synonymInaction(Legal term) generally refers to inaction
This term is provided by the "Rule of Law Encyclopedia" project leading group office of China Law Society.
As opposed to the act, omission refers to the act that the actor has a specific legal obligation to implement a certain positive act and is able to do it but not to do it.As a special way of behavior, omission has a contrary relationship with action.
As opposed to the act, omission refers to the act that the actor has a specific legal obligation to implement a certain positive act and is able to do it but not to do it.As a special way of behavior, omission has a contrary relationship with action.
Legal provisions
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（1） Article 129 of the Criminal Law The crime of failing to report the loss of a gun.In fact, the behavior is not to report in time after the gun is lost.There are two cases of not reporting in time: one is that there is no report at all, and the gun is found by others and they learn that the gun is lost, which is an omission and is not controversial;Second, there was no report within the statutory time limit, but the report was made after the statutory time limit, which is also a kind of delayed report.However, whether this kind of untimely report belongs to omission is controversial in criminal law theory.We believe that failure to report within the statutory time limit is failure to fulfill the statutory reporting obligation, which still belongs to inaction.As for the report after the statutory deadline, we cannot deny the fact that there was no report within the statutory deadline.Therefore, the crime of failing to report the loss of firearms is a pure omission crime.
（2） Article 138 of the Criminal Law is the crime of major safety accidents in educational facilities.His behavior is "not taking measures or reporting in time when he knows that the school buildings or educational and teaching facilities are dangerous".Failure to take measures or report in time here is inaction.Therefore, the crime of major safety accidents in educational facilities belongs to pure omission.
（3） Article 139 of the Criminal Law is the crime of fire control liability accident.His behavior is "in violation of fire control management regulations, he refused to implement after being notified by the fire supervision agency to take corrective measures".The "refusal to execute" here is a kind of omission, so this crime is a pure omission.
（4） Crime of failing to report or falsely reporting safety accidents, Article 139-1 of the Criminal Law.Its behavior is "after the occurrence of a safety accident, the person responsible for reporting fails to report or falsely reports the accident".The "failure to report" here is a kind of omission, so this crime is a pure omission crime.
（5） Article 261 Crime of abandonment.His behavior is "refusing to support because he has the obligation to support".Refusing to support here means not performing the obligation of support, so this crime is a pure omission.
（6） The crime of refusing to provide evidence of espionage in Article 311 of the Criminal Law.His behavior is "refusing to provide information when the national security organ investigates relevant information and collects relevant evidence from others, knowing that others have committed espionage crimes".The refusal to provide is a refusal to fulfill the obligation to provide information about the espionage crime, so this crime is a pure omission.
（7） Article 313 Crime of refusing to execute a judgment or order.Its behavior is "refusing to execute the judgments and rulings of the people's courts while having the ability to execute them".Although the perpetrator can take such positive measures as besieging, beating and looting the object of execution to achieve the purpose of refusing to execute the judgment and order, the perpetrator of this crime is refusing to execute.The criminal law does not restrict the means of refusing to execute, so this crime is a pure omission crime.
（8） Article 402 of the Criminal Law The crime of favoritism and malpractice not transferring criminal cases.Its behavior is "not to transfer those who should be transferred to judicial organs according to law for investigation of criminal responsibility".The non surrender here is a refusal to perform the obligation of surrender, so this crime is a pure omission.
（9） Article 404 of the Criminal Law The crime of refusing to collect or underpaying tax due to malpractices for personal gain.Its behavior is "no or less tax payable".In this case, non collection or less collection refers to failure to fulfill the obligation of collecting taxes, so this crime is a pure omission crime.
（10） The first paragraph of Article 416 of the Criminal Law commits the crime of not rescuing women and children who are abducted and trafficked in or kidnapped.His behavior is "not to rescue the abducted, trafficked and kidnapped women and children after receiving the request for rescue from them and their families or receiving the report from others".Not to rescue here means not to perform the obligation of rescue, so this crime is a pure omission.
（11） Article 429 of the Criminal Law is the crime of refusing to rescue the friendly and neighboring forces.His behavior is to refuse to rescue the critically ill soldiers when conditions permit.The refusal to rescue here is the refusal to perform the obligation of rescue, so this crime is a pure omission.
Legal composition
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Have certain obligations
It is the logical premise of omission to have a certain obligation to act.The act obligation of omission crime is a specific legal obligation.This specificity of the obligation is based on certain conditions and changes with the change of the conditions.In this sense, the act obligation of omission is a special obligation.Special obligations are relative to general obligations, which are also called absolute obligations and unconditional obligations.As long as they have the capacity for responsibility, the obligations that all people should abide by are general obligations, while special obligations are obligations that specific people should perform with certain conditions.Therefore, when identifying the act obligation of omission, it should be examined in connection with certain conditions.If these conditions are met, there are special obligations.If these conditions are not met, there is no special obligation.If these conditions had existed previously and have now been eliminated, then there would have been special obligations previously and no special obligations now.
