The author: the applicability of law and statute, sometimes quite interesting discussion: the alleged crime of causing traffic casualties occurred in 1997 June, in 2011 was the beginning of a criminal case. Lai Shengqi lawyers said the case should be applied in 1979 Criminal Law, and in accordance with the criminal law in 1979 and sentenced to up to three years; and for many years without registration, but may exceed the limitation of prosecution.

Defense

Honorable judges:

   Guangdong Hua Ruixing law firm accepted this case the defendant Gong Moumou entrust a legally, appointed lawyer Lai Shengqi (phone 13808849848) as Gong Moumou suspected of crime of causing traffic casualties a counsel. After accepting the entrustment, the defenders to examine the case materials, met with the defendant, attended today's court. The defender on the basis of law and fact, that the case has exceeded the limitation of prosecution, shall be ordered to terminate the trial.

    One, the defendant Gong XXX should provide about traffic accident crime in 1979 Criminal Law Applicable

According to the case file materials display, the defendant Gong X in June 23, 1997 traffic accident victims, to Party A the fact of death, the identification of negative full liability for the traffic accident, his behavior constituted the crime of causing traffic casualties. However, the key question is, the defendant Gong Moumou crime is happening in June 23, 1997, but at present our country Department of criminal law came into effect on October 1, 1997, which relates to the criminal law of our country the retroactivity. After reading the relevant materials in the case and the relevant legal provisions, the lawyer thinks, the accused Gong XXX should apply for 79 year our country criminal law, for the following reasons:

First, according to the 1979 "criminal law" stipulates that the 113rd "engaged in transportation of personnel who violate the rules and regulations, thus the occurrence of major accidents, causing serious injury, death or causes heavy losses to public or private property, is less than three years imprisonment or criminal detention; if the circumstances are especially serious, department for more than three years to seven years in prison. Non transport personnel commits the crime shall be punished in accordance with the provisions of the preceding paragraph." And the "notice" the Supreme People's court, the Supreme People's Procuratorate < on strictly in accordance with the law to deal with road traffic accident cases (1987.8.12 method (Research) (1987) and No. ZI)"The provisions of the first paragraph, the defendant committed the crime of causing traffic casualties Gong Mou, assuming it is after the traffic accident escaping behavior, according to the 1979 Criminal Law on the crime of causing traffic casualties and sentencing standards, the maximum statutory penalty shall be three years.

Provisions on the crime of causing traffic casualties second, China's current criminal law "in violation of the traffic regulations, so the occurrence of major accidents, causing serious injury, death or causes heavy losses to public or private property, is less than three years imprisonment or criminal detention; traffic accident escape or other special circumstances of the poor, at more than three years to seven years in prison; the death caused by escaping, department for more than seven years in prison. Drive a motorized vehicle on the road racing, if the case is serious, or in the way of drunken driving motor, detention, and shall also be fined. There are the acts mentioned in the preceding paragraph, which also constitutes another crime, in accordance with the provisions of punishment heavier punishment." Therefore, also assumed that the defendant has Gong Mou after the traffic accident escaping behavior, according to the current criminal law, the maximum statutory penalty shall be seven years.

To sum up, according to the principle of "criminal law" the retroactivity of the old and light in China, under the assumption that the defendant and the old and the new law are of the view that in Gong is a crime under the premise, should apply to the lighter punishment of criminal law, the criminal law of 1979.

Two, the Gong so shall apply the provisions of article eighty-seven of criminal law, the crime has exceeded the limitation of criminal law, should be immediately ordered to terminate the trial

First, according to the79Years of criminal sentencing range that the traffic accident crime, the highest statutory sentence the defendant Gong Chao was in prison, three years hence, according to our country criminal law eighty-seven stipulation, its behavior after5Years later, would no longer be prosecuted.The lawyers in the case. All the materials after the Panyu District Public Security Bureau, found only in July 10, 2011 on the defendant committed the crime of causing traffic casualties Gong and a case on file, before and not related to criminal material. The Gong so committed crime of traffic accident one case occurred on June 23, 1997, from case to case decision issued by the public security organ book has already had 14 years, it has far exceeded the limitation period prescribed in the criminal law, the law is based on the limitation period for prosecution is to improve judicial efficiency, save judicial resources, timely and effective fight against crime, realize the criminal law of general prevention and special prevention, safeguard judicial authority value, so the lawyer should immediately ordered to terminate the trial.

Second, the lawyer thinks, the accused Gong does not constitute "escapes from investigation or trial", therefore, the provisions of article eighty-seven of the criminal law should be. Because:

First of all, the defendant Gong x behavior not to judicial organs for criminal prosecution of hindered.The defendant Gong XXX in the traffic accident, not destroy the scene of destruction of evidence, but left the vehicle belongs to the victim of its own, the public security organ can through the vehicle registration information to find the defendant; two no hidden identity and hide, the defendant Gong so back to still engaged in transportation work home, with transportation limited the real driver's license, identity card, which has the subjective attitude and no hidden hide.

