Viewpoint | Talking about "Intentional" in Criminal Law from Three Examples of Effective Defense"

1. cognitive factors

Different from the visible, perceptible and knowable objective behavior, the subjective aspect of crime is always hidden in the fog of complex objective behavior, and sometimes it is difficult for the parties themselves to accurately define their mentality when they act. In order to clear away the fog of the objective world and restore the subjective mentality of the parties involved in the act through a series of objective facts that really happened at the time of the crime, it is necessary not only to peel off the cocoon and take pains, but also to observe the fire and analyze the logic of reasoning.

In terms of cognitive factors, "knowing that one's own behavior will produce results that harm society", there are two nature understandings, the understanding of natural nature and the understanding of normative nature. The understanding of natural nature means that the perpetrator should have an understanding of the basic facts that may constitute a crime. This requires, first of all, that the perpetrator should have the cognitive capacity, I .e., that the person should at least be able to understand the actions he or she performs and predict the attendant consequences of the actions. For example, people with primary school education should not be punished as a crime if they give away a piece of radioactive mineral they find, which will eventually lead to cancer. Because the person's cognitive level is not enough to realize that the mineral is radioactive and will cause harm to the human body.

Secondly, the perpetrator should also be required to understand the whole process of the act. If the perpetrator is not even clear about the whole picture of the act and only participates in a certain link of the act, his criminal responsibility should not be assessed by the whole result of the act. For example, if the perpetrator is employed as a lookout for the theft of property by others, but in fact the theft is intended to go to the black market to buy firearms and thereby endanger public safety, it is clear that the perpetrator should only be punished as an accomplice in the theft, as he is only aware of part of the whole act.

The understanding of the normative nature is the understanding of the factual normative evaluation level of crime, that is, not only to recognize what kind of behavior itself is, but also to recognize what kind of evaluation the behavior will get in the norms. For example, the crime of concealing or concealing the proceeds of crime and the proceeds of crime requires not only the recognition that the act is an act of acquisition and concealment, but also the recognition that the object of the act is an asset that is evaluated as "proceeds and proceeds of crime" in the legal order. If there is really no such normative nature of the understanding, the same does not constitute a crime.

In a loan fraud case undertaken by the author, the author acted as a defender for the second defendant B in the case. The case involved tens of billions of dollars, resulting in huge losses to the 0.68 billion. During the defense process, the author noticed that the crime was complicated and the financing model involved was very professional. Although the second defendant B was the most effective assistant of the first defendant A, B actually had a very low education. And, in this crime, B is only responsible for playing the role of the top of the state-owned enterprise, signing the loan contract, and receiving the acceptance bill from the bank. The author thus starts with the understanding of the nature of nature and argues to the court that, first, B does not have the ability to understand. There is a lack of understanding of the professional financing model, financial contracts, and acceptance bills and other facts. Second, B does not understand the whole process of the crime. In this crime, A did not fully inform B of the truth, but only told him to pretend to be a senior official of a state-owned enterprise to negotiate with bank personnel according to his own arrangement. Because of its lack of comprehensive understanding of the crime, it is unable to form an understanding of the objective aspects and harmful consequences of the crime involved. Third, B does not have the purpose of illegal possession. B does not know the operating status, debt status, solvency, etc. of the company under A's control, nor does B know the actual possession of funds and the disposition of financial instrument discount funds.

In the end, the court adopted the defense. In the case that the first defendant A in the joint crime has been found to be guilty of bill fraud and sentenced to life imprisonment, B is found to be guilty of fraudulent bill acceptance and is only sentenced to five years and six months in prison.

2. will factor

According to the degree of tolerance for the possible harmful results, the intentional will factor can be divided into two kinds: "hope" which constitutes "direct intention" and "laissez-faire" which constitutes "indirect intention". Hope is the purposeful pursuit of results and the intention to actively implement the results of a constituent element. Correspondingly, laissez-faire refers to a conniving attitude towards the possible outcome.

Therefore, on the one hand, the will factor is premised on the understanding of the results and is essentially inseparable from the cognitive factor. In particular, indirect intent, although it is based on laissez-faire as its intended form, is based on the considerable possibility of the result. If the possibility of the result is very small, even if the behavior is carried out without caring about the result, it can not be considered laissez-faire.

On the other hand, the will factor has its own independent consideration value. The hope of the result is often reflected in the objective behavior as taking measures to actively pursue the realization of the result, while the laissez-faire of the result, because it does not care whether the harmful result occurs, "even if it occurs, it is acceptable", so in the objective behavior is often reflected as not taking measures to avoid the realization of the result. In this regard, indirect intent can be distinguished from overconfident negligence. Overconfident negligence requires an evasive attitude towards harmful results. "If it happens, it is over". Objectively, it is often necessary to take certain measures to prevent the occurrence of the results.