The act obligation of omission can be divided into various types. Therefore, there is a classification problem of the act obligation of omission, which can also be called the source problem.Because there are differences in understanding the nature of the act obligation of omission, the determination of the source of the act obligation in criminal law theory is also different.We believe that the source of the obligation of omission should be determined according to certain social realities.Generally speaking, in a society with close social ties and complex social relations, the obligations will be more extensive, and vice versa.As far as China is concerned, the obligation of omission can be divided into the following four situations:
1. Act obligations expressly stipulated by law
The act obligation expressly stipulated in the law is the main source of the act obligation of omission, which is also an inevitable requirement of the principle of legality.In the pure omission, the act obligation is explicitly stipulated by the law.The legal provisions here refer to the provisions of other laws that are recognized by the criminal law. If there are only other legal provisions that are not recognized by the criminal law, they cannot become the obligation of omission.
2. Duty required by position or business.The act obligation required by a post or business refers to a certain act obligation that a certain subject requires to perform according to law because of holding a post or engaging in a certain occupation.In the impure omission, the obligation to act is usually the obligation required by the position or business.They are generally stipulated in the relevant rules and regulations, which have legal effect and can therefore become the source of obligations of omission.
3. Act obligations arising from legal acts.Legal act refers to the act that can establish certain rights and obligations in law.In social life, people's legal acts are various.In a broad sense, not only the behavior performed by the actor in accordance with the relevant laws, but also any obligation voluntarily undertaken to perform a certain behavior or prevent the occurrence of damage results will result in a certain legal obligation, which is also a legal act.
4. Act obligations arising from antecedent acts.Because the behavior previously performed by the actor, that is, the antecedent behavior, puts some legitimate rights and interests in a dangerous state of serious damage, the actor has the obligation to take positive action to prevent the damage from occurring, which is the act obligation caused by the antecedent behavior.Because the act obligation caused by the antecedent act is different from other circumstances, when determining the omission caused by it, we should pay full attention to the correlation between the antecedent act and the resulting harmful consequences.As for the nature of the antecedent act, I do not ask.
In China's criminal law theory, the views on the above four sources of act obligation basically belong to the formal act obligation theory.In the theory of criminal law, there is a transformation process from the formal obligation theory to the substantive obligation theory.The original form of the act obligation theory is to avoid the lack of boundaries of the act obligation of the impure omission crime, which will inappropriately expand the scope of the act obligation. Therefore, the formal act obligation theory is proposed from the perspective of norms to limit it.Therefore, the law, contract and antecedent act are identified as the source of the act obligation of omission in a way of enumeration. As long as one of the above sources of the act obligation exists, it is considered as the act obligation of omission, which is a typical form of judgment.There are obvious defects in the theory of formal act obligation, that is, it is impossible to scientifically reveal the substantive basis of punishing omission crime, so it is difficult to distinguish between pure omission crime and impure omission crime.In the case that the criminal law does not stipulate as pure omission crime, it is easy to punish the acts that should be punished as pure omission crime as impure omission crime, thus improperly expanding the scope of impure omission crime.Therefore, we believe that we should advocate the substantive act obligation theory.It should be pointed out that it is a change of research methods from the formal theory of obligation to the substantive theory of obligation.However, the substantive act obligation theory is not the negation of the formal act obligation theory. Rather, there is a logical hierarchy between the two. The formal act obligation theory is the formal judgment of the act obligation, and the substantive act obligation theory is the substantive judgment of the act obligation.Only on the basis of formal judgment and confirmation of the existence of formal act obligation can we further make substantive judgment on act obligation.The formal act obligation is the ontological act obligation, while the substantive act obligation is the axiological act obligation.
In the identification of the substantive act obligation, we believe that the following three points should be emphasized:
First, the subject has the status of guarantor.Whether the subject has the status of guarantor is one of the important bases when making substantive judgments on the act obligation of omission crime.The guarantor theory was initiated by Johannes Nagler (1876-1951), a German scholar.Nagler believes that the so-called guarantor (Garant) refers to the person who has a special obligation to prevent the occurrence of a certain crime in a dangerous state. Although the guarantor can fulfill his guarantee obligation, he can become an act based on omission when he is negligent and does not act.Therefore, the act obligation in the crime of false omission must be understood as an element of the constitutive requirements.The guarantor status of the omission criminal makes him bear the substantive obligation to prevent the consequences. If he fails to perform this obligation, he should bear criminal responsibility for the consequences of legal interest infringement.Therefore, whether the subject has the status of guarantor has become a judgment standard of substantive obligation.
