From the focus of the case of intentional injuries on the modest principle of criminal law in the judicial process and the understanding and application of

Xiamen city Jimei District People's Procuratorate Yue Jinfu Shi Jinlian

A, problem

Case:2005Years11Month17On the evening of22PM, the Mou in Xiamen city Jimei District Qiao Ying Jie Dao Hu Jing "Qian Qian" salon because of trifles and hairdressing store attendant Zhang dispute, then, he was a hurried to the store man beaten on the head injury, the forensic identification, Hemou damage seriously.2005Years11Month18Day, hairdressing shop attendant Zhang to the public security organs to identify, wounded victim he is xiaomou, the public security organ for investigation of the case, and in2005Years12Month15On the evening of20When Xu captured xiaomou in Ying Jie Dao Hu Jing Cun, Jimei District overseas, xiaomou to confessed his wounded he mou.2006Years2Month13Day, the public security organ by the investigation after the end, in order to xiaomou alleged transfer review prosecutors to prosecute the crime of intentional injury. Stage of review and prosecution, xiaomou confession, said he was salon shop owner Bao wounded, he was for a package the rap, and provides the witness yang. After investigation, Yang confirmed it on the second day after hearing a package to xiaomou said "one crime", and saw a package to xiaomou500Yuan, a package excuse does not exist the plot and identify what is the injury victim xiaomou, he can not be accurately identified by its head is xiaomou or a package.

In this case, as a confession of guilt xiaomou in the investigation stage, the stage of review and prosecution in innocent confession, two kinds of statement the contents of both the testimony of witnesses to give evidence, but it is not enough to form a chain of evidence, cannot be excluded that the only conclusion, is not enough to prove that the focus of intentional injuries crime fact, nor to exclude the possibility of xiaomou intentional injury crime. But before the xiaomou in the prosecution stage always guilty confession, evidence in this case, how to punish the xiaomou, there are two different opinions in practice. In this paper the author tries to combine the restraining principle of criminal case.

Two, the controversial views

The first view, as a non prosecution decision should focus. The reasons are: first, not to the crime of intentional injury to xiaomou conviction and punishment, the case according to the conviction evidence conflict cannot be reasonably excluded, not that the only conclusion, not enough to confirm that xiaomou illegal deliberately hurt he induced he injured the facts of a crime; secondly, nor to the harbor crime conviction and punishment of xiaomou, I in the "criminal law" article310Provisions to cover up the crime refers to the act of knowing it is a crime and to the harbor, the harbor crime must be established xiaomou to the crime of intentional injury as the premise. China's "criminal law" article12"Without the approval of the people's court shall adjudicate according to law, no person shall be found guilty," but the evidence in this case is not confirmed he is hurt xiaomou, there is not enough evidence to prove a package the crime of intentional injury, therefore also not to cover up the crime conviction and punishment of xiaomou; third, the facts of the case are not clear, the lack of evidence, according to the "criminal law" article140Article4Provisions for supplementary investigation, the case, the people's Procuratorate still believes that the evidence is insufficient, does not meet the prosecution condition, may decide not to initiate a prosecution, the people's procuratorate according to the "rules" in criminal procedure286The provisions of article, according to the conflict is not the conviction of reasonable evidence to exclude evidence, according to the conclusion of other possibilities, which belongs to the lack of evidence, do not meet the conditions of prosecution.

The second view, shall be convicted and punished for the crime of shielding xiaomou. The reasons are: first, the nature of the harbor crime lies in the obstruction of Justice Department criminal prosecution and punishment, as long as the people act on subjective knowing that others are under criminal investigation, prosecution, carried out for the behavior of others, regardless of whether others finally was ruling crime, the behavior is against judicial normal exercise, with serious social harm. Therefore, to cover up the crime refers to the "guilty" includes not only has been found guilty of "criminal", should also include are subject to investigation, prosecution "suspects", "the defendant"; second, based on current evidence, the only two possibilities, he either xiaomou injury or not, if it is the former, xiaomou acts constitute the crime of intentional injury, if it is the latter, xiaomou does not constitute the crime of intentional injury, but the focus in the investigation stage to the investigation organ confessed his wounded he, is essentially a "false testimony" shield under investigation "criminal suspects", which constitutes the crime of shielding, that is to say, xiaomou must be guilty, or the crime of intentional injury, or commit perjury; finally, in affirming the xiaomou guilty and existing evidence and could not confirm which one is the crime situation, according to the criminal law modest restraining principle, can be lighter punishment of crime conviction and punishment of crime of shielding xiaomou.

