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Notice of the Supreme People's Court on Issuing the Eighteenth Group of Guiding Cases [Effective]
最高人民法院关于发布第18批指导性案例的通知 [现行有效]
【法宝引证码】

Notice of the Supreme People's Court on Issuing the Eighteenth Group of Guiding Cases 

最高人民法院关于发布第18批指导性案例的通知

(No. 164 [2018] of the Supreme People's Court) (法〔2018〕164号)

The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous: 各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:
Upon deliberation and decision of the Judicial Committee of the Supreme People's Court, four cases including case 0f intentional injury by Yu Huan (Guiding Cases No. 93-96) are hereby issued as the eighteenth group of guiding cases for reference in trial of similar cases. 经最高人民法院审判委员会讨论决定,现将于欢故意伤害案等四个案例(指导案例93-96号),作为第18批指导性案例发布,供在审判类似案件时参照。
Supreme People's Court 最高人民法院
June 20, 2018 2018年6月20日
Guiding Case No. 93 指导案例93号
Intentional Injury by Yu Huan 于欢故意伤害案
(Issued on June 20, 2018 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2018年6月20日发布)
Keywords: criminal; crime of intentional injury; illegal restriction of personal freedom; self-defense; unjustifiable self-defense 关键词 刑事/故意伤害罪/非法限制人身自由/正当防卫/防卫过当
Key Points of Judgment 裁判要点
1. An ongoing act of illegally restricting the personal freedom of a person shall be determined as "unlawful infringement" for the purposes of paragraph 1, Article 20 of the Criminal Law, in which case justifiable defense may be exercised. 1.对正在进行的非法限制他人人身自由的行为,应当认定为刑法二十条第一款规定的“不法侵害”,可以进行正当防卫。
2. An act of illegally restricting the personal freedom of a person accompanied by the act of insults and minor beatings shall not be determined to be “violent crime that seriously endangers personal safety” for the purposes of paragraph 3, Article 20 of the Criminal Law. 2.对非法限制他人人身自由并伴有侮辱、轻微殴打的行为,不应当认定为刑法二十条第三款规定的“严重危及人身安全的暴力犯罪”。
3. In judging whether the defense was unjustifiable, it shall be comprehensively taken into account such factors as the nature, means, intensity, and harm of unlawful infringement and the nature, timing, means, intensity, environment, harmful consequence, and other circumstances of defense. If defense happens, causing death or serious injury, in respect of remote unlawful infringement of illegal restriction of the personal freedom of a person accompanied with insults and minor beatings, the defense shall be determined to "obviously exceed the necessary limit and cause material damage" for the purposes of paragraph 2, Article 20 of the Criminal Law. 3.判断防卫是否过当,应当综合考虑不法侵害的性质、手段、强度、危害程度,以及防卫行为的性质、时机、手段、强度、所处环境和损害后果等情节。对非法限制他人人身自由并伴有侮辱、轻微殴打,且并不十分紧迫的不法侵害,进行防卫致人死亡重伤的,应当认定为刑法二十条第二款规定的“明显超过必要限度造成重大损害”。
4. Where unjustifiable defense results from the victim conducting unlawful infringement which seriously degrades another person or desecrates human relations, the reason shall be fully considered in sentencing, in order to ensure that the judicial adjudication can withstand legal test and remains in line with the public concept of equity and justice. 4.防卫过当案件,如系因被害人实施严重贬损他人人格尊严或者亵渎人伦的不法侵害引发的,量刑时对此应予充分考虑,以确保司法裁判既经得起法律检验,也符合社会公平正义观念。
Relevant Legal Provisions 相关法条
Article 20 of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第二十条
Basic Facts 基本案情
