A basic fact, case

Defendant Zhang Moumou and fan so and so is a fellow, two people together to rent Nanning City Dong Ge Lu housing, fan x is a company in Shenzhen Nanning Branch driver, Zhang Moumou no industry. The afternoon of May 16, 2003, the defendant Zhang Mou with anti-theft door key on the grounds, to borrow a bunch of keys and the fan, and then privately with the car keys. That evening 21 when make, Zhang Moumou to Nanning strong building parking lot, steal with car keys will fan XXX Park Branch in the Shenzhen, Nanning a license plate number for the Guangdong B × southeast Delica car.

Zhang Mou will away a car, carrying his girlfriend to Nanning airport highway to play. Zhang Moumou although has the driver license, but rarely have the opportunity to drive, drive a little experience. Therefore, when the vehicle back to open and to Nanning Jiangnan Lu Ting Hong Kong, due to traffic lights red light to stop, but due to excessive speed, improper Zhang Mou some measures, in emergency braking mistook the throttle control board when the brake, the southeast Delica car driving to the front of the car Dongfeng Citroen car, the car after the collision and crashed to the front of the bus, causing a chain collision accident. After the accident, the traffic police to the scene to make mediation, Zhang Moumou assume full responsibility, Zhang Moumou in mediation agreement signed, the wrecked car was towed to the garage. After identification, in this traffic accident loss of car economy southeast Delica Dongfeng Citroen car 6044 yuan, 19233 yuan of economic losses.

For Guangdong B * * owners can't find the car that was stolen, report to the public security organs. Second days after the accident, Zhang Moumou for fear of and escape, arrested by the local public security organs and public security organs to Nanning escaped to Beihai city. Nanning City police on suspicion of theft arrested Zhang Moumou, after transferred to the procuratorate prosecution to the court.

    Two, about Zhang the conviction and sentencing of differences of opinion

On Zhang Moumou whether the act constitutes a crime, or what constitutes a crime, criminal amount confirmation, there are several different opinions:

The first view, Zhang Moumou constitute larceny.

The second view, Zhang Moumou acts constitute the crime of intentional destruction of property.

The third view, Zhang Moumou behavior does not constitute the crime of theft also does not constitute the crime of intentional destruction of property. Counsel claims that the defending opinions, and innocent plead for the accused.

Three, the court

Zhang Moumou constitute the crime of intentional destruction of property, was sentenced to three years probation for three years. The Court adopted the part of defence counsel.

Four, the defense lawyer experience

First, the author thinks that Zhang Moumou behavior does not constitute the crime of theft. Theft is the illegal possession for the purpose of secret theft, large amount of public or private property or multiple acts of theft of public or private property. The crime of theft requires subjective behavior had deliberately, and has the purpose of illegal possession of private property. In this case a certain behavior, from a subjective point of view, does not have the "for the purpose of illegal possession" direct intent, Zhang Moumou steal the vehicle to play, is a kind of "the purpose of illegal use of". So the first opinion cannot be established.

Second, the author thinks that Zhang Mou some behavior does not constitute the crime of intentional destruction of property.

   According to the "PRC Criminal Law" provisions of article 275th, the deliberate destruction of public or private property crime, refers to intentionally destroy or damage public or private property, the amount is large or if the circumstances are serious behavior. According to China's criminal law crime constitution theory, constitute intentional destruction of public or private property crime, must meet the following conditions:

   1 the perpetrators have deliberately destroyed a large amount of public or private property or other serious circumstances of the act. By way of the main destruction and damage. If the use of fire, explosion and other dangerous method destroys public or private property, but enough to endanger public safety, should be to arson, explosion and other crimes of endangering public safety crime. At the same time, intentional destruction of public or private property must be larger or other serious circumstances degree. If the circumstances are minor or smaller amounts, does not constitute a crime. "Other serious circumstances" generally refers to the following situations: destruction of important goods or articles; cause serious consequences; motivation and means of particularly bad etc..

   The object of this crime is the 2 public and private property ownership, infringed object is public or private property. But the damage of certain public or private property, not to destroy state private property crime, for example, the deliberate destruction of the use of transportation equipment, transportation, electricity and gas, inflammable or explosive equipment, harm the public safety, related to the crime of endangering public safety crime of intentional destruction of equipment; production and operation of farm animals, to destroy to punish crime, destruction of production and operation.