Combing the above two viewpoints, tracing the differences in its theory source, there are mainly two: one is the constitutive elements of the crime of harboring understanding differences; the two is when there is conflicting evidence, and can't be reasonable to exclude that the only conclusion, in addition to the "presumption of innocence", whether there are other possible. On the first point of disagreement, I think, to cover up the crime is the behavior crime, as long as the intention "to prove" shielding case, investigation, prosecution and trial in the process of "criminal suspects", "the defendant" and "criminals" constitutes the crime of shielding, without requiring the former case suspect is guilty or the judgment of guilty. In this paper the author intends to discusses the second bifurcation points, namely when there are conflicting evidence, and can't be reasonable to exclude that the only conclusion, in addition to the "presumption of innocence", whether there are other possible. In this case, the judicial organ to collect evidence in the investigation of two parts, the first part evidence that xiaomou deliberately hurt he Mou, second partial evidence that xiaomou "rap", while the two part of the evidence can not exclude the possibility of the other, in this case, judicial organs are all the evidence is not admissible or adoption some evidence for the behavior, not prosecuted to the "facts unclear, insufficient evidence on the grounds," or "one crime". China's "criminal law" article140Article4The provisions of paragraph is the legal basis for the procuratorial organs "non prosecution", and "the people's Procuratorate rules" in criminal procedure286For what is a "lack of evidence, not qualified to prosecute" made a further explanation, the article3Paragraph "has one of the following circumstances, determine the suspect's crime and criminal responsibility of the not, belongs to the lack of evidence, do not meet the conditions of prosecution......". Obviously, "non prosecution" is the embodiment of the "presumption of innocence", it is not sure whether the suspect guilty, the available evidence can not prove the criminal suspect's guilt, but also unable to prove his innocence of the circumstances, can only be presumed innocent. But in this case, xiaomou behavior certainly constitute a crime, but the crime of intentional injury (injury) or commit perjury facts are not clear, in this case, a reference to "Criminal Procedure Law" article140Article4Paragraph xiaomou as non prosecution, is obviously the wrong understanding of the term, will lead to a guilty person cannot be punished. The author thinks, according to "criminal law modest principle" in the criminal judicial process, judicial organs should adopt favorable to the defendants evidence, that the misdemeanor, not simply negate. What is "the modest principle of criminal law", in the criminal justice process and how to understand and apply, the author intends to talk about their own point of view, this caused the discussion.

For three, according to the principle in the criminal justice process

The modest principle of criminal law was first proposed by Japanese scholars, but also a product of purpose of criminal punishment doctrine thought and retribution criminal law ideological debate. Modesty, refers to the reduction or compression. Principles of criminal law, refers to "the legislator should strive to minimize the expenditure -- and even less with no penalty (while the other alternative penalty measures), to maximize the social benefits -- effective prevention and control of crime". The modest principle of criminal law is also applicable to the judicial process.

(a) According to the principle in the criminal justice process application form

According to the principle in the criminal justice process embodies the judicial organs should follow the principle of legality, the principle of suiting punishment to crime and the principle of equality of the premise, moderately can reduce that unnecessary crime or inhibition of heavy tendency of unnecessary. "No punishment in doubt case" is the main form of expression, the modesty principle in the criminal justice process the author believes that, in addition to "suspected as innocent modesty principle", there is another form of "suspected crime -- light", namely when the facts question between crime and non crime, found innocent, reflect "no punishment in doubt case"; when there is doubt fact misdemeanor and felony, misdemeanor processing to, when things really have the statutory mitigating or aggravating circumstances when doubt exists between, that mitigating circumstances or not identified aggravating circumstances, is the embodiment of "suspected crimes leniently".

　　1, "suspected crimes leniently" in line with the principles of criminal law and purpose. The principle of criminal law, including statutory responsibility to adapt, equal, fair justice principle, not only protect the legitimate rights and interests of behavior, also requires the prevention, punishment of crime. According to the criminal law according to the principle of "suspected crimes leniently" evidence for ascertaining the facts and to conviction and sentencing, there may be legal facts and judicial cognizance of the crime and the objective facts and the applicable charges do not match, but it does not therefore increase the punishment, and can make the guilty get punishment, the legitimate rights and interests, protection and prevention of human behavior crime punishment balance between.