Su A, mother of defendant Yu Huan, operated the Shandong Yuanda Industry and Trade Co., Ltd. (hereinafter referred to as the "Yuanda Company") in Guan County Industrial Park, Shandong province, and Yu Huan worked with the company. On July 28, 2014, Su A and her husband Yu A borrowed CNY1 million from Wu A and Zhao A, and the two parties verbally agreed on 10% monthly interest rate. As of October 20, 2015, Su A had repaid a total of CNY1.54 million. Before that, Wu A and Zhao A instructed victims Guo A et al. to collect the debt by camping at the car shed of Yuanda Company, cooking in front of the office building, and other means because Su A defaulted on the debt. On November 1, 2015, Su A and Yu A borrowed another CNY350,000 from Wu A and Zhao A, of which the two parties verbally agreed on 10% monthly interest rate on CNY100,000; and for the rest CNY250,000, concluded a contract of sale of house, mortgaging a house under the name of Yu A and agreeing on transferring the house to Zhao A in case of default on the debt. From November 2, 2015 to January 6, 2016, Su A repaid a total of CNY298,000 to Zhao A. Wu A and Zhao A believed that the CNY298,000 was the interest on the first debt of CNY1 million, while the Su A and her husband thought it was used to repay the second debt. Wu A and Zhao A repeatedly urged Su A and her husband to continue repayment or to go through the house transfer formalities, but Su A and her husband did neither. 被告人于欢的母亲苏某在山东省冠县工业园区经营山东源大工贸有限公司(以下简称源大公司),于欢系该公司员工。2014年7月28日,苏某及其丈夫于某1向吴某、赵某1借款100万元,双方口头约定月息10%。至2015年10月20日,苏某共计还款154万元。其间,吴某、赵某1因苏某还款不及时,曾指使被害人郭某1等人采取在源大公司车棚内驻扎、在办公楼前支锅做饭等方式催债。2015年11月1日,苏某、于某1再向吴某、赵某1借款35万元。其中10万元,双方口头约定月息10%;另外25万元,通过签订房屋买卖合同,用于某1名下的一套住房作为抵押,双方约定如逾期还款,则将该住房过户给赵某1。2015年11月2日至2016年1月6日,苏某共计向赵某1还款29.8万元。吴某、赵某1认为该29.8万元属于偿还第一笔100万元借款的利息,而苏某夫妇认为是用于偿还第二笔借款。吴某、赵某1多次催促苏某夫妇继续还款或办理住房过户手续,但苏某夫妇未再还款,也未办理住房过户。
On April 1, 2016, Zhao A and victims Du B and Guo A et al. replaced the door lock of and moved in the aforesaid house, and Su A filed a report with the police. Zhao A produced the contract of sale of house, and the police left after mediation. On the morning of the 13th day of the same month, Wu A and Zhao A together with Du B, Guo A, and Du G moved the items in the aforesaid house out, and Su A filed a report with the police. When the police arrived, Wu A said that it was ae dispute concerning sale of house, and the police informed the two parties of seeking settlement by consultation or bringing action. After the police left, Wu A scolded Su A and pressed Su A's head to a position in the flush toilet close to the water surface. On the afternoon that same day, Zhao A et al. moved the items in the aforesaid house to the gate of Yuanda Company. Su A and Yu A called the mayor hotline several times for help. In the evening, Yu A reached a verbal agreement with Wu A through mediation by another person, stipulating that the house shall be transferred to Zhao A the next day in addition to a later payment of CNY300,000 to pay off the principal of the debt and the interest on the same. 2016年4月1日,赵某1与被害人杜某2、郭某1等人将于某1上述住房的门锁更换并强行入住,苏某报警。赵某1出示房屋买卖合同,民警调解后离去。同月13日上午,吴某、赵某1与杜某2、郭某1、杜某7等人将上述住房内的物品搬出,苏某报警。民警处警时,吴某称系房屋买卖纠纷,民警告知双方协商或通过诉讼解决。民警离开后,吴某责骂苏某,并将苏某头部按入座便器接近水面位置。当日下午,赵某1等人将上述住房内物品搬至源大公司门口。其间,苏某、于某1多次拨打市长热线求助。当晚,于某1通过他人调解,与吴某达成口头协议,约定次日将住房过户给赵某1,此后再付30万元,借款本金及利息即全部结清。