Second, the nature of equal value of behavior.The value of behavior here refers to the equivalence between action and impure omission.Because act and impure omission share one constitutive element, the criminal law does not make special provisions on impure omission.In this case, only the impure omission that is equivalent to the act can be recognized as a crime.For example, the criminal law only stipulates homicide. If it is an act of homicide, it can certainly be governed by the provisions of the criminal law on homicide.In the case of impure omission homicide, the equal value of homicide and omission homicide should be investigated.The theory of equal value provides a direction for us to judge the essence of the act obligation, which is of great significance for us to identify the impure omission.
Third, cause setting and result control.When identifying the impure omission crime, it can be said that whether there is cause setting and result control in the substantive judgment of the act obligation is an important basis.
The reason setting refers to that before the omission is established, the person who does not act must set the causal relationship that tends to infringe the legal interests. It is a judgment standard of equal value with substantive significance.This view was put forward by Japanese scholar Professor Yoshibo Nikao, also known as the "substantive causal hypothesis theory".Cause setting is closely related to the equal value judgment of action and omission, but it can also become an independent judgment basis.The view of cause setting is similar to the view of risk creation, which provides a substantive basis for the existence of obligation.
Result domination refers to domination over the occurrence of results.In 1971, German scholar Xu Naiman put forward the principle of reciprocity that "the cause of the result is dominant" in his article "The Basis and Limits of the Offence of Innocent Omission": only when the legal status of the omission person against the fact of legal interest infringement can be compared with the legal status of the actor,Then it is appropriate to punish omission with the constitutive elements of the act crime.Japanese scholars further emphasized that this domination of results is an exclusive domination.For example, Professor Nishida, a Japanese scholar, pointed out that if omission and act have the value of constituent elements, the doer must control the ongoing causal process in his own hands, that is, obtain exclusive domination based on meaning.Obviously, this view of result domination has guiding significance for identifying the act obligation of impure omission crime.
Type of inaction
As for the types of omission, the general theory of criminal law is divided into pure omission and impure omission.
1. Pure omission
Pure omission refers to a crime that can only be constituted by omission according to the Criminal Law.The pure omission crime is clearly stipulated in the criminal law, so the pure omission crime can be correctly identified.For example, Article 261 of the Criminal Law stipulates: "Whoever refuses to support an old, young, sick or other person who is unable to live independently and has the obligation to do so, if the circumstances are flagrant, shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or public surveillance." This is a legislative practice for pure omission crimes.Abandonment crime is a pure crime of omission, which is constituted by the person who has the obligation to support is able to perform the obligation of support but refuses to perform the obligation of support.The pure omission crime stipulated in our criminal law mainly includes the following situations:
(1) Article 129 of the Criminal Law The crime of failing to report the loss of a gun.In fact, the behavior is not to report in time after the gun is lost.There are two cases of not reporting in time: one is that there is no report at all, and the gun is found by others and they learn that the gun is lost, which is an omission and is not controversial;Second, there was no report within the statutory time limit, but the report was made after the statutory time limit, which is also a kind of delayed report.However, whether this kind of untimely report belongs to omission is controversial in criminal law theory.We believe that failure to report within the statutory time limit is failure to fulfill the statutory reporting obligation, which still belongs to inaction.As for the report after the statutory deadline, we cannot deny the fact that there was no report within the statutory deadline.Therefore, the crime of failing to report the loss of firearms is a pure omission crime.
(2) Article 138 of the Criminal Law is the crime of major safety accidents in educational facilities.His behavior is "not taking measures or reporting in time when he knows that the school buildings or educational and teaching facilities are dangerous".Failure to take measures or report in time here is inaction.Therefore, the crime of major safety accidents in educational facilities belongs to pure omission.
(3) Article 139 of the Criminal Law is the crime of fire control liability accident.His behavior is "in violation of fire control management regulations, he refused to implement after being notified by the fire supervision agency to take corrective measures".The "refusal to execute" here is a kind of omission, so this crime is a pure omission.
(4) Crime of failing to report or falsely reporting safety accidents, Article 139-1 of the Criminal Law.Its behavior is "after the occurrence of a safety accident, the person responsible for reporting fails to report or falsely reports the accident".The "failure to report" here is a kind of omission, so this crime is a pure omission crime.
(5) Article 261 Crime of abandonment.His behavior is "refusing to support because he has the obligation to support".Refusing to support here means not performing the obligation of support, so this crime is a pure omission.
