picking quarrels and provoking troubles, and objectively there was no fact of picking quarrels and provoking troubles, so it should not be found to constitute the crime of picking quarrels and provoking troubles.

Third, the appellant’s behavior was not harmful and should not be held criminally responsible.

The appellant Dou Tao held the kitchen knife mainly to drive away the security guards and Zhang Dabao and others who broke into the orchard. In the process, he accidentally injured Zhang Dabao.

After Zhang Dabao was chopped, the appellant did not continue to beat Zhang Dabao, nor did he chase and block the retreating people. His behavior was not harmful and Zhang Dabao had forgiven him, so he should not be held criminally responsible.

In summary, the defender believes that the appellant Dou Tao does not constitute the crime of provocation and asks the court to acquit him in accordance with the law. complete. "Fang Yi said.

"Appellant Dou Tao, do you have any objection to the facts and charges found in the first-instance judgment?" the presiding judge asked.

"I have objections. I do not recognize the facts and charges found in the first instance. It was the village committee who sent security guards and Zhang Dabao and others who broke into my orchard first. After that, they beat and kicked my wife and cut down my fruit trees. I used the kitchen knife to scare them in self-defense. As for the injury to Zhang Dabao, it was purely an accident..." Dou Tao defended.

“The prosecutor will now question the appellant on the facts found in the first-instance judgment,” the presiding judge said.

The content of Prosecutor Wang's questions was not much different from the questions asked by the prosecutor of the County Procuratorate during the first trial. Fang Yi then also asked the appellant questions. The content of the questions was similar to that in the first trial and will not be repeated.

"The following is the presentation of evidence and cross-examination. Do the prosecutors, defenders, and appellant have any new evidence that needs to be submitted?" the presiding judge asked.

"No." All three parties said.

…

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

Let me first give the floor to the appellant Dou Tao. "The chief judge said.

"Presiding judge, judge, I think my actions were self-defense, not provocation..." Dou Tao said what was stated in the appeal.

The presiding judge decisively terminated his speech after asking him if he had any new opinions.

"The defender of the appellant Dou Tao has spoken," the presiding judge said.

"Presiding judge, judge:

According to the provisions of Article 20 of the Criminal Law, in order to protect the country, public interests, the person, property and other rights of oneself or others from ongoing illegal infringement, actions taken to stop the illegal infringement will cause consequences to the illegal infringer. If the damage is caused, it is a legitimate defense and will not bear criminal responsibility.

The defender believes that defendant Dou Tao's behavior complies with the above-mentioned legal provisions and should be deemed as legitimate defense and does not constitute the crime of provoking trouble. The reasons are as follows:

1. At the time of the incident, the defendant Dou Tao was facing actual illegal infringement.

1. The village committee’s purpose in forcibly taking back the land is unjustified.

According to the stipulations in the land contract contract, the appellant Dou Tao shall enjoy the priority right to contract under the same conditions after the expiration of the contract. According to the evidence on record, the village convened a meeting of the two committees and a villagers’ representative meeting to take back the land on the grounds that Dou Tao failed to pay the land contract fee, which was obviously inconsistent with the facts.

The village committee took back the land contracted by the appellant Dou Tao and leased it to others without explicitly giving up the contracting rights, which was an improper purpose.

2. The village committee’s forcible resumption of land was unfair.

The land contract contract signed between the village committee and the appellant Dou Tao did not stipulate the disposal of the above-ground properties after the expiration of the term. However, the village committee has issued a certificate that the above-ground properties on the contracted land are the legal property of the appellant.

If the village committee needs to take back the land, it should negotiate with the appellant Dou Tao about compensation for the land on the ground. If negotiation fails, both parties should resolve the matter through litigation.