On April 14, Yu A and Su A did not go through the house transfer formalities. At about 16:00 that same day, Zhao A gathered Guo B, Guo A, Miao A, and Zhang C to collect the debt at Yuanda Company. In order to find Yu A and Su A, Guo A filed a report with the police, stating that Yuanda Company made a financial seal without permission. When the police arrived at Yuanda Company, Su A and Zhao A et al. had a quarrel on account of the repayment dispute. The police informed the parties of settling the dispute by consultation or bringing action in the court. After answering a call from Zhao A, Li C together with Me A, Zhang B and victims Yan A and Cheng A arrived at Yuanda Company. Zhao A et al. shouted in front of the office building, waited in the financial room and outside the dining hall, and barbecued and drank outside the hall of the office building, in order to urge Su A to repay, during which, Zhao A and Miao A left. At about 20:00, Du B and Du G came to Yuanda Company to drink with Li C et al. At 20:48, Su A came to the reception room on the first floor of the office building at Guo's request, accompanied by Yu Huan and the company's employees Zhang A and Ma A. At 21:53, Du B et al. entered the reception room to collect the debt and took away and put the mobile phones of Su A and Yu Huan on the desk. Du B verbally abused Su A, Yu Huan and his family, threw a cigarette butt onto the part of the clothes of Su A in the breast, pulled his pants to his thigh to expose his private parts, and twisted his body left and right towards Su A et al. sitting on the sofa. Under the dissuasion of Ma A and Li C, Du B put on his pants but took off the shoes of Yu Huan and made Su A smell them, and Su A dropped them. Du B also slapped Yu Huan across his face, while other debt collectors performed acts such as grabbing the hair of Yu Huan or pressing Yu Huan in his shoulders to prevent him from standing up. At 22:07, an employee of the company, Liu A, called the police. At 22:17, police officer Zhu A led auxiliary police officers Song A and Guo C to the reception room of Yuanda Company to ask for information. Su A and Yu Huan alleged that Du B beat Yu Huan, but Du B et al. denied and claimed that they were collecting debts. At 22:22, Zhu A warned the two parties against fighting each other, then led the auxiliary police officers to the courtyard to look for the reporter, and informed the police officer on duty, Xu A, of the event by call. Yu Huan and Su A wanted to leave the reception room with the police, but Du B et al. prevented them and forced Yu Huan to sit down, and Yu Huan refused. Du B et al. pressed Yu Huan in his neck and pushed Yu Huan to the southeast corner of the reception room. Yu Huan held a single-blade knife with a blade 15.3 cm long and warned Du B et al. against approaching. Du B verbally provoked and approached Yu Huan, and Yu Huan stabbed Du B in the abdomen once and surrounding Cheng A in the chest, Yan A in the abdomen, and Guo A in the back once for each. At 22:26, the auxiliary police officers heard the noise and returned to the reception room. At the repeated order of the auxiliary police officers, Yu Huan surrendered the knife. The four injured persons including Du B were taken to Guan County People's Hospital by Du G et al. by vehicle. At 2:18 the next day, despite emergency treatment, Du B died of hemorrhagic shock caused by proper hepatic artery laceration and hepatic right lobe trauma caused by the abdominal injury. The injury of either Yan A or Guo A constituted Class-II serious injury, and the injury of Cheng A constituted Class-II minor injury. 