Beijing Shi lawyer: medicine Jiaxin should not be sentenced to death immediately should be sentenced to a reprieve
April 22, 2011 in Xi'an City Intermediate People's Court, the first instance verdict, the defendant medicine Jiaxin committed the crime of intentional homicide, was sentenced to death, deprived of political rights for life. The court held that the defendant medicine jiaxin accompanied by his parents to the public security organs, and truthfully confessed the facts of the crime, belongs to the surrender. Medicine Jiaxin traffic collision after murder, does not belong to the murder of passion. Medicine Jiaxin drive the victim ZhangMiao knocked down, not rescue, but kill the mouth, the motive is extremely despicable, subjective malignancy is very deep, the means is particularly cruel, the circumstances are particularly bad, the consequences are particularly serious, is the crime is extremely serious, should be punished according to law. Although the circumstances of his surrender, but still not enough to mitigate the punishment, so according to the law to make the foregoing sentence.
China's criminal law, article 67, paragraph 1, for the surrender of criminals, can be mitigated or reduced punishment. Among them, the lesser offense, can be exempted from punishment. However, whether or not to mitigate, reduce or exempt punishment, can not be generalized. The supreme people's court on February 8, 2010 on the implementation of several opinions on the leniency of the criminal policy of the first paragraph of article 17, for the surrender of the defendant, in addition to the extremely serious crimes, the subjective malice is very deep, the danger of the person is very great, or maliciously use the surrender to circumvent the legal sanctions, generally should be lenient punishment.
That is to say, the defendant should be generally lenient punishment, but there are two exceptions, even if there is a surrender can not be lenient punishment: the first, the crime is extremely serious, the subjective malignancy of the deepest, the great danger to the person; the second, maliciously use the surrender to avoid legal sanctions.
The drug Jiaxin case I think is an ordinary criminal case, why is the whole country concerned about, there is a very important reason is that the media hype caused. The media in order to pursue visibility, to catch the eye of some words to attract everyone speculation, began to identify the drug Jiaxin for the second generation of the rich, the second generation of government officials, and finally found that it is not what is not a rich or noble family, and finally seized the University of the lack of ideological and moral education, everyone speculation, in fact, that the young man committed crimes is not the lack of education.
So in my opinion, the case is also an ordinary criminal case, the reason why the attention is so high is actually the media pushed the early into the reason why the death penalty was immediately executed, I think it is also the judge was kidnapped by the public opinion of the early into.
The murderer is not the subjective malignancy is extremely deep, the means is particularly cruel, the plot is particularly bad, the consequences are particularly serious, but why other murderers can be sentenced to death, medicine Jiaxin to be sentenced to death, I think it should not. The first time I saw the movie, I was in the middle of the movie, and I was in the middle of the movie.
Why was sentenced to death immediately. I think the judge let the public opinion kidnapping results. Xi'an Intermediate Court hearing the case of medicine Jiaxin, the scene of 500 people, each received a "spectators to listen to the case feedback form", the questionnaire in addition to the trial of the panel members list, there are two questions: What do you think of the medicine Jiaxin should be sentenced to what penalty? You listen to the case of the trial of the specific practices and recommendations?
That is to say, the judge of the Xi'an Intermediate Court in the trial of the case is fully consider public opinion, for fear that the verdict of the public anger, put himself on the cusp of the storm. But judges are supposed to be loyal to the facts, and the law, not the concerns and good or bad of the general public. That's why I say the verdict in the case could have been a suspended death sentence, but because the judge was kidnapped by public opinion and lost the ability to make his own judgment in accordance with the law, he could only go along with public opinion in sentencing Yao Jiaxin to death.
Public opinion is sometimes out of touch with the law, which means it is reasonable but may not be legal. Law and reason are not completely unified, and are sometimes two different things. Public opinion comes from and from the media, the media reporter's report professional, must be factual, the reporter media have seen the case file, met with the suspects, so the media's report is sometimes not necessarily accurate. But the general public generally believe the media. This creates a strong public pressure, the judge had to yield.
So according to my experience and knowledge, I think the drug Jiaxin should not be sentenced to death immediately, at most should be sentenced to death sentence.
◆ Below is a murder case, also two trials are sentenced to death, also are found to have the circumstances of the surrender, and finally the Supreme Court in the death penalty review stage, ruled that the death penalty will not be approved, and sent back to reiterate the re-sentencing of the death sentence into a suspended sentence case. And the drug Jiaxin case is exactly the same.