3 from the subjective aspect of the crime, the crime of intentional destruction of public or private property must be intentional, including direct intention and indirect intention, and at the same time, the criminal purpose is the destruction of public and private property, does not have the purpose of illegal possession, which is the essential difference between this crime and other crimes of property violation. Negligent destruction of public or private property, does not constitute a crime. In this case, Zhang Moumou steal open vehicle to take his girlfriend to play, its purpose is the illegal use, subjective intention without destruction of public or private property, after use to put the car back, in fact he is on the road to drive back to the traffic accident. Therefore, from the crime constitution theory, Zhang Moumou intentionally stealing intentionally not destroyed, Zhang Moumou conduct did not constitute the crime of intentional destruction of public or private property.

However, interpretation of the Supreme People's court "about a number of issues of specific application of law in the trial of theft cases" (hereinafter referred to as the "interpretation" of article twelfth) (four) provision "to practice driving, recreation and other purposes, multiple drives a motor vehicle, and the motor vehicle lost, convicted and punished as theft; stealing. The traffic accident happened in the process of motor vehicle crime, constitutes another crime, should be based on the traffic accident crime and other crimes and combined punishment for several crimes; steal a motor vehicle caused damage to the vehicle in accordance with the provisions of article 275th of the criminal law, conviction and punishment; occasionally drives a motor vehicle, if the circumstances are minor, can not be considered a crime". The judicial interpretation of the Supreme People's court, the consequences of reasoning behavior motivation, i.e. if the stolen motor vehicle caused by motor vehicles is lost, theft; stealing the vehicle if caused by motor vehicles damaged, is the intentional destruction of property; if the thief open vehicle is not lost, do not damage, if the circumstances are minor, also does not constitute a crime. This point of view, does not take into account the subjective aspect of crime, cause many difficulties in terms of the application in judicial practice.

In 2003 the people's Procuratorate of Haidian District Beijing city hosted such cases: Wang Mou of the accused person to practice for the purpose of stealing the car, motor vehicle and others, in vehicle gasoline exhausted when the vehicle away, but also use the same method of stealing a dozen vehicles. Of Wang's behavior constitutes the crime of theft, the dispute occurred in how to understand the "missing" issue. But "lost" in the judicial interpretation and no clear definition. Motor vehicle theft after Wang discarded soon found the owner or the public security organ, can be "lost"? It is difficult to agree, the law and no provisions. Beijing City People's Procuratorate of Haidian District from the Beijing people's Procuratorate, the case to the public security organ for other processing security cases, no criminal prosecution.

Similarly, in this case, Zhang Moumou stealing the vehicle due to traffic accidents caused by the "damage", "damage" in the judicial interpretation is also not clear is intentionally "damage" or "damage fault". If the stolen after the robbery cause "damage", should be the crime of intentional destruction of property punishment according to the provisions of article 275th of the criminal law? We know, caused by a traffic accident "damage" is the damage caused by negligence, and article 275th of the criminal law of the crime is the "intention" to. Intent and negligence is the two opposite psychological state. So, the author thinks that Zhang Mou some behavior does not constitute the crime of intentional destruction of property, the court's decision is worth discussing.

Third, if the recognition Zhang Moumou behavior of the crime of intentional destruction of property, so the "damage" and how to calculate the amount of property?

The 275th article of Chinese criminal law the crime of intentional destruction of property, requires a large amount or other serious circumstances can constitute. Therefore, limit problem of crime and light crime, even crime and non crime of amount of the identification of will. In this case, because of a traffic accident, Zhang Moumou not only the motor vehicle theft own crashed, the others vehicles damaged, if single computing stolen vehicle damage, Zhang Moumou crime light, if the stolen vehicle loss and damaged others vehicle loss the calculation for the "loss of damaged vehicles", Zhang Moumou will because the amount reached great and was sentenced to three years, to seven years in prison. So how to understand the "vehicle" the scope and how to calculate the amount of key.

Therefore, I propose in the defense, judicial interpretation "steal a motor vehicle caused damage to the vehicle" in the "vehicle" should be limited to the defendant in stealing the "vehicle", should not include other vehicle crashed. Because:

(1), causing other damage to the vehicle is accused of stealing when unforeseen;

(2), in this case, due to damage caused by traffic accidents caused by the fault of the other vehicle is not deliberately caused, if the losses included in this case amount and runs counter to the requirements of the case;

(3) suppose Zhang Moumou hit is not the vehicle but other possessions, the loss can be included?

(4), was hit casualties loss can be included in the vehicle damage? Obviously not. It is worth mentioning that, in the case of public prosecution in the prosecution of the impacted vehicle losses included in the amount of conviction and sentencing, the Court adopted the views of counsel, no other vehicle losses.