4月14日,于某1、苏某未去办理住房过户手续。当日16时许,赵某1纠集郭某2、郭某1、苗某、张某3到源大公司讨债。为找到于某1、苏某,郭某1报警称源大公司私刻财务章。民警到达源大公司后,苏某与赵某1等人因还款纠纷发生争吵。民警告知双方协商解决或到法院起诉后离开。李某3接赵某1电话后,伙同么某、张某2和被害人严某、程某到达源大公司。赵某1等人先后在办公楼前呼喊,在财务室内、餐厅外盯守,在办公楼门厅外烧烤、饮酒,催促苏某还款。其间,赵某1、苗某离开。20时许,杜某2、杜某7赶到源大公司,与李某3等人一起饮酒。20时48分,苏某按郭某1要求到办公楼一楼接待室,于欢及公司员工张某1、马某陪同。21时53分,杜某2等人进入接待室讨债,将苏某、于欢的手机收走放在办公桌上。杜某2用污秽言语辱骂苏某、于欢及其家人,将烟头弹到苏某胸前衣服上,将裤子褪至大腿处裸露下体,朝坐在沙发上的苏某等人左右转动身体。在马某、李某3劝阻下,杜某2穿好裤子,又脱下于欢的鞋让苏某闻,被苏某打掉。杜某2还用手拍打于欢面颊,其他讨债人员实施了揪抓于欢头发或按压于欢肩部不准其起身等行为。22时07分,公司员工刘某打电话报警。22时17分,民警朱某带领辅警宋某、郭某3到达源大公司接待室了解情况,苏某和于欢指认杜某2殴打于欢,杜某2等人否认并称系讨债。22时22分,朱某警告双方不能打架,然后带领辅警到院内寻找报警人,并给值班民警徐某打电话通报警情。于欢、苏某想随民警离开接待室,杜某2等人阻拦,并强迫于欢坐下,于欢拒绝。杜某2等人卡于欢颈部,将于欢推拉至接待室东南角。于欢持刃长15.3厘米的单刃尖刀,警告杜某2等人不要靠近。杜某2出言挑衅并逼近于欢,于欢遂捅刺杜某2腹部一刀,又捅刺围逼在其身边的程某胸部、严某腹部、郭某1背部各一刀。22时26分,辅警闻声返回接待室。经辅警连续责令,于欢交出尖刀。杜某2等四人受伤后,被杜某7等人驾车送至冠县人民医院救治。次日2时18分,杜某2经抢救无效,因腹部损伤造成肝固有动脉裂伤及肝右叶创伤导致失血性休克死亡。严某、郭某1的损伤均构成重伤二级,程某的损伤构成轻伤二级。
Judgment 裁判结果
On February 17, 2017, the Intermediate People's Court of Liaocheng City, Shandong province entered the Criminal and Incidental Civil Judgment No. 33 [2016], First, Criminal Division, 15, Shandong, convicting defendant Yu Huan of intentional injury, sentencing him to life imprisonment, depriving him of political rights for life, and compensating plaintiffs in incidental civil procedure for economic loss. 山东省聊城市中级人民法院于2017年2月17日作出(2016)鲁15刑初33号刑事附带民事判决,认定被告人于欢犯故意伤害罪,判处无期徒刑,剥夺政治权利终身,并赔偿附带民事原告人经济损失。
After the judgment was pronounced, defendant Yu Huan and certain plaintiffs in the incidental civil procedure were dissatisfied and respectively appealed. Upon trial, the Higher People's Court of Shandong province entered the Criminal and Incidental Civil Judgment No. 151 [2017], Final, Criminal Division, Shandong on June 23, 2017: Dismissing the appeal with respect to incidental civil procedure and affirming the incidental civil part of the original judgment; and vacating the criminal part of the original judgment and sentencing Yu Huan to a fixed-term imprisonment of five years for intentional injury. 宣判后,被告人于欢及部分原审附带民事诉讼原告人不服,分别提出上诉。山东省高级人民法院经审理于2017年6月23日作出(2017)鲁刑终151号刑事附带民事判决:驳回附带民事上诉,维持原判附带民事部分;撤销原判刑事部分,以故意伤害罪改判于欢有期徒刑五年。
Judgment's Reasoning 裁判理由
It was held in the effective judgment of the court: defendant Yu Huan stabbed four persons including Du B with a knife to stop present unlawful infringement, and his conduct was of the nature of defense; and his defense caused the serious consequences of the death of one person, serious injury of two persons, and minor injury of one person, obviously exceeded the necessary limits, caused material damage, and constituted the crime of intentional injury, for which he should be criminally liable according to the law. In view of the fact that Yu Huan's conduct was unjustifiable defense, Yu Huan truthfully confessed to the main crime after being brought into custody, and victims fell under circumstances such as the serious fault of insulting Yu Huan's mother by evil means, Yu Huan should be punished in a mitigated manner according to the law. It was correct for the original judgment to find Yu Huan of intentional injury, and the trial procedure was legal. But the facts established were not comprehensive, it was erroneous in the application of law in respect of certain items of the criminal judgment, and the sentence was too heavy. Hence the judgment was changed, and Yu Huan was sentenced to a fixed-term imprisonment of five years according to the law. 法院生效裁判认为:被告人于欢持刀捅刺杜某2等四人,属于制止正在进行的不法侵害,其行为具有防卫性质;其防卫行为造成一人死亡、二人重伤、一人轻伤的严重后果,明显超过必要限度造成重大损害,构成故意伤害罪,依法应负刑事责任。鉴于于欢的行为属于防卫过当,于欢归案后如实供述主要罪行,且被害方有以恶劣手段侮辱于欢之母的严重过错等情节,对于欢依法应当减轻处罚。原判认定于欢犯故意伤害罪正确,审判程序合法,但认定事实不全面,部分刑事判项适用法律错误,量刑过重,遂依法改判于欢有期徒刑五年。