Suixi, Guangdong Province, the director of the killing of the deputy director of the case of the retrial was commuted to a suspended sentence
Suixi County, the former director of the Bureau of Marine and Fisheries Xuan Xiong 4 years ago killed the deputy director of the first and second trials were sentenced to death
4 years ago, then director of Guangdong Province, Suixi County, Marine and Fisheries Bureau of Xuan Xiong in the office of the Deputy Secretary will be killed. The case by the first and second trial, Xuan Xiong were sentenced to death, but last year, the Supreme People's Court on the case of death penalty review, Xuan Xiong have surrendered, the case will be sent back for retrial. The reporter learned yesterday that Xuan Xiong has been sentenced to death by the Guangdong Provincial High Court, suspended for two years.
Director of the office to kill the deputy director
Xuan Xiong from July 1998 as Suixi County Marine and Fisheries Bureau Director. 2006 December, Xuan Xiong heard people talking about the deputy director Chen Zhenhua will be replaced when he was the director of the Chen Zhenhua that Chen Zhenhua to seize its position, so he was dissatisfied with the idea of killing Chen Zhenhua.
January 3, 2007 morning 9 o'clock, Xuan Xiong saw Chen Zhenhua in the office on duty, then took out a wrench hidden in the body into Chen Zhenhua's office, Chen Zhenhua not spare wrench to hit Chen Zhenhua's head, Chen Zhenhua fell to the ground, he used a wrench to hit Chen Zhenhua's head and face a few times to make it can not be moved, and then with a box cutter Chen Zhenhua's hands and wrists of the blood vessels cut off. Xuan Xiong then wrapped the cutter and wrench in newspaper and left the scene.
At 10:51 a.m. on the same day, Xuan Xiong, accompanied by his relatives, went to Suicheng police station to surrender.
The first and second trials both sentenced to death
The case has attracted widespread public attention. In the first trial, Zhanjiang City, the Third People's Hospital Psychiatric Forensic Institute, Xuan Xiong had suffered from mild depression, but in this case was not in the onset of depression, the ability to recognize and control the crime without obvious weakening, assessed as having full criminal responsibility.
On December 17, 2007, the Zhanjiang City Intermediate Court made a first-instance decision on the case. The court held that Xuan Xiong's behavior has constituted the crime of intentional homicide, the crime automatically surrendered, and truthfully confessed to their crimes, is the surrender, but Xuan Xiong's motive is despicable, and the means of the crime is extremely cruel, the circumstances and the consequences of the particularly serious, although the circumstances of the surrender, is not enough to mitigate his punishment. Xuan Xiong was sentenced to death in the first trial.
The case of the second trial, the Guangdong Provincial Institute of Mental Health issued an appraisal, that Xuan Xiong at the time of the crime in the mild depression disease, social functioning is mildly impaired, but this is not a serious mental illness, Xuan Xiong has the ability to full responsibility. September 4, 2009, the Guangdong Provincial High Court of the second trial upheld the original sentence.
The reason for the lighter penalty: surrender
After the verdict of the second trial came into effect, Xuan Xiong's case was reported to the Supreme People's Court for death penalty review. During the death penalty review, Beijing lawyer Sun Zhongwei, who is known as "China's first death penalty defender," served as Xuan Xiong's defender.
Sun argued that the motive of the case was the key. In the "Death Penalty Review Lawyer's Opinion" that Sun Zhongwei submitted to the Supreme Court, he wrote: "According to common sense, the defendant could not have killed the victim because he was about to take over his own promotion to a regular post, which is not in line with the logic of the Chinese officialdom."
The Supreme People's Court reviewed the case and found that the defendant Xuan Xiong had intentionally and unlawfully deprived others of their lives, and that his behavior constituted the crime of intentional homicide. Xuan Xiong crime means cruelty, serious consequences, should be punished according to law. Xuan Xiong after the crime in the persuasion of relatives and accompanied by surrender, according to the law can be mitigated punishment, it may not be sentenced to death, immediate execution. Decided not to approve and revoke the high people's court of guangdong province to maintain the court of first instance to intentional homicide sentenced the defendant XuanXiong death penalty criminal verdict, remanded for retrial.
A few days ago, the Guangdong Provincial Higher People's Court, after hearing that "in view of Xuan Xiong after the crime can be in the persuasion of relatives, accompanied by surrender, according to the law can be a lighter punishment, do not have to be executed immediately." Finally Xuan Xiong was sentenced to death for the crime of intentional homicide, suspended for two years.