Secondly, "escape" After the behavior should occur during the investigation organ for investigation or the people's court has accepted the case, this is the time condition determined whether the perpetrator is "escapes from investigation or trial".Gong X after the occurrence of a traffic accident, the public security organ is no investigation, no summoned the defendant Gong so and so, therefore, from the time conditions, the defendant does not have the possibility of Gong escapes from investigation or trial, because of its subjective simply do not know what it has been prosecuted, talk about how to escape?

Finally, deliberately is for "escapes from investigation or trial", namely, knowing that their actions would hinder judicial recourse to the facts of the crime, but wishes or allows such results occurred.The defendant in a traffic accident, leaving the vehicle, but the vehicle has also purchased the third party liability compulsory insurance, therefore, the defendant has been thought that the vehicle sale value and insurance indemnity amount enough to make up for the loss of the victim, and it did not know the victim has been the fact of death. And the most important is, the defendant Gong Chao didn't know it was a criminal prosecution, do not have the relevant criminal police investigation, therefore, the subjective may not have "deliberately evade investigation or trial".

Third, the case is not the victims filed charges in the limitation period for prosecution, the people's court, the people's Procuratorate, the public security organ shall file the case and not to file a case, therefore, the case shall not extend the applicable statute of limitations.

According to the materials, "at large personnel registration information table", "Ma Moumou families in the prosecution period repeatedly sued, and in April 24, 2012 of Gong and criminal detention procedures", which is inconsistent with the facts, because from the material, we only see a letter a victim families belonging to the 2002 15 December, the people's court wrote, except there is no the materials reflected in the. We assume that the victim's belonging to the people's court in 2002 December 15 to sue, but at this time, the case has been the limitation of prosecution, because, according to the above about the limitation period for prosecution of the case discussed above, the limitation of prosecution of this case in June 22, 2002 has expired, therefore, the families of the victims filed a complaint has been beyond the limitation of prosecution, based on it, the provisions prolonged not applicable statute.

To sum up, to initiate public prosecution and trial of the case, has exceeded the limitation period for prosecution, and this case does not have the limitation of extension of the conditions, therefore, should apply the provisions of article eighty-seventh of the criminal law, not the prosecution. And from the legislative purpose, there is no need to pursue the criminal responsibility of the accused Gong X. From the law perspective, China's criminal law and criminal procedure law first first make clear "the purpose of legislation punishing crimes, protecting the people". Visible, in the criminal law of our country, to protect the people is the ultimate goal. And the defendant in the case of Gong XX, not during the limitation of law evasion of investigation, also did not commit any other offence. At the same time, we should think the defendant has "shun evil and learn to do good", no longer have social harmfulness. From the point of view of protecting the people speaking, it is not necessary to take measures to prevent the possibility of punishment to crime. This is one of the criminal law significance set limitation clause. Therefore, the lawyer advised the court immediately ordered to terminate the trial.

Three, about the prosecution organ thought Gong does not apply to the criminal law eighty-seven stipulation that, namely that the prosecution of the defendant should apply Gong and article eighty-eight of the criminal law, the crime is not affected by the statute limit argument.

First of all, our country in order to correct application of criminal law, the people's court has been hearing in October 1, 1997 after the criminal case, specific issues related to the revision of criminal law or in front of the revised criminal law in detail. According to the"Provisions of the Supreme People's Court on the application of time validity of criminal law provisions of interpretation of several issues" the first rule of "the actor1997Years9Month30The day before the implementation of criminal acts, the people's Procuratorate, the public security organ, the state security organs for investigation or the people's court has accepted the case, behavior person escapes from investigation or trial, over the period for prosecution or the victim in the filed charges within the period for prosecution, the people's court, the people's Procuratorate, the public security organ shall file the case and not on file, over the period for prosecution whether the behavior person, shall be investigated for criminal responsibility, criminal law amendment regulations seventy-seventh before."Therefore, even if that the prosecution of two cases the defendant above certain specified Gong has led to more than the period for prosecution, the defendant Gong Moumou also should apply the criminal law seventy-seventh stipulation of 79 years.

Secondly, China's 79 years of "criminal law" the seventy-seventh stipulation: in the people's court, the people's Procuratorate, the public security organs to take coercive measures, escapes from investigation or trial, no limitation on the period for prosecution. Therefore, according to the provisions of the penal code of 79 years, the defendant Gong so and so only after being mandatory measures taken by public security organs, escapes from investigation or trial case, no limitation on the period for prosecution, otherwise, should stipulate the period for prosecution on criminal law.