The issue in the application of the law in the case lay in two aspects: first, the nature of the stab by Yu Huan, that is, whether it was defensive, whether it was special justifiable defense, or whether it was unjustifiable defense; and second, how to make conviction and impose a sentence. 本案在法律适用方面的争议焦点主要有两个方面:一是于欢的捅刺行为性质,即是否具有防卫性、是否属于特殊防卫、是否属于防卫过当;二是如何定罪处罚。
I. The nature of the stab by Yu Huan 一、关于于欢的捅刺行为性质
Paragraph 1, Article 20 of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law") provided: "Criminal responsibility is not to be borne for an act of perfect defense that is undertaken to stop present unlawful infringement of the state's and public interest or the rights of the person, property or other rights of the actor or of other people and that causes harm to the unlawful infringer." It follows that justifiable defense must meet all the following five conditions: (1) The cause of defense: the actual existence of the unlawful infringement. "Unlawful infringement" means assault and injury in violation of the law, including both criminal conduct and ordinary illegal conduct; and including both conduct of infringing personal rights and infringing property and other rights. (2) The time of defense: an ongoing unlawful infringement. "Ongoing" means a period from the time when the unlawful infringement begins to that when it ends. In respect of unlawful infringement that has not begun or has ended, defense cannot be exercised, otherwise the defense was inappropriate in terms of timing. (3) The target of defense: the unlawful infringer. The target of perfect defense can only be the unlawful infringer, and defense may not be exercised in respect of a person other than the unlawful infringer. In the case of joint unlawful infringement, the joint infringement was of the nature of entirety, and justifiable defense may be exercised in respect of each co-infringer. (4) The intent of defense: the purpose of stopping unlawful infringement and awareness and will of defense. (5) The limit of defense: not obviously exceeding the necessary limit nor causing material damage. In other words, the conditions for establishing justifiable defense may include objective conditions, subjective conditions, or limit conditions. Objective conditions and subjective conditions were qualitative conditions, establishing the nature and prerequisite of justifiable defense, and conduct not meeting those conditions was not justifiable defense; while limit conditions were quantitative conditions, establishing the requirement and reasonable limit of justifiable defense, and although conduct not meeting those conditions was of the nature of defense, it was unjustifiable defense, instead of justifiable defense. Unjustifiable defense meets the prerequisite of defense and was of the purpose of stopping unlawful infringement. However, as in the course of stopping unlawful infringement, the intensity of defense was not reasonably controlled, obviously exceeds the necessary limit of justifiable defense, and causes the undue consequence of material damage, defense was converted into illegal and criminal conduct detrimental to society. According to the facts established in the case, evidence, and the relevant provisions of China's Criminal Law, the stab by Yu Huan was defensive but was unjustifiable defense. 