(6) The crime of refusing to provide evidence of espionage in Article 311 of the Criminal Law.His behavior is "refusing to provide information when the national security organ investigates relevant information and collects relevant evidence from others, knowing that others have committed espionage crimes".The refusal to provide is a refusal to fulfill the obligation to provide information about the espionage crime, so this crime is a pure omission.
(7) Article 313 Crime of refusing to execute a judgment or order.Its behavior is "refusing to execute the judgments and rulings of the people's courts while having the ability to execute them".Although the perpetrator can take such positive measures as besieging, beating and looting the object of execution to achieve the purpose of refusing to execute the judgment and order, the perpetrator of this crime is refusing to execute.The criminal law does not restrict the means of refusing to execute, so this crime is a pure omission crime.
(8) Article 402 of the Criminal Law The crime of not transferring criminal cases for favoritism and irregularities.Its behavior is "not to transfer those who should be transferred to judicial organs according to law for investigation of criminal responsibility".The non surrender here is a refusal to perform the obligation of surrender, so this crime is a pure omission.
(9) Article 404 of the Criminal Law The crime of refusing to collect or underpaying tax due to malpractices for personal gain.Its behavior is "no or less tax payable".In this case, non collection or less collection refers to failure to fulfill the obligation of collecting taxes, so this crime is a pure omission crime.
(10) The first paragraph of Article 416 of the Criminal Law commits the crime of not rescuing women and children who are abducted and trafficked in or kidnapped.His behavior is "not to rescue the abducted, trafficked and kidnapped women and children after receiving the request for rescue from them and their families or receiving the report from others".Not to rescue here means not to perform the obligation of rescue, so this crime is a pure omission.
(11) Article 429 of the Criminal Law is the crime of refusing to rescue the friendly and neighboring forces.His behavior is to refuse to rescue the critically ill soldiers when conditions permit.The refusal to rescue here is the refusal to perform the obligation of rescue, so this crime is a pure omission.
2. Impure omission
An impure omission refers to a crime committed in the form of omission, which is usually committed in the form of omission.As there is no explicit provision in the criminal law for the impure omission, the judicial organ should pay attention to whether the omission and the act are equivalent when identifying the impure omission crime.Only under the condition of equivalence, can it be identified as an impure crime of omission.For example, the provisions of the criminal law on the crime of intentional homicide include intentional homicide by act and intentional homicide by omission.Such intentional homicide of omission is an impure omission crime.For example, the mother deliberately does not feed the baby, which causes the baby to starve and die.This act of non feeding, as an impure omission, has the same value as the intentional killing, and should be treated as an impure omission.
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Objectively, the crime of refusing to execute a judgment or order is manifested as omission crime and circumstance crime
The objective aspect of the crime of refusing to execute a judgment or order is that the person who has the ability to execute an effective judgment or order made by a people's court refuses to execute it, and the circumstances are serious.It can be seen from the way of behavior that this crime is a typical crime of omission, but it does not mean that only negative physical movements can constitute this crime. On the contrary, the perpetrator often takes many positive actions in order not to execute judgments and rulings.This crime belongs to the crime of circumstances. The act of refusing to implement the judgment or ruling of the people's court does not constitute a crime once it is implemented, but must reach the serious degree of circumstances before it is adjusted by the Criminal Law.For the specific meaning of serious circumstances, please refer to the Interpretation of Article 313 of the Criminal Law issued by the Standing Committee of the National People's Congress in 2002 and the relevant judicial interpretations of the Supreme People's Court.
Knowing that his prior act may cause serious harmful consequences, he can take but does not take active and effective measures to prevent it, and his act is a crime of omission
Whether the negative behaviors of the doer, such as not informing and not stopping, during the occurrence of the case, belong to the crime of omission?In this regard, we need to analyze the constituent elements of the crime of omission.
1. The crime of omission must be based on the premise that the perpetrator has certain specific obligations
This kind of specific obligation usually comes from the following four aspects: the obligation expressly stipulated by law, the obligation required by duty and business, the obligation caused by legal act, and the obligation caused by the prior act of the actor.Among them, the obligation caused by the antecedent act refers to the specific obligation of the actor to take active and effective measures to eliminate the danger or prevent the occurrence of harmful consequences when a certain legal interest protected by the criminal law is in danger due to the previous act of the actor.If the perpetrator fails to perform such obligations, if the circumstances are serious or serious consequences are caused, it is a criminal act committed in the form of "omission".The obligation of antecedent act is derived from the act previously performed by the actor. Whether the act previously performed is illegal is not required.