On the other, according to the materials "at large personnel registration information table" shows, public security machine on April 24, 2012 for the detention of criminal procedures, it can be known, in June 23, 1997 after a traffic accident in April 23, 2012, the public security organ has not taken any of Gong and the criminal compulsory measures, therefore, according to the provisions of the criminal law article seventy-seven "79 years" since the defendant, Gong and was not taking any criminal compulsory measures, has not received any criminal litigation documents, it does not know their behavior has constituted the crime of causing traffic casualties. For the case of limitation of prosecution should be stipulated not applicable, should be directly applicable provisions of article eighty-seven of the criminal law, finds that the case has exceeded the limitation period for prosecution, not the prosecution.

 

 

 

 

In conclusion, this case has exceeded the limitation period, shall be ordered to terminate the trial. For the families of the victims, the defendant out of humanitarian agreed to negotiate compensation. Counsel pleaded the court to really practice the spirit of ruling by law, ruling the case trial termination.

                                               Defenders: Lai Shengqi lawyer

                                               2013 Month Day

 

 

The law relating to:

1, the current "criminal law" article twelve: after the founding of the PRC and before the implementation of this law, if the law is not considered a crime, applicable law at that time; if the laws at the time considered a crime, in accordance with the provisions of the general provisions of this Law shall be prosecuted fourth section of the eighth chapter, according to the investigation the criminal liability, but if this method is not considered a crime or imposes a lighter punishment, this Law shall apply.

Before the implementation of this law, in accordance with the law has made the effective judgment, continue to be effective.

2, the current "criminal law" article eighty-seventh the following period would no longer be prosecuted for criminal:

(a) maximum statutory penalty dissatisfied with five years in prison, after five years;

(two) the statutory maximum sentence of five years and less than ten years in prison, after ten years;

(three) maximum statutory penalty for more than ten years, after fifteen years;

(four) the maximum prescribed punishment is life imprisonment or death, after twenty years. If that must be prosecuted after twenty years, the matter shall be submitted to the approval of the Supreme People's procuratorate.

3, the current "criminal law" in the eighty-eighth people's Procuratorate, the public security organ, the state security organs for investigation or the people's court has accepted the case, escapes from investigation or trial, no limitation on the period for prosecution.

After the victim brings a charge within the period for prosecution, the people's court, the people's Procuratorate, the public security organ shall file the case and will not put on record, no limitation on the period for prosecution.

4, the current "criminal law" article 133rd violation of the traffic regulations, so the occurrence of major accidents, causing serious injury, death or causes heavy losses to public or private property, is less than three years imprisonment or criminal detention; traffic accident or other special circumstances of the poor, three years or seven years in prison; the death caused by escaping, department for more than seven years in prison.

Drive a motorized vehicle on the road racing, if the case is serious, or in the way of drunken driving motor, detention, and shall also be fined.

There are the acts mentioned in the preceding paragraph, which also constitutes another crime, in accordance with the provisions of punishment heavier punishment.

5, "the Supreme People's Court on the application of time validity of criminal law interpretation of several issues" provisions of Article 1 For the crimes act September 30, 1997 before implementation, the people's Procuratorate, public security organs, state security organs for investigation or the people's court has accepted the case, behavior person escapes from investigation or trial, over the period for prosecution or the victim in the filed charges within the period for prosecution, the people's court, the people's Procuratorate, the public security organ shall file the case and not on file, more than the period for prosecution shall be investigated for criminal responsibility, if the person's behavior, the provisions applicable criminal law revised seventy-seventh in front of the bar.

6, 79 years of "criminal law" article seventy-sixth the following period would no longer be prosecuted for criminal:

(a) maximum statutory penalty dissatisfied with five years in prison, after five years;

(two) the statutory maximum sentence of five years and less than ten years in prison, after ten years;

(three) maximum statutory penalty for more than ten years, after fifteen years;

(four) the maximum prescribed punishment is life imprisonment or death, after twenty years. If that must be prosecuted after twenty years, the matter shall be submitted to the approval of the Supreme People's procuratorate.

7, 79 years of "criminal law" article seventy-seventhIn the people's court, the people's Procuratorate, the public security organs to take coercive measures, escapes from investigation or trial, no limitation on the period for prosecution.

8, 79 years of "criminal law" article 113rd

Engaged in transportation of personnel who violate the rules and regulations, thus the occurrence of major accidents, causing serious injury, death or causes heavy losses to public or private property, is less than three years imprisonment or criminal detention; if the circumstances are especially serious, department for more than three years to seven years in prison. 　　

Non transport personnel commits the crime shall be punished in accordance with the provisions of the preceding paragraph.