After trial, the court determined the main facts of the dispute between the two sides in the second instance.
1.2006 20 1 1.2 In the afternoon, did Liu Xin discourage Jiangge from calling the police? According to the investigation, around1October 2 1 165438, Chen Shifeng went to the apartment where Jiangge and Liu Xin lived to pester and harass them. Regarding Chen Shifeng's harassment, Liu Xin didn't tell the harasser that it was Chen Shifeng, but Jiangge replied that he "ignored" the news. After Liu Xin WeChat informed Jiangge that Chen Shifeng was a troublemaker, Jiangge called the police, and Liu Xin replied "Don't call the police", "I'm illegal here", "Don't call the police", "I don't want to make a mountain out of a molehill" and "I'm afraid the landlord will know". According to the content of the WeChat exchange between the two parties, it is enough to conclude that Liu Xin prevented Jiangge from preparing to report to the police for reasons such as "not wanting to make a big noise", and the first-instance judgment found the facts correct.
2. Did Liu Xin ask Jiang Ge to accompany him back to the apartment on the evening of 20 1 16 10. After investigation, the content of the communication between Jiangge and Liu Xin WeChat showed that Jiangge sent a message to Liu Xin asking about the situation, and Liu Xin replied at around 1 10 in the evening, "I haven't seen him, please wait for me, I'm quite scared". They met at 0: 05 am on October 3rd, 2006, 2065438+165438+/kloc-0, which proves that Jiangge waited for Liu Xin for more than 50 minutes in the middle of the night after receiving the short message from Liu Xin. For the fact that Liu Xin asked Jiang Ge to accompany him back to the apartment, the first-instance judgment was correct.
Third, whether Liu Xin locked the apartment door when he committed the crime. After investigation, in the recording of Liu Xin calling the Japanese police for the first time, Liu Xin first said in Chinese: "Lock the door and don't scold (make trouble)." When the policeman asked "Is the door locked", Liu Xin replied: "Yes, I came in, but my sister". In the recording of Liu Xin's second alarm call to the Japanese police, the police asked, "Is the door of the house locked?" Liu Xin replied: "I am locked now, yes, it doesn't matter, but my sister is in danger." Later, the policeman said, "Please open the door if you see a policeman", and Liu Xin replied, "OK". Liu Xin also admitted in the defense of the first instance that "after reporting the case, the police told him to lock the door and not to leave the house, and the respondent acted according to the wishes of the police". The first-instance judgment found that Liu Xin locked the apartment door at the time of committing the crime.
Fourth, did Liu Xin know that Jiangge was injured at the time of the crime? After investigation, the recording of Liu Xin calling the Japanese police for the first time shows that Liu Xin shouted: "But my sister is in danger now" and "My sister has fallen, hurry up". In the recording of Liu Xin calling the Japanese police for the second time, Liu Xin said, "The situation is very bad now. Please hurry and call an ambulance." "Sister is in danger." "My sister is making strange noises outside." Liu Xin stated to the Japanese prosecutor on February 7, 20 16 16: "That was a few seconds after I entered my home. Suddenly, there was a scream of "Ah" outside the porch. That voice must be Jiangge's. " Recordings of apartment neighbors calling the Japanese police show that the police said that "there was a woman screaming in the room opposite my house" and "there was a panting voice". The above evidence is enough to prove that there have been serious disputes and conflicts outside the apartment. The first-instance judgment found that Liu Xin was right when he knew Jiangge was hurt.
5. Whether Jiangge lied that Liu Xin was pregnant and asked Chen Shifeng for 65438+ ten thousand yen, and whether the target of Chen Shifeng's premeditated murder was Jiangge. There is no other evidence to prove that Chen Shifeng advocates abortion fees in Japanese criminal proceedings, and there is no evidence to prove that Chen Shifeng's goal is Jiangge. In the second trial, the evidence provided by Liu Xin could not prove the claim, and the court rejected it. The judgment of the first instance found that the object of Chen Shifeng's plot was Liu Xin.
After trial, the court held that there were three main disputes between the two parties in the second instance of this case.
First, whether the court of first instance violated legal procedures.
Liu Xin claimed that the outsider who once had a marriage relationship with Jiang Qiulian was Jiang Ge's stepfather and should take part in the lawsuit. The personal wishes of the parties shall be respected, and the parties shall decide whether to participate in the litigation with the plaintiff as * * *. It is not improper for the court of first instance to add * * to the plaintiff ex officio. On whether the court of first instance should add Chen Shifeng as a co-defendant or a third party. In this case, Chen Shifeng and Liu Xin's torts against Jiangge have neither subjective contact nor negligence, and there is no legal basis for * * * to bear civil tort liability. Therefore, Chen Shifeng does not belong to the party who must participate in the civil litigation in this case. The court of first instance decided not to add Chen Shifeng as * * * to participate in the litigation with the defendant or the third party, which is in line with the law.
Second, whether Liu Xin should be liable for tort damages.
While protecting one's right to life and health according to law, no one may infringe upon the right to life and health of others. Anyone who infringes on the right to life and health of others because of his fault in protecting his own rights and interests shall bear corresponding legal responsibilities. In this case, Jiang Ge suffered personal injury and died in Japan. Jiangge's mother, Jiang Qiulian, has the right to claim damages from the person responsible for Jiangge's death according to law.