2. The crime of omission must be that the perpetrator has the ability to perform specific obligations, but fails to perform them.This kind of failure to perform can be manifested as the behavior of evading the obligation to perform, or the behavior of resisting the obligation to perform.
3. There is a causal relationship between the defendant's omission and the harmful consequences.The causal link between the crime of omission and the harmful consequences lies in whether the act of the person of omission can prevent the occurrence of the consequences.Therefore, to judge whether there is a causal relationship between omission and harmful consequences, only when the harmful consequences are about to occur, if the actor performs certain "actions", can the harmful consequences be prevented;If it does not implement "action" to prevent the occurrence of this consequence, then the "inaction" has a necessary causal link with the occurrence of the harmful consequences.
Acts and Omissions of Corruption and Bribery Crimes
The harmful acts committed by criminals can be divided into acts and omissions. Acts and omissions are the types of crimes constituted by the previous forms.As an act, it is easy to understand that omission in the sense of criminal law refers to the act that the perpetrator has a specific legal obligation to implement and can implement but not implement."Both act crime and omission crime refer to the existing criminal forms that are implemented by act or omission". Generally speaking, "in the existing state, various crimes in the specific provisions of the Criminal Law can be divided into three categories: one is the crime constituted by act, which is regarded as an act crime; the other is the crime executed by omission, which can only be constituted by omission, which is regarded as a pure omission crime;The third is the crime that can only be constituted by the form of omission, which is called impure omission crime ".If a passer-by sees a child falling into the water and does not help, it will constitute the crime of intentional homicide. This is an impure omission crime, because intentional homicide can only be constituted by acts. Here, inaction (not helping) constitutes the crime. This crime is also called an untrue omission crime. Of course, the premise for a passer-by to establish a crime here must be that he has obligations of legal significance.
When investigating the objective aspects of the crimes of corruption and bribery, the vast majority of them are as crimes, such as corruption, misappropriation of public funds, bribery, unit bribery, using influence to accept bribes, bribery to influential people, private distribution of state-owned assets, private distribution of confiscated property, bribery, bribery to unit, unit bribery, and bribery introduction;A few crimes are omission crimes, such as the crime of huge amount of property with unidentified sources and the crime of concealing overseas deposits.
For the crime of concealing foreign deposits, in accordance with the provisions of paragraph 2 of Article 395 of the Criminal Law, if the crime of concealing foreign deposits is committed, and the amount is relatively large, and the concealment is not reported, the person shall be sentenced to fixed-term imprisonment of not more than two years, criminal detention or public surveillance.If the circumstances are relatively minor, the unit to which he belongs or the competent authority at a higher level shall, at its discretion, impose administrative sanctions."Minor circumstances" refers to the circumstances where the amount of deposits in the country is small, and after the crime, the person voluntarily confesses, pleads guilty, and has a good attitude.For example, if there is a small amount of deposit or a large amount of deposit during overseas work or study assignment, it should not be convicted if it is reported in time after returning home.The crime of concealing overseas deposits is a pure omission crime, that is, the crime of concealing overseas deposits is an omission crime objectively, and can only be constituted by omission.If it constitutes the crime of concealing overseas deposits, the actor must have the legal obligation to declare overseas deposits.According to Article 17 of the Provisions on the Reporting of Personal Matters by Leading Cadres of Party Members issued by the General Office of the CPC Central Committee and the General Office of the State Council on October 31, 2014, "If a leading cadre has one of the following circumstances, he or she shall be criticized and educated, corrected within a time limit, ordered to make an inspection, admonished conversation, circulated a notice of criticism, or adjusted his or her position, or removed from his or her post according to the seriousness of the circumstances;If it constitutes a violation of discipline, it shall be given disciplinary sanctions in accordance with the relevant provisions: (1) failing to report on time without justified reasons;（2） Failing to report truthfully;（3） Concealing or not reporting;（4） Failing to comply with the reply of the organization.If a person fails to report personal matters in accordance with the provisions and the matter constitutes another disciplinary offence, it shall be consolidated in accordance with the relevant provisions. "Dispose of.The crime of concealing overseas deposits refers to the act of state functionaries who, in violation of state regulations, intentionally conceal large amounts of deposits outside the country."Large amount" is the constitutive element of this crime, but there is no clear judicial explanation for the starting point of "large amount".The filing standards of the Supreme People's Procuratorate can be referred to.The Provisions on the Criteria for the People's Procuratorates to Directly Accept the Filing of Cases for Investigation (Trial) (GJFSZ [1999] No. 2) issued by the Supreme People's Procuratorate on September 9, 1999 stipulates in the content of the cases of corruption and bribery: "(10) Cases of Concealing Overseas Deposits (Paragraph 2 of Article 395)The crime of concealing overseas deposits refers to the act of state functionaries who, in violation of state regulations, intentionally conceal large amounts of deposits outside the country.If it is suspected of concealing overseas deposits and the amount converted into RMB is more than 300000 yuan, the case shall be filed. "
For the crime of huge amount of property of unknown origin, the Criminal Law Amendment (VII) revised the first paragraph of Article 395 of the Criminal Law to read: "If the property and expenditure of a state functionary obviously exceed his lawful income, and the difference is huge, the state functionary may be ordered to explain the source; if the source cannot be explained, the difference shall be regarded as illegal income, and he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention;If the difference is especially huge, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years.The balance of the property shall be recovered. "The objective aspect of this crime is that the property or expenditure of the national staff obviously exceeds the legal income, and the difference is huge. I cannot explain and prove its source.