Returning to this case, the village committee did not communicate with the appellant about compensation for the land on the ground before taking back the land, nor did it resolve the issue through judicial channels. It only informed the appellant to return the land in the form of a notice. After that, due to the dispute between the village committee and the appeal When the two parties failed to reach an agreement, the village committee appointed security guards and temporary personnel to forcibly cut down the fruit trees. As a result, the legal property of the appellant Dou Tao was infringed, and his wife was forcibly controlled by the security guards during the obstruction process.

Therefore, the actions of the village committee are illegal and constitute unlawful infringement.

2. The appellant Dou Tao’s defense against the ongoing illegal infringement is objectively urgent.

The ‘ongoing illegal infringement’ stipulated in Article 20 of the Criminal Law means that the illegal infringement has begun and has not yet ended, and is in the process of being implemented.

In this case, temporary employee Zhang Dabao and other personnel broke into the appellant's orchard and began cutting down fruit trees. The appellant's wife stepped forward to stop her, but was pulled aside by security guards and forcibly controlled.

In this case, the appellant Dou Tao held a kitchen knife and drove away the intruder. His purpose was to stop the ongoing illegal behavior and protect the safety of his wife and his family's legal property. Therefore, Dou Tao's behavior constituted legitimate defense. Urgency requirements in the essentials.

3. The appellant Dou Tao is subjectively justified.

In criminal law theory, the person who performs legitimate defense should have a sense of defense. Awareness of defense includes: 1. The actor is aware that illegal infringement has occurred and is ongoing; 2. The actor's purpose is to protect the country, public interests, the person, property and other rights of himself or others from ongoing illegal infringement.

In this case, after the expiration of the contract period, the appellant Dou Tao took the initiative to request payment of the land contract payment, but was rejected by the village committee for various reasons. When the appellant Dou Tao did not explicitly give up the contracting rights, and the village committee did not negotiate with Dou Tao about compensation for the fruit trees in the orchard, the village committee sent people to his orchard to cut down the fruit trees, infringing Dou Tao's legal property.

In the face of illegal infringement, if the appellant Dou Tao does not take defensive measures, his legitimate rights and interests will surely suffer huge losses. Therefore, Dou Tao's defensive awareness is legitimate.

4. The defensive behavior carried out by the appellant Dou Tao was only against the unlawful intruder.

According to the provisions of Article 20 of the Criminal Law, legitimate defense must be directed at the person who is committing unlawful infringement. The purpose of legitimate defense is to stop ongoing unlawful infringement.

In this case, in order to protect his legal property, the appellant Dou Tao had to use a kitchen knife to drive away the illegal intruders who broke into his orchard and forcibly cut down fruit trees. The victim Zhang Dabao was one of the illegal intruders.

It can be seen that the target of the appellant Dou Tao's defensive behavior was the illegal offender, not innocent passers-by or the public.

5. The behavior of the appellant Dou Tao does not constitute excessive defense.

Excessive defense generally includes two aspects. On the one hand, the perpetrator's defensive behavior obviously exceeds the objective needs of defense. For example, the illegal intruder has stopped and the perpetrator still pursues him; on the other hand, it relates to the damage that may be caused by the illegal infringement. In comparison, the losses caused by defensive behavior are too significant.

In this case, the appellant Dou Tao's behavior only caused minor injuries to the illegal intruder Zhang Dabao. Compared with the major property losses that the appellant Dou Tao may have suffered, his defensive behavior did not obviously exceed the necessary limit, nor did he cause major damage to the other party.

To sum up, the defender believes that the behavior of the appellant Dou Tao is self-defense and does not constitute the crime of provoking trouble. In addition, the defender believes that the classification of this case as legitimate defense will help to highlight the value orientation of the law and cultivate good social ethics. Please ask the court to rule according to law, over! "Fang Yi said.

"The prosecutor will now speak," the presiding judge said.

"Presiding judge, judge: We believe that the facts determined by the court of first instance are clear, the evidence is indeed sufficient, and the conviction and sentencing are appropriate. We ask the court to reject the appellant's claim in accordance with the law." Prosecutor Wang said.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“In response to the defender’s defense, we mainly express the following views:

We believe that the appellant's actions did not constitute self-defense.