Liu Xin and Jiangge are old friends studying in Japan. Liu Xin and Chen Shifeng were followed, pestered and intimidated by Chen Shifeng after their emotional entanglements. When they were in trouble, they turned to Jiangge for help. Jiangge enthusiastically offered help, accepted Liu Xin to live with them and provided them with a safe place to live. When Liu Xin was harassed by Chen Shifeng, he took rescue actions such as companionship, persuasion and protection. According to Liu Xin's help-seeking and Jiang Ge's helping behavior, it can be concluded that a specific civil legal aid relationship based on friendship and trust has been formed between two people studying in a foreign country. Liu Xin has the obligation to pay attention to, rescue and ensure the safety of Jiangge, including the obligation to tell the truth, the obligation to remind in good faith, and the obligation to guard against risks.
Liu Xin, who was deeply troubled by Chen Shifeng's pestering, harassment and intimidation, turned to Jiangge for help and was accepted by Jiangge, and moved into Jiangge's apartment to live together, which created the risk of possible illegal infringement with Jiangge in Chen Shifeng. With Chen Shifeng's behavior becoming more and more aggressive and the danger escalating, especially after Chen Shifeng's intimidation, Liu Xin has realized the urgency of the danger, but failed to tell Jiangge about the situation and danger truthfully, failed to remind Jiangge to pay attention to prevention and prepare for defense in time, and lost the opportunity to take necessary preventive measures to avoid infringing on the danger. Liu Xin is threatened by the reality of Chen Shifeng. If you can take the initiative to report to the police or agree to report to Jiangge instead of stopping it, you can effectively stop the danger of Chen Shifeng's infringement with the help of public relief. In the emergency of Chen Shifeng's unlawful injury with a knife, Liu Xin locked the door, so that Jiangge could not enter his apartment and lost the opportunity to enter it, so as to avoid or reduce the degree of infringement.
Accordingly, Liu Xin, as the importer and rescuer of infringement risk, failed to fulfill his duty of care, rescue and security for Jiang Ge, and was obviously at fault for Jiang Ge's murder. There is a legal causal relationship between his fault behavior and the consequences of Jiangge's death, and Liu Xin should be liable for tort damages.
Three. Whether the amount of compensation determined in the judgment of first instance is appropriate.
In this case, Liu Xin, as a dangerous introducer, committed a wrong act that violated the duty of care, rescue and security, resulting in the damage consequences of Jiangge's right to life being infringed, and he should be liable for personal injury compensation according to law. For all the losses claimed by Jiang Qiulian, such as death compensation, funeral expenses, lost time for funeral treatment, transportation expenses, etc. The court of first instance confirmed that the loss supported by evidence was 1240279 yuan. Jiang Qiulian's claim for compensation is based on the consequences of Jiangge's death, but Liu Xin's behavior is only one of the reasons that led to Jiangge's death. In view of the fact that Liu Xin is an overseas female student facing the same danger of illegal infringement as Jiangge, although she has the obligation to help, her ability to help is limited. The court of first instance comprehensively considered the incident, Liu Xin's fault degree, causality and other factors, and concluded that Liu Xin should bear 496,000 yuan in damages, which was in line with the legal provisions and the actual situation of the case. As the mother of Jiangge, Jiang Qiulian worked hard to bring up Jiangge and sent her to study abroad. She has made a lot of efforts and placed high expectations on her. However, Jiang Ge was suddenly killed abroad, resulting in the death of her middle-aged daughter. She suffered a great mental shock and serious mental injury and should be comforted. After Jiangge was killed in the rescue, Liu Xin failed to properly handle the relationship with Jiangge's mother, Jiang Qiulian, which further aggravated Jiang Qiulian's mental pain and aggravated the consequences of mental damage. The court of first instance comprehensively considered the nature of infringement, factual circumstances, consequences of damage, attitude afterwards and other factors, and determined the amount of compensation for mental damage to be 200,000 yuan, which was in line with the reality of this case.
The court held that the law is safe in the world and noble in people's hearts. The right to life is the highest personal interest of natural persons and the core value jointly maintained by law and morality. Anyone who infringes upon the right to life of others due to fault shall bear tort liability according to law. The court of first instance found that Liu Xin was liable for tort, which was a legal judgment made in accordance with the law, and it was also in line with the tradition of friendship and mutual assistance, and should be upheld according to law. First of all, the judgment of the first instance found that Liu Xin and Jiangge had formed a civil legal relationship of assistance, that Jiangge was the rescued person and Liu Xin was the rescued person and the importer of infringement risk, and that Liu Xin failed to fulfill his duty of attention, assistance and security for Jiangge, which was based on the evidence cross-examined in court. Secondly, in the civil legal relationship of rescue, the rescued person has the necessary obligation to pay attention to, rescue and ensure the safety of the rescuer, which not only conforms to the proper meaning of the basic principles of civil law in China, such as honesty and credit, public order and good customs, but also conforms to the guiding direction of socialist core values, and is also the inherent requirement of the Chinese nation to help others and repay kindness. According to the ascertained facts, the judgment of first instance concluded that Liu Xin was at fault for Jiangge's murder and should be liable for tort damages, and the applicable law was correct. Furthermore, the judgment of the first instance combined the facts and specific circumstances of the whole case, praised and commented Jiang Ge's poverty alleviation behavior, and condemned Liu Xin's treachery, which is an important embodiment of the educational guiding function of judicial judgment and should be affirmed. Finally, it should be emphasized that the murder of Jiang Ge in this case is extremely unfortunate and deplorable, and the disputes caused by it have added more trouble and pain to all parties. I hope the two sides can understand each other, respect each other, strengthen communication, eliminate grievances, let the dead rest in peace and let the living return to normal life.
To sum up, Liu Xin's appeal was not established. The judgment of first instance found the facts clear, the applicable law was correct, and the trial procedure was legal. Qingdao Intermediate People's Court made the above judgment after discussion and decision by the Judicial Committee.