First, the property or expenditure owned by the actor obviously exceeds the legal income and the difference is huge.This is a prerequisite.
Secondly, the actor can not explain the source and legitimacy of the huge difference between his property or expenditure and legal income.The perpetrator cannot explain that the source is legal, including the situation that although the perpetrator "explained", the judicial organ can not prove the legal source of his explanation.With reference to Item 1 of Article 5 of the Minutes of the National Forum on the Trial of Economic Crime Cases, the perpetrator cannot explain the source of a huge amount of property. According to Paragraph 1 of Article 395 of the Criminal Law, "The perpetrator cannot explain, including the following circumstances: the perpetrator refuses to explain the source of property; the perpetrator cannot explain the specific source of property;The source of the property mentioned by the perpetrator was not verified by the judicial organ;The source of the property mentioned by the perpetrator cannot be verified by the judicial organ due to unspecified clues and other reasons, but it can exclude the possibility and rationality of legal source ".The first item here, "the doer refuses to explain the source of property", is a typical omission crime.
Finally, the property that cannot explain the difference is presumed to be "illegal income".The amount of illegally obtained property of unknown origin, according to the Self investigation Case Filing Standard of the Supreme People's Procuratorate, "should be filed above 300000 yuan".It can be seen that the standard of huge amount should be 300000 yuan.
Case analysis
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The crime of causing death due to negligence (omission crime)
——Hu Yi's case of death caused by negligence
Case gist
If the perpetrator has a dispute with the victim, causing the victim to fall into the river, and the perpetrator carelessly believes that the victim can save himself, leaving the scene and causing the victim to drown, his criminal responsibility shall be investigated as the crime of causing death by negligence (omission crime).
Plea claim
1. The People's Procuratorate of a district in Shanghai accused that
When the defendant Hu Yimou came to Shanghai to visit his wife Hu in early March 2004, he learned that his wife and the victim Chen Bingmou lived together, so he advised Hu to go home. Hu refused and hid with the help of Chen.At 11:00 a.m. on March 15, the defendant Hu Yimou went to Chen Bingmou's work unit to negotiate with Chen.The two men had a dispute on the tractor road on the west side of the factory. When Chen Qi was about to leave, Hu grabbed Chen's arm and threw him into the river. Later, the defendant Hu saw Chen sink into the river and called for help on the spot, but because of hatred, he did not take any effective measures or call the surrounding people, causing Chen to drown without timely assistance.At 12:00 on the same day, the defendant Hu Yimou surrendered himself to the local police station in Kangqiao Town.The public prosecution organ believes that Hu Yimou failed to perform his act obligation arising from his prior act, resulting in the death of another person. His act has violated the provisions of Article 232 of the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law), and he should be investigated for criminal responsibility as the crime of intentional homicide.In view of the fact that the defendant Hu Yimou has voluntarily surrendered, he can be given a lighter punishment according to Article 67 of the Criminal Law.During the court trial, the defendant denied the facts of the crime in court, and the public prosecutor immediately proposed that the defendant did not surrender himself, and proposed that he should be sentenced to fixed-term imprisonment of not less than 11 years but not more than 15 years.
2. Defense of the defendant and defense opinions of the defender
The defendant, Hu Yimou, argued that he did not throw Chen Bingmou into the river. The actual situation was that when the victim, Chen Bingmou, threw himself into the river, he dodged, causing Chen to fall into the air.