In a case of endangering public safety by dangerous means undertaken by the criminal business team of the author, A suffered from an unknown disease similar to epilepsy and could not be diagnosed after years of seeking medical treatment. One day, a sudden illness fainted during driving, causing the vehicle to lose control, causing one person to die after rescue, one person was injured, and three vehicles were damaged. The public prosecution organ held that A, knowing that he was suffering from the disease and was not suitable for driving, still stopped taking the drug without authorization and caused fainting. He had indirect intention of laissez faire and should be punished as a crime of endangering public safety by dangerous means. This crime is a felony in the field of public security. The starting sentence is ten years. If it is established, it is undoubtedly an unbearable heavy sentence for A.

The undertaking lawyer suggested that, first of all, laissez-faire still presupposes the existence of an understanding of the outcome, while A does not have an understanding basis. The major hospitals that A has visited for many years have not diagnosed him with epilepsy. The public prosecution's claim of epilepsy is only inferred from the appearance of A syncope. However, the pathological causes of sudden syncope are very complex and can lead to a variety of causes. The diagnosis of epilepsy cannot be made hastily based on the description of the patient and his family. Second, A does not have the will factor of laissez-faire. Before the accident, A felt unwell and had stopped and looked for medication. However, due to A's hasty parking, the vehicle gear is still in the driving gear. When a pedestrian happened to pass by, A was in a trance to avoid hitting the pedestrian. In a panic, he mistook the accelerator for the brake, resulting in an accident. In fact, A took a series of measures to avoid the occurrence of harmful results, including parking, medication, etc. This is clearly fundamentally different from indirect intent that does not take evasive measures and does not care whether the harmful result occurs.

In the end, the court adopted the above point of view, and the case was identified as a traffic accident crime, realizing the transformation from fixed-term imprisonment of more than ten years to fixed-term imprisonment of less than three years.

3. Purpose Factors

A crime for the purpose of committing a crime in which the perpetrator subjectively has a specific purpose or intention as a constituent element, and its provisions are widely found in the chapters of the criminal law, such as the purpose of "illegal possession" in the crime of infringement of property, and the purpose of profit or dissemination in the crime of obscene articles. On the one hand, the purpose is the direct direction of objective behavior. The actor decides a certain purpose through his own free will, and chooses the appropriate behavior objectively according to the purpose. The actor has foresight and predetermination of the nature of the behavior he chooses and its possible harmful results, that is, the actor has a clear understanding of the causal relationship between the harmful behavior and the harmful result; on the other hand, the purpose is a part of subjective intention, which represents the willingness of the actor to transform the harmful result in reality, that is, the actor has a positive psychological attitude towards the occurrence of the harmful result.

It should therefore be noted that it is the purpose that determines the objective act, not the objective act. It is entirely possible that the same objective act is carried out for different purposes. In criminal defense, special care should be taken to avoid simply pushing the subjective purpose backwards through objective behavior.

Take the forced indecency case of Li Si undertaken by the author as an example. Zhang San wanted to collect evidence of her husband's infidelity for divorce because her husband had an extramarital affair with the victim. He called several relatives including his daughter Li Si to help "catch the rape" and collect evidence. When he caught the rape in bed and saw his husband sleeping naked with the victim, Zhang San lost control of his emotions. In order to vent his anger, Li Si and others controlled, abused, pulled, and "grabbed the lower body" and "touched the breast". In addition, Li Si and Zhang San did not let the victim wear clothes and instructed relatives to take nude photos of him. Interestingly, in this case, the police also called the police because Li Si and others reported the case. However, when the police arrived at the scene, they found that the retaliation had gone beyond the scope of "catching rape. The "evidence" originally taken by Li Si and others to sue for divorce has instead become evidence of the crime of compulsory indecency.

The author puts forward that if it constitutes the crime of compulsory indecency, it is necessary to enrich the purpose elements, that is, "to pursue sexual stimulation and sexual satisfaction as the purpose", and the actor needs to have a specific tendency to stimulate and satisfy sexual desire. However, in this case, although Li Si and others objectively carried out a series of acts that hurt the victim's sexual self-esteem, such as attacking private parts and taking nude photos, Li Si's purpose was to "catch rape to vent his anger" and "vent his anger on behalf of his mother". Moreover, Li Si himself is a woman, and in fact, it is impossible to carry out the above acts out of "pursuit of sexual satisfaction. Although the behavior in this case is bad in nature, it seriously infringes on the victim's self-esteem and goes beyond the scope of simple civil disputes, but it should not constitute the crime of compulsory indecency, but should constitute the crime of insulting "infringing on the personal reputation of citizens. The crime of insult is a crime of private prosecution in accordance with the law, and the victim should go to the court to prosecute himself, and should not be investigated by the public security organ.

In the end, the author's defense opinions based on different subjective purposes were adopted by the procuratorial organ. The procuratorial organ informed the public security organ to withdraw the case in accordance with the law, and informed the victim to prosecute on his own. In the process, he reached a settlement with the victim, stopped the lawsuit, and the case was acquitted.