Pharmaceutical Jiaxin will not be sentenced to death
April 01, 2011 Source: Fabonet - Fabon Times By: Wan Fangliang Lawyer I say a couple of sentences (82 people involved)
----- lawyers to analyze the conviction of intentional homicide of Pharmaceutical Jiaxin sentencing
Pharmaceutical Jiaxin intentional homicide after the occurrence of the case, the major media scramble to report, a stone stirred up a thousand layers of waves. Attracted from more people's attention, "rich second generation", "official second generation" has become the object of people's verbal attack. This reflects a number of social phenomena, it is worth the world to think. Netizens and the media basically agreed that medicine Jiaxin intentional homicide has been "inhumane", "the most heinous crimes", the crimes committed can not be forgiven, should be killed and fast people's hearts. But the lawyer analyzed from the legal point of view, if the media reports are true, then the drug Jiaxin should not be sentenced to death.
From the emotional point of view, Yao Jiaxin deserves to die, but from the legal point of view, this case indeed will not be sentenced to death. I say this may hurt the feelings of netizens, here I apologize. However, it should be noted that the court trial case is based on facts, to the law as a criterion. This case there are many legal mitigating or discretionary mitigating circumstances, even though the drug Jiaxin stabbed eight people to death, will not be sentenced to death.
First, in this case, the drug Jiaxin has surrendered, which is a discretionary mitigating or extenuating circumstance under the law.
According to media reports, medicine Jiaxin October 20 night second hit by traffic police control, did not confess before the collision and stabbed Zhangmou fact; October 21, Guo Du police station again found medicine Jiaxin investigation that night hit the situation, medicine Jiaxin once again hid the fact that the first hit; Until October 23, medicine Jiaxin accompanied by his parents, in the public security organs, explaining the facts of its hit The fact that the public security organs at the beginning did not have the same understanding of the facts of the murder after the collision. This shows that the public security organs at first did not grasp the criminal facts of the case of intentional homicide of drug jiaxin, the crime of intentional homicide of drug jiaxin still do not understand. If the public security organs know that the victim Zhang Meng is drug Jiaxin killed or have significant suspicion of crime, drug Jiaxin should be taken corresponding coercive measures, and it is not possible to return home, and parents said also hit a person, so that the last in the parents accompanied by the public security organs to surrender to the police. From this fact, according to the "Chinese people's *** and state criminal law" article 67 and "the supreme people's court on the treatment of self-surrender and meritorious concrete application of the law on a number of issues of interpretation" article 1 of the provisions of the drug Jiaxin's behavior, in line with the law on the self-surrender, can be in the range of the legal penalty of light or mitigated punishment. And article 232 of China's criminal law: intentional homicide, shall be sentenced to death, life imprisonment or more than ten years of fixed-term imprisonment; the circumstances are less serious, shall be sentenced to more than three years to less than ten years of fixed-term imprisonment. Therefore, from this statutory mitigating and extenuating circumstances, the court will not sentence medicine Jiaxin to death. Attachment (1), "the Chinese people's *** and state criminal law" article 67 after the crime automatically surrender, truthfully confess their crimes, is the self-surrender. For criminals who surrender, the punishment may be lighter or mitigated. Among them, those who have committed a lesser offense may be exempted from punishment.
Suspects, defendants and criminals serving sentences who have been subjected to coercive measures and who have truthfully confessed to other crimes that the judicial organs have not yet grasped, shall be regarded as having given themselves up.
According to the provisions of Article 67(1) of the Penal Code, a person who surrenders voluntarily to the police after committing a crime, and who has truthfully confessed to his or her own crime is a surrenderee. is a self-surrender.
(1) Automatic surrender refers to the voluntary and direct surrender to the public security organs, the people's procuratorate or the people's court when the facts of the crime or the suspect have not been discovered by the judicial organs, or when the suspect has not yet been questioned or subjected to coercive measures even though he or she has been discovered.
Criminal suspects to their units, urban and rural grass-roots organizations or other relevant responsible persons; criminal suspects due to illness, injury or in order to mitigate the consequences of the crime, entrusted to others to surrender on behalf of the first, or first by letter and telegram; crimes have not yet been discovered by the judicial organs, but only because of the suspicious, by the relevant organizations or judicial organs after questioning, education, and take the initiative to give an account of their own crimes; crime after the escape, in the case of a wanted person, the people's procuratorate or the people's court. After the crime, fleeing, in the process of being wanted, pursued and arrested, the initiative to surrender; verified to have been prepared to surrender, or on the way to surrender, was captured by the public security organs, shall be regarded as automatic surrender.
It is not on the suspect's own initiative, but through the persuasion of friends and relatives, accompanied by the surrender; the public security organs to notify the suspect's friends and relatives, or friends and relatives to take the initiative to report the case, the suspect sent to surrender, shall also be regarded as automatic surrender.
A criminal suspect who has surrendered voluntarily and then escaped cannot be recognized as a self-surrender.