中华人民共和国刑法》(以下简称《刑法》)第二十条第一款规定:“为了使国家、公共利益、本人或者他人的人身、财产和其他权利免受正在进行的不法侵害,而采取的制止不法侵害的行为,对不法侵害人造成损害的,属于正当防卫,不负刑事责任。”由此可见,成立正当防卫必须同时具备以下五项条件:一是防卫起因,不法侵害现实存在。不法侵害是指违背法律的侵袭和损害,既包括犯罪行为,又包括一般违法行为;既包括侵害人身权利的行为,又包括侵犯财产及其他权利的行为。二是防卫时间,不法侵害正在进行。正在进行是指不法侵害已经开始并且尚未结束的这段时期。对尚未开始或已经结束的不法侵害,不能进行防卫,否则即是防卫不适时。三是防卫对象,即针对不法侵害者本人。正当防卫的对象只能是不法侵害人本人,不能对不法侵害人之外的人实施防卫行为。在共同实施不法侵害的场合,共同侵害具有整体性,可对每一个共同侵害人进行正当防卫。四是防卫意图,出于制止不法侵害的目的,有防卫认识和意志。五是防卫限度,尚未明显超过必要限度造成重大损害。这就是说正当防卫的成立条件包括客观条件、主观条件和限度条件。客观条件和主观条件是定性条件,确定了正当防卫“正”的性质和前提条件,不符合这些条件的不是正当防卫;限度条件是定量条件,确定了正当防卫“当”的要求和合理限度,不符合该条件的虽然仍有防卫性质,但不是正当防卫,属于防卫过当。防卫过当行为具有防卫的前提条件和制止不法侵害的目的,只是在制止不法侵害过程中,没有合理控制防卫行为的强度,明显超过正当防卫必要限度,并造成不应有的重大损害后果,从而转化为有害于社会的违法犯罪行为。根据本案认定的事实、证据和我国刑法有关规定,于欢的捅刺行为虽然具有防卫性,但属于防卫过当。
1. The stab by Yu Huan was defensive: When the case arose, Du B et al. carried out the act of continuously restricting the personal freedom of Yu Huan and Su A, accompanied by the act of insults and shoving and slapping Yu Huan, among others. When the police arrived at the scene, Yu Huan and Su A desired to leave the reception room with the police, but Du B et al. prevented their leave, carried out the act of pushing, pulling, and containing Yu Huan, among others, and made verbal provocation and approached when Yu Huan warned them with a knife, indicating the objective existence and presence of the unlawful infringement necessary for justifiable defense. Yu Huan made stabs with the knife when his personal freedom was illegally infringed and his personal safety was under real threat, and the stabbed were all the persons who approached him despite of his warning. Therefore, the stab might be determined to be conduct of stopping unlawful infringement performed by him to free himself and his mother of the present unlawful infringement, meet the objective and subjective conditions for justifiable defense, and be of the nature of defense. 首先,于欢的捅刺行为具有防卫性。案发当时杜某2等人对于欢、苏某持续实施着限制人身自由的非法拘禁行为,并伴有侮辱人格和对于欢推搡、拍打等行为;民警到达现场后,于欢和苏某想随民警走出接待室时,杜某2等人阻止二人离开,并对于欢实施推拉、围堵等行为,在于欢持刀警告时仍出言挑衅并逼近,实施正当防卫所要求的不法侵害客观存在并正在进行;于欢是在人身自由受到违法侵害、人身安全面临现实威胁的情况下持刀捅刺,且捅刺的对象都是在其警告后仍向其靠近围逼的人。因此,可以认定其是为了使本人和其母亲的人身权利免受正在进行的不法侵害,而采取的制止不法侵害行为,具备正当防卫的客观和主观条件,具有防卫性质。
2. The stab by Yu Huan was not special justifiable defense: Paragraph 3, Article 20 of the Criminal Law provided: "Criminal responsibility is not to be borne for a defensive act undertaken against present physical assault, murder, robbery, rape, kidnap, and other violent crimes that seriously endanger personal safety that causes injury or death to the unlawful infringer since such an act is not an excessive defense." According to the provisions, the prerequisite of the application of special justifiable defense was the existence of violent crime that seriously endangers the personal safety of a person himself/herself or another. In this case, although Du B et al. did the act of infringing