The defender of the defendant Hu Yimou believed that the defendant Hu Yimou's behavior only constituted the crime of involuntary homicide, not the crime of intentional homicide, because the victim fell into the water not intentionally by the defendant, but accidentally slipped into the river in the process of pushing and shoving: after the victim entered the water, the defendant did not have the subjective intention to hope or let the victim drown,On the one hand, he left the scene to believe that Chen could save himself, and on the other hand, to prevent the victim from retaliating against him after he went ashore.The defendant Hu's antecedent behavior determines that he has the obligation to implement the rescue. He should foresee that his inaction will cause the death of the victim, but ultimately the victim will die due to negligence.In view of the fact that the defendant Hu Yimou surrendered himself, it is recommended that he be sentenced to fixed-term imprisonment of not less than three years but not more than five years.
Facts and evidence
The people's court of a district in Shanghai found out after public hearing that the defendant Hu Yimou went to the district to visit his wife Hu, who worked here in early March 2004. When he learned that Hu lived with the victim Chen Bingmou, he persuaded Hu to go home. Hu refused and hid with the help of Chen.At about 11:00 a.m. on March 15, the defendant Hu Yimou found Chen Bing working in the unit of Chen Bing, Group 7, a village in Kangqiao Town, the district. The two men had a dispute on the tractor road next to the unit. During the dispute, Chen fell into a river beside the tractor road. The defendant Hu Yimou believed that Chen Bing could swim and climb on his own, leaving the scene.The defendant, Hu Yimou, returned to the scene because he was not at ease, but Chen Bing was not found. He turned himself in at the local police station in Kangqiao Town at about 12:30 that day. The public security organ failed to rescue him in time, and he was released after education.On the 28th of the same month, the body of Chen Bingmou was found in the river. After the criminal technical appraisal of Shanghai Public Security Bureau, Chen died of drowning.The next day, the public security organ went to the hometown of the defendant Hu Yimou and captured him.
The above facts are proved by the following evidence:
1. Testimony of witnesses
(1) Witness Chen Jinyuan testifies that Chen Bing is a person employed by his unit;On March 15, 2004, a man and Chen Bingmou had a quarrel at the factory riverside. Later, they did not see Chen Bingmou. When they called Chen's mobile phone, they turned it off;At about 3:00 pm that day, the man was led by the police to the riverside of the factory to salvage something, but failed;On the 28th of the same month, Chen Bingmou's body was found in Hanoi, west of the factory.
(2) The testimony of Hu, the wife of the defendant Hu Yimou, proved that Hu Yimou persuaded Hu Yimou to change his mind after learning that he had an unfair relationship with Chen Bingmou, and talked with Chen's unit on March 13. On March 14, Hu left his original residence with Chen's help and hid in other places. After 15 days, he never saw Chen Bingmou again. When he called Chen's mobile phone, it was turned off,To Chen's unit could not be found.He also did not see Hu Yimou after noon on the 14th.About 20 days ago, when he contacted Hu Yimou by phone, he said that on March 15, he and Chen Bingmou quarreled with each other by the river near Chen's unit. After pushing and shoving each other for several times, Chen slipped into the river. When he saw Chen standing in the river, Hu turned and walked away. Later, when he turned back to see Chen because he was worried, Chen was gone, and Hu reported the case to the public security organ.
(3) The statement of Hu Ting, the sister of Hu, confirmed that Hu Yimou was her brother-in-law, and her sister was cohabiting with Chen Bing.
(4) The statement of Chen Hu, the younger brother of Chen Bingmou, the victim: it was confirmed that his brother Chen Bingmou lived with Hu, and Chen Bingmou disappeared on March 15, 2004. Later, his wife told him that Hu's husband and Chen Bingmou fought by the river near Chen's work unit before they disappeared, and pushed Chen into the river. Hu's husband reported to the police, but the police failed to salvage Chen.
(5) The statement of Song Haiqin, the sister-in-law of Chen Bingmou, the victim, confirmed that Chen Bingmou and Hu lived together and that Hu's husband fought with Chen Bingmou for Hu.He heard that Hu called to tell him that on March 15, 2004, Hu's husband had a fight with Chen Bingmou and pushed Chen into the river.
2. Record of inspection
(1) The technical office of the criminal investigation detachment of a branch of Shanghai Public Security Bureau (2004) Hu Gong Nan Xing Ji Kan Zi No. 565 on-site inspection records and photos confirm that Chen Bing has died and where his body was found.
(2) Shanghai Municipal Public Security Branch (2004) HGXJJZ No. 0113 autopsy report confirmed that the victim Chen Bing died of drowning.
3. Documentary evidence
(1) A branch of Shanghai Mobile Communications Co., Ltd. inquired about the mobile phone communication used by Chen Bing during his lifetime, and confirmed that the last time he spoke was 11:39 on March 15, 2004.
