Recently, Hu Rui represented three typical cases of provoking trouble (assault, destruction of property, verbal abuse and intimidation), and through focusing on the core disputes of the cases, clarifying the boundaries of the application of the law, accurately dismantling the chain of evidence, and invoking the support of the judgments of similar cases and other professional defenses, he was able to break through the key points of the accusations one by one. In the end, all three cases were effectively defended, and the abuse of the typical “pocket crime” of picking quarrels and provoking trouble was strongly curbed by solid defense practice.
The “pocket crime” should be strictly applied on the track of the rule of law.
The law of criminal justice is the cornerstone of modern criminal justice, but also the fundamental protection of civil rights from arbitrary infringement of the right to punishment. The “pocket crimes” represented by the crime of provoking trouble and illegal business operation, due to the strong generality of the constituent elements and the flexibility of the determination standard, are easily expanded in judicial practice, and there is a risk of blurring the boundaries of responsibility and infringing on the legitimate rights and interests of citizens.
Among them, the crime of picking quarrels and provoking trouble, as the most typical and widely applicable “pocket crime”, is also a landmark crime in organized crime, and is often found to be ‘arbitrary’, “social order” and other core elements in judicial practice. In judicial practice, due to the ambiguity of the criteria for determining core elements such as “arbitrariness” and “social order”, it has been inappropriately applied to various types of non-malicious conflict scenarios such as civil disputes and rights maintenance.
Strictly regulating the application of “pocket crime” and preventing arbitrary expansion is the inevitable requirement of adhering to the law of crime and punishment and maintaining judicial justice. Hu Rui lawyers focus on “pocket crime” judicial application of chaos, with individual defense to promote the application of the law back to the rule of law, through accurate clarification of the legal boundaries, abide by the rules of evidence adjudication, and resolutely curb the improper expansion of the legal rights and interests of the parties to effectively guard.
Case one: assault provocation case
Hu Rui lawyer Wang (a pseudonym) is suspected of assault provocation crime case, the court after hearing, adopt Hu Rui lawyer on “Wang does not constitute provocation crime caused by multiple injuries,” the core of the defense.
First, the core of the case dispute: civil disputes triggered by the counterattack behavior, can be recognized as provoking trouble crime.
Wang Mou and his friends and others due to verbal misunderstanding fight, the other first armed attack, Wang Mou and others then counterattack, both sides have different degrees of injury. Therefore was accused of: wang mou together with others “randomly beat” a number of victims, resulting in a number of injuries, constituting the crime of provoking trouble.
Second, the main points of defense: argument does not constitute the crime of picking quarrels and provoking trouble, and directly hit the wrong application of the law.
Hu Rui lawyer intervention, through the frame by frame analysis of the surveillance video, carefully check the verbal evidence, in-depth combing of the case referee, focusing on four aspects of Wang Mou does not constitute the crime of picking quarrels and provoking trouble:
1.subjective aspect: wang mou has no intention to provoke trouble. The crime of provoking trouble requires the perpetrator to have “seeking excitement, venting emotions, show off” subjective intent. But the evidence in the case shows that wang mou initially actively resolve the conflict, no active provocation intention; subsequent participation in the fight is due to the other side of the armed attack, the purpose is to stop the unlawful invasion, to protect themselves and their friends safety, do not have the subjective motive of provoking trouble.
2. Objective aspects: the behavior does not belong to the “random assault”. “Randomly beating others” is the core objective characteristics of the crime of provoking trouble, requiring the beating behavior has “no justifiable reason, regardless of the object, wantonly” attribute. In this case, the other side first armed attack, wang mou's counterattack is being carried out against a specific person, the object of a specific, defensive nature of the behavior, no “regardless of the object, wantonly” arbitrariness;
3. The application of law: the victim is mainly responsible for the intensification of conflicts, the defendant should not be identified as provoking trouble. According to the supreme people's court, the supreme people's procuratorate “on the handling of criminal cases of provocation of harassment of a number of issues of the interpretation of the law,” the second paragraph of article 1 of the exclusion of the provisions of the “conflict is triggered by the victim intentionally, or the victim of the intensification of the conflict bears the main responsibility for the”, should not be recognized as provocation of harassment. In this case, the conflict is triggered by civil disputes, the victim first insults, the first hands, armed assault, the conflict was triggered and aggravated by the main responsibility, according to the law should not be provoked by the crime of evaluation of the defendant's behavior.