After the land contract expired, the two parties failed to reach an agreement on the renewal. After that, the appellant Dou Tao occupied the land for two years and failed to pay the land rent. His behavior has violated the interests of the village collective. During the village committee's resumption of land, Dou Tao beat the security guard with a kitchen knife and chopped Zhang Dabao into minor injuries.

According to the provisions of Article 2 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Picking Quarrels and Provoking Trouble", anyone who beats others at will, disrupts social order, and falls under any of the following circumstances shall be deemed to be under Article 200 of the Criminal Law The 'egregious circumstances' stipulated in Article 93, Paragraph 1, Item 1,... (4) Beating others at will with a weapon...

The appellant Dou Tao randomly beat others with a kitchen knife, causing minor injuries to one person. According to the provisions of the "Criminal Law of the People's Republic of China" and the above-mentioned judicial interpretation, his behavior constituted the crime of picking quarrels and provoking trouble. Therefore, the crime and sentence determined by the court of first instance were appropriate. complete. "Inspector Wang said.

“The defender can respond to the prosecutor’s opinions,” the presiding judge said.

Zhou Ying, who was sitting next to Fang Yi, could not speak during the trial and could only encourage Fang Yi secretly: Lawyer Fang, come on, defend them to death.

“Based on the prosecutor’s defense opinions and response, the defender issued the following defense opinions:

The defender believes that the appellant Dou Tao did not occupy the village collective land. After the land contract expired, the appellant approached the village committee to discuss the renewal of the contract, but failed to reach an agreement. After that, the village committee did not ask Dou Tao to Tao returned the land. Dou Tao took the initiative to approach the village committee many times and asked for rent payment, but was rejected by the village committee.

In October last year, the village committee notified Dou Tao in writing to return the land, but did not mention compensation. Dou Tao believed that the fruit trees in the orchard belonged to his personal property, and the village committee should provide certain compensation for the returned land (in fact, the village committee approved After the meeting, the subsequent lessee negotiated with Dou Tao, and the subsequent lessee compensated for the fruit trees and other land in Dou Tao's orchard), but the village committee sent people to try to forcibly cut down the fruit trees and take back the land.

The defender believes that Dou Tao's behavior does not constitute picking quarrels and provoking trouble, nor does it comply with the provisions of Article 2, Item 4 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Picking Quarrels and Provoking Trouble", which stipulates that "beating others at will with a weapon" 'Case.

Article 1 of the above-mentioned judicial interpretation stipulates that any person who commits acts stipulated in Article 293 of the Criminal Law in order to seek excitement, vent his emotions, show off his strength, etc., and cause trouble over nothing, shall be deemed to be "picking quarrels and provoking trouble." If the perpetrator causes trouble due to occasional conflicts and disputes in daily life and commits acts stipulated in Article 293 of the Criminal Law, it shall be deemed as "picking quarrels and provoking trouble", but the conflict was intentionally caused by the victim or the victim was responsible for the intensification of the conflict. Except those with primary responsibility.

According to the above judicial interpretation, it can be seen that determining whether the appellant Dou Tao in this case constitutes the crime of picking quarrels and provoking trouble must be analyzed from both subjective and objective aspects. Not only must the circumstances stipulated in the above judicial interpretations exist objectively, but subjectively the perpetrator must also have the intention to seek excitement, vent emotions, act arrogantly, etc., or have the intention to cause trouble for no reason or for any reason.

In this case, the village committee sent people to break into the appellant Dou Tao's orchard and forcibly cut down the fruit trees, which violated the appellant's legitimate rights and interests and intensified the conflict between the two parties. The village committee should bear the main responsibility.

Therefore, the behavior of the appellant Dou Tao was legitimate, and he did not subjectively intend to cause trouble for nothing, and should not constitute the crime of picking quarrels and provoking trouble. complete. "Fang Yi said.

…