(2) The case history and explanation made by the public security organ confirmed that Hu Yimou, the defendant, reported the case to the public security organ on the day of the incident. Because the body was not recovered on the same day, Hu was released after education. After Chen Bingmou's body was found on March 28, 2004, Hu was captured the next day.
4. Statement of the defendant
The confession record of the defendant Hu Yimou confirmed that he quarreled with the victim Chen Bingmou on March 15, 2004 at the riverside, pushing and shoving each other, resulting in Chen falling into the water. After leaving, he returned because he was worried, and found that Chen had disappeared, so he reported the case.After the rescue with the police failed, they were educated to return.
ratio decidendi
After hearing the case, the People's Court of a district in Shanghai held that:
1. The defendant, Hu Yimou, caused another person to fall into the river in the process of dispute with another person. He left the scene because he believed that another person could save himself, causing another person to drown. According to the provisions of Article 233 of the Criminal Law, he has committed the crime of causing death by negligence, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.
2. The defendant Hu Yimou can voluntarily surrender to the case and truthfully state his crime. According to the provisions of the first paragraph of Article 67 of the Criminal Law, it is voluntary surrender and can be given a lighter punishment.The Defender believes that the defense opinions of the Defendant Hu Xi on the death caused by negligence conform to the facts and laws of the case, and the Court adopts them.
Final conclusion
In accordance with the provisions of Article 233 and the first paragraph of Article 67 of the Criminal Law of the People's Republic of China, a district people's court in Shanghai made the following judgment:
Hu Yimou was sentenced to five years' imprisonment for the crime of causing death through negligence.
Expert analysis
This case is a typical case in which omission constitutes a crime.The procuratorial organ believes that Hu threw Chen into the river in the process of arguing with the victim Chen, resulting in Chen's drowning, which constitutes the crime of indirect intentional homicide.The defender believes that Chen slipped into the river carelessly in the process of pushing and shoving between the two sides. Hu's antecedent behavior determines that he has the obligation to provide assistance to Chen. His fault lies in that he should have foreseen that his going forward (inaction) will cause Chen's death, but he is too confident that Chen can save himself without giving help. His subjective fault is the fault of overconfidence,It should be recognized as the crime of negligent death.The difference between intentional homicide and negligently causing death mainly lies in the subjective performance of the two crimes.In judicial practice, it is easy to confuse the death caused by overconfident negligence with indirect intentional killing. The key to distinguish the two is the attitude of the actor towards the death result.In addition to "no hope", indirect intention also has the side of "if it happens, it will not violate your own will", which shows a laissez faire attitude towards harmful results.However, the negligence of overconfidence has a fundamentally negative attitude towards the occurrence of harmful consequences.
In this case, the court adopted the opinion of the defender and held that Hu constituted the crime of negligent death.On the one hand, it is impossible to judge how the victim Chen fell into the river from the existing evidence, but it is certain that Chen fell into the river in the process of arguing with Hu.As one of the parties, Mr. Hu, who is sane in mind, should know that Mr. Chen is very dangerous in the river. Under the condition that he has the obligation to eliminate the dangerous state caused by his previous pushing behavior, he is indifferent until he grows away, which eventually leads to the result that Mr. Chen drowned.According to the theory of the obligation to prevent arising from the antecedent act, the act of not providing assistance to Mr. Hu should be recognized as a criminal act, and his criminal responsibility should be investigated according to law.On the other hand, from the situation that Mr. Hu returned to find Mr. Chen shortly after leaving and surrendered to the public security organ, Mr. Hu was negative about the death result of Mr. Chen, and had no hope for Mr. Chen or let his subjective intention of drowning death, including indirect intention.However, after seeing Chen falling into the water, Hu should have foreseen that Chen was in a state of extreme danger and that his inaction would cause Chen's death, but he was confident that Chen could save himself, so he went away and eventually led to Chen's death.It can be inferred from the reality that Hu's confidence is tenable. One thing is that the river at the place of the incident is not very deep, and Chen was standing when he just fell into the river;Second, Hu did not expect that Chen, who grew up in the south, could not swim.In terms of sentencing, according to the provisions of Article 233 of the Criminal Law, those who constitute the crime of negligent death shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years;In view of Mr. Hu's ability to voluntarily surrender and truthfully confess his crime, according to the provisions of the first paragraph of Article 67 of the Criminal Law, he voluntarily surrendered and could be given a lighter punishment, and it is appropriate to be sentenced to five years of fixed-term imprisonment.It can be seen that Mr. Hu should be held criminally responsible for his own omission, whose nature is that he caused death by negligence, which constitutes the crime of causing death by negligence. The procuratorate's charge that Mr. Hu constituted the crime of intentional homicide cannot be established, and the judgment of the court of first instance is correct.