4. Accurate search, strengthen the defense basis. Hu Rui lawyers around the “provocation of the crime of constitutive elements” “the impact of the victim's fault” and other core issues, retrieved in recent years a number of "civil disputes triggered conflict, the victim first hand triggered the conflict, the perpetrator of the counter-attack not to be recognized as provocation. Determined as provocation of trouble“ of the adjudication of cases, the formation of the ”case search report", for the defense of the case provides a strong support.
Third, the effectiveness of the defense: directly hit the core of the dispute, the court adopted the defense opinions
During the trial, the defense lawyer focused on the above core viewpoints, disassembled the surveillance video and other evidence materials, and combined with legal provisions, case-like adjudication, fully expressed their views, logically and rigorously argued that there was insufficient evidence and qualitative errors, so that the panel fully recognized the defense viewpoints. The court adopted the core defense opinion that “Wang Mou does not constitute the crime of provoking trouble and causing injury to many people”.
Case 2: Destruction of property and provoking trouble
Hu Rui represented Yuan Mou (a pseudonym), who was suspected of the crime of provoking trouble by destroying property. Through precise dismantling of evidence, digging into disputes over the application of law, and strengthening the support of the adjudication of similar cases, Hu Rui successfully pushed the procuratorial authorities to change the characterization of the case, and to change the original charge of provoking trouble to the less serious crime of intentionally destroying property, thus effectively avoiding the inappropriate application of the crime of “pocket crime”. The case was effectively avoided the improper application of the “pocket crime”.
First, the core of the case dispute: parking disputes triggered by specific property damage, can be recognized as the crime of provocation and harassment
Yuan Mou due to the community owners long-term illegal parking outside the window of his residence, resulting in the invasion of privacy, after posting warning strips, the police to seek help and other legal means to defend the rights of no avail, because of the suspected damage to the two illegally parked vehicles, was accused of arbitrary destruction of public and private property, disrupting the social order, constituting the crime of provocation of trouble and be arrested.
Second, the defense point: dismantle the elements, arguing that the crime of provoking trouble is not established.
For the focus of the accusation, Hu Rui lawyer from the “elements of dismantling, class case support” and other aspects of the refinement of the defense:
1. Subjective aspect: Yuan has no “provocation motive”, is the intention of the right. Victims of long-term illegal parking violation of their privacy, and the legal rights of no avail, the subjective intention is to prevent infringement, to protect their own rights and interests, and the crime of provocation requires “seeking excitement, show off” hooligan motives completely contradictory.
2. Objective aspects: behavior without “arbitrariness”, the object has specificity. This case is only for the specific violation of the vehicle parked outside the window, did not expand the scope of infringement, does not meet the crime of provocation “randomly select unspecified object” characteristics; behavior intensity and the degree of contradiction matches, only caused local paint damage, did not destroy the core function of the vehicle, no expansion of the damage situation.
3. Object: did not damage the “social public order”, did not violate the core legal interests protected by the crime - social order. The scene of the crime is a closed area attached to the district, not a “public place” in the sense of criminal law; objectively only affects the victim's private property rights and interests, and does not cause the owners to gather, traffic jams, mass panic and other public order chaos, the essence of private rights and interests of the controversy.
4. Precise invocation of the case: reference to the Supreme People's Court case decision gist, the case because of other people's illegal parking damage caused by the behavior, the court to “no provocation motive, did not disrupt the public order, the victim was at fault” as the reason that does not constitute the crime of provocation, this case and the case of the core facts are highly consistent with the case, should be followed The principle of “the same case, the same sentence”.
Third, the effectiveness of the defense: characterization successfully corrected, review and prosecution stage “pocket crime” application was denied.