(2) A truthful confession of one's crime means that the suspect, after surrendering voluntarily, gives a truthful account of his or her main criminal facts.
If a suspect who has committed several crimes only truthfully confesses to some of the crimes committed in the several crimes, only the act of truthfully confessing to some of the crimes shall be recognized as a self-surrender.
***same crime in the case of the suspect, in addition to the truthful confession of their own crimes, but also should be confessed to the knowledge of accomplices, the main offender should be confessed to the knowledge of other accomplices in the same crime ****same crime, in order to be recognized as a self-surrender.
A criminal suspect who voluntarily turns himself in and truthfully confesses to his crime and then retracts his confession cannot be recognized as having surrendered; however, if he is able to make a truthful confession before the first trial, he shall be recognized as having surrendered.)
Secondly, the fact that the parents of Yao Jiaxin have the ability to make reparations is also a legal ground for mitigating or minimizing the punishment if they are able to make reparations to the victim's family so that they can be compensated accordingly.
According to media reports, the family is well-off, and his father is a military representative (political commissar) of the Xi'an Military Representative Bureau of the General Logistics Department at the plant. In other words, Yao Jiaxin's parents are capable of compensating the victim's family. Of course, in order to save their own children, the parents of Yao Jiaxin will also pour out all their money to compensate the victim's family and strive to obtain the understanding of the victim's family. If both parties can reach an agreement on civil compensation before the court's judgment, the court will also take these circumstances into consideration and use its discretion to deal with the case in a lighter or mitigated manner. This is not what people often say "spend money to buy a sentence", nor is the judge's extra-legal benevolence, but there is a legal basis. 2000 December 19, the Supreme People's Court on the scope of criminal incidental civil litigation provisions of Article 4: the defendant has been compensated for the material losses of the victim, the people's court may as a sentencing circumstances to be considered. On February 8 this year, the new "Supreme People's Court on the implementation of several opinions on leniency and severity of criminal policy," the twenty-third item: the defendant after the crime to the victim to actively compensate, and plead guilty, repentance, according to the law can be taken into account as a discretionary sentencing circumstances.
Thirdly, Yao Jiaxin's behavior is usually better, he has no previous convictions, and is a first-time and occasional offender. Coupled with his guilty plea and remorseful attitude, the court will take these circumstances into consideration when convicting and sentencing him, and will use discretion to deal with the case in a lighter way.
According to media reports, the reporter met with one of the same professional classmates of the drug Jiaxin, the classmate said, the drug Jiaxin study excellence, "in my eyes, he belongs to the kind of very good, and very introverted students ......," the classmate said; according to the drug Jiaxin's counselor According to Mr. Ji, medicine Jiaxin's counselor, medicine Jiaxin's studies in school is very good, the first academic year to obtain the school's B scholarship of 1,000 yuan. Ji teacher said, medicine Jiaxin in the class **** there are 87 people, can get a scholarship, the results should be at least in the top ten. "Medicine Jiaxin usually outstanding performance, but also very introverted, never with classmates contradictions and verbal conflicts." Regarding the behavior of Yao Jiaxin, Ms. Ji said she felt both pain and regret. Medicine Jiaxin's piano level has reached grade 10, and he takes several piano tutoring jobs outside of school for 60 to 100 yuan per lesson. If the drug Jiaxin's schoolmates, teachers to the court witness testimony, the school can issue a certificate to prove that the drug Jiaxin's usual person and good performance, will also affect the judge to decide the case, the judge in the case will generally consider this discretionary mitigating circumstances; In addition, according to media reports, the drug Jiaxin in the detention center hair overnight all white, which also shows that it is very regretful, to its victims to bring the harm is very painful, this is a very painful. The harm caused to the victim is very painful, which determines its attitude in the whole process of the case. Therefore, he will definitely confess his guilt to the public prosecutor and other relevant authorities and express his deep remorse. In addition to its first offense, occasional offenders, but also in school students, the judge in the conviction and sentencing, generally will also take into account these circumstances, and discretionary lighter sentence
In summary, this case, at least the existence of these can be lighter or mitigating circumstances, so the court's verdict will not be to the netizens expect, medicine Jiaxin will be killed and quick, on the contrary, there is also the possibility of sentencing to life imprisonment, even imprisonment.
Declaration: this lawyer did not accept the commission of the drug Jiaxin and his family, did not have access to the case file, the specifics are not known, but only according to media reports and the provisions of the law, to reach the above conclusion. This conclusion is not necessarily the final conclusion, just the lawyer's own opinion. As for the future direction of the case, we can only wait and see.
Author: Mr. Wan Fangliang Beijing Zhongqi Law Firm