　　2, "suspected crimes leniently" in the judicial practice is not uncommon. "Suspected crimes leniently" is actually the judiciary doubts arise in evidence, admissibility of evidence of beneficial behavior of the affirmation of the legal fact, the admissibility of evidence rules are not uncommon in the judicial practice, such as theft, behavior person confession amount is lower than the statement of the victim is the amount, the Judiciary Act of confession is admissible, low that amount; and if in the intentional injury (lethal) case, the perpetrator objective illegally behavior of injury and death, the subjective intention is "murder" or "hurt" intentionally, facts unclear, insufficient evidence, low identified human intentional action "harm", to deliberately hurt (lethal) conviction.

　　3, "suspected crimes leniently" existence of judicial remedy. China's "Criminal Procedure Law" provisions, if found in the determination of facts or law is wrong, you can start the procedure for trial supervision. Therefore, when new evidence, that actually violate behavior is a heavier punishment for sin, the judicial organ shall start procedure, trial supervision shall be amended according to the law, and punishment.

It is worth mentioning that, when a case is there evidence of innocence, cannot be excluded, should first apply for "no punishment in doubt case", presumption of innocence, for example according to the existing evidence or the behaviorACrime orBInnocence or guilt, so only the application of the "no punishment in doubtful cases, presumption of innocence," not applicable "suspected crime, cognizance of light"ACrime orBCrime, only in the exclusion to evidence of innocence in case of further application of "suspected crimes leniently," that the misdemeanor.

Two. The restraining criminal law principle in the judicial process and restrictions

　　1Strict conditions, should apply to the modest principle of criminal law. Only when there is enough evidence to lead to reasonable doubt case, to apply the principle, if a suspect is a guess, will not be regarded as a reasonable doubt. The author thinks, the reasonable doubt "should meet two conditions: first, reasonable suspicion is based on evidence, rather than purely subjective speculation; second, the establishment of reasonable doubt is to prove the facts of the crime evidence is not really, well, that is to say, if the facts of a crime evidence is reliable and sufficient, so no reasonable doubt. For example, the available evidence sufficient to form a chain of evidence confirm that the facts of the crime, the offender's innocence or light offence defence, but no other evidence to support, in this case, can not apply the principle.

　　2Found in the subjective state of mind, people's behavior when in doubt, the modest principle of criminal law should be subject to reasonable restrictions. That is when the perpetrators of the criminal law act subjectively knows or has some kind of objective behavior, and the behavior of people excuse for not knowing or not with the objective, leading to the existence question, is not simple "suspected as innocent as" subjective knowingly or not does not have the goal, but should make a reasonable presumption based on objective facts. For example: "criminal law" article312Constitute harboring, transfer, acquisition of the provisions, selling stolen goods must be subjective knowingly harboring, transfer, acquisition or agent to sell is the proceeds of crime booty, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the State Administration for Industry and Commerce on investigating the theft, robbery of motor vehicle law cases article seventeenth is provided with "in the illegal vehicle trading places and unit sales to buy", "motor vehicle certificate procedures incomplete or clearly in violation of the provisions of the" circumstances, can be regarded as a behavior and people should know, unless the act had other evidence to confirm the subjective not knowing.

3, do not distinguish between the felony misdemeanor cases, according to the principle of how to apply criminal law. When in doubt about it between this crime and other crime, and this crime and other crime sentencing and at the same time, obviously can not simply apply the "no punishment in doubt case" or "suspected crimes leniently", in this case, the judicial organs shall be according to the principle of how the application of criminal law. The author believes that, in this case, the judiciary should first consider is the "preponderance of the evidence" principle, namely, to see that which crime evidence more fully, the chain specifications for the formation of higher, will adopt specific accusation which part of the evidence. In the two part of the evidence is in the same level, should adopt the defendant's plea, because the defendant's strength compared with the powerful state organs, is very small, when the criminal cases, public security, procuratorial organs investigation ability, compulsory measures and the executive power is far better than the defense ability, defensive measures and the protection force people, Chinese criminal law also provides, in criminal cases, procuratorial organs as a prosecutor to the crime fact proof, therefore, if the judiciary could not overthrow the behavior person excuse, so be adoption behavior justification.