Defense lawyers around the above core points, submitted legal opinions, evidence retrieval applications and authority cited, combined with the evidence repeatedly communicated with the procuratorial authorities, fully argued provocative crime qualitative error and insufficient evidence of the core issues.
In the end, the procuratorial authorities fully adopted the defense opinions and recognized that the case was a private rights and interests dispute “for a reason”, which did not meet the constitutive elements of the crime of picking quarrels and provoking trouble, and effectively avoided the improper application of the crime of picking quarrels and provoking trouble, which not only safeguarded the legitimate rights and interests of the parties concerned, but also demonstrated the judicial influence on the crime of picking quarrels and provoking trouble. In addition, it also highlights the strict regulation of judicial “pocket crime”, and realizes the unity of legal effect and social effect.
Case 3: verbal abuse and intimidation provocation and harassment case
Hu Rui represented Lu Mou (a pseudonym) suspected of a series of provocative crimes, through precise combing of the evidence chain, checking the factual doubts, and successfully argued that the alleged facts were unclear and the evidence was insufficient, and eventually Lu Mou was found not to constitute a provocative crime, which avoided the ambiguity of the application of the “pocket crime”.
First, the case of the core dispute: no clear point to participate in the confession, can be determined to constitute the crime of provoking trouble
Mr. Lu was initially accused of being involved in a series of incidents of verbal abuse and intimidation, which constituted the crime of picking quarrels and provoking troubles.
Hu Rui lawyer intervention, through a comprehensive review of the file materials, found that the core dispute focuses on the “factual findings”: one is the existing evidence can clearly point to Lu's participation in a specific abusive, intimidating behavior; two is the co-defendant statement and the victim statement whether the formation of a closed loop, enough to confirm the degree of Lu's participation and the specific behavior.
Second, the defense point: hit the evidence defects, deny the fact that the basis of determination
For the focus of the accusation, Hu Rui lawyer around the “evidence relevance, confession consistency” to carry out the refinement of the defense, resolutely opposed to the “staff status” presumption of crime “pocket”. Determination:
1. Verbal evidence is not clear, the victim statement only general reference to “staff” and other group characteristics, did not clearly identify Lu involved in verbal abuse, intimidation, and did not describe the specific time, place, words and deeds, can not establish a direct correlation. Some of the co-defendants confessed that Lu was one of the staff, but did not specify which behaviors were related to Lu.
2. this case no monitoring, recording and other direct evidence, and the victim can not accurately identify Lu as a tortfeasor, to “staff” identity presumed to participate in a series of crimes, contrary to the “subjective and objective consistency” principle.
3. According to article 55 of the criminal procedure law, the evidence of conviction should be sufficient, beyond reasonable doubt. The core facts of this case is vague, can not exclude reasonable doubt that Lu did not commit the alleged acts, the identity of the general attribution of provocation crime “pocket” abuse, contrary to the principle of criminal law.
Third, the effectiveness of the defense: unclear facts and insufficient evidence, the charge is not established.
The defense lawyers focused on the above core points, submitted evidence combing reports and defense opinions, repeatedly communicated with the prosecuting authorities about the defects in the evidence and the risk of abuse of “pocket crime”, clearly pointed out that “staff status ≠ specific criminal behavior”, and emphasized that the determination of a series of provocative crimes should be based on “each and every criminal act”. It also emphasized that the determination of a series of provocative crimes should be based on the premise that “the facts of each act are clear and the evidence is solid”.
Eventually, the prosecution adopted the defense opinion, recognized the existing evidence can not be clear which Lu involved in specific verbal abuse, intimidation, the defendant confession and the victim statement lack of effective corroboration, the core facts are not clear, insufficient evidence, does not meet the crime of provocation of harassment of the determination of the standard, according to the law that Lu does not constitute the crime of provocation of harassment. The defense not only adhere to the “evidence” principle, but also accurately regulate the “pocket crime” fuzzy application, highlighting the rigor of the factual findings of the criminal defense and the accuracy of the application of the law.