the person of Yu Huan and his mother, such as illegal restriction of personal freedom, insults, and minor beatings, that unlawful infringement was not violent crime that seriously endangered personal safety. (1) The illegal restriction of personal freedom, insults, and other acts of unlawful infringement done by Du B et al. were infringement of the lawful interests of Yu Huan and his mother, such as personal freedom and dignity, but were not of the nature of seriously endangering the personal safety of Yu Huan and his mother. (2) Though pressing in the shoulder, pulling, pushing, and other acts of compulsion or beating by Du B et al. were infringement of the personal safety and physical health rights of Yu Huan and his mother, the unlawful infringement was minor violent infringement, which was neither unlawful infringement of the survival right nor serious infringement of the physical health rights of Yu Huan and his mother, and thus was not violent crime that seriously endangered personal safety. (3) Su A and Yu A took the initiative to borrow money from Wu A through coordination and guarantee of another person and voluntarily accepted the 10% monthly interest rate proposed by Wu A. There was no fact that Su A and Yu A were forced to borrow from Wu A at a high interest rate nor that Wu A forced Su A and Yu A to borrow, which was conspicuously inconsistent with provisions of judicial interpretations that the acquisition of the property of a person by means of violence or duress shall be deemed and punished as robbery. It may follow that the various unlawful infringement carried out by Du B et al. might be the prerequisite for ordinary defense, instead of special justifiable defense, and thus the stab by Yu Huan was not special justifiable defense. 其次,于欢的捅刺行为不属于特殊防卫。《刑法》二十条第三款规定:“对正在进行行凶、杀人、抢劫、强奸、绑架以及其他严重危及人身安全的暴力犯罪,采取防卫行为,造成不法侵害人伤亡的,不属于防卫过当,不负刑事责任。”根据这一规定,特殊防卫的适用前提条件是存在严重危及本人或他人人身安全的暴力犯罪。本案中,虽然杜某2等人对于欢母子实施了非法限制人身自由、侮辱、轻微殴打等人身侵害行为,但这些不法侵害不是严重危及人身安全的暴力犯罪。其一,杜某2等人实施的非法限制人身自由、侮辱等不法侵害行为,虽然侵犯了于欢母子的人身自由、人格尊严等合法权益,但并不具有严重危及于欢母子人身安全的性质;其二,杜某2等人按肩膀、推拉等强制或者殴打行为,虽然让于欢母子的人身安全、身体健康权遭受了侵害,但这种不法侵害只是轻微的暴力侵犯,既不是针对生命权的不法侵害,又不是发生严重侵害于欢母子身体健康权的情形,因而不属于严重危及人身安全的暴力犯罪。其三,苏某、于某1系主动通过他人协调、担保,向吴某借贷,自愿接受吴某所提10%的月息。既不存在苏某、于某1被强迫向吴某高息借贷的事实,又不存在吴某强迫苏某、于某1借贷的事实,与司法解释以借贷为名采用暴力、胁迫手段获取他人财物以抢劫罪论处的规定明显不符。可见杜某2等人实施的多种不法侵害行为,符合可以实施一般防卫行为的前提条件,但不具备实施特殊防卫的前提条件,故于欢的捅刺行为不属于特殊防卫。
(3) The stab by Yu Huan was unjustifiable defense. Paragraph 2, Article 20 of the Criminal Law provided: "Criminal responsibility shall be borne where justifiable defense noticeably exceeds the necessary limits and causes great harm. However, consideration shall be given to imposing a mitigated punishment or to granting exemption from punishment." For the purposes of the Article, "unjustifiable defense" means defense which noticeably exceeds the necessary limits and excessively results in serious injury or death to a person when the objective and subjective prerequisites are met. When determining whether the defense was unjustifiable, it shall be comprehensively analyzed and taken into account the nature, means, intensity, and harm of unlawful infringement and the nature, timing, means, intensity, environment, harm consequence, and other circumstances of defense. In this case, although there were more persons on the side of Du B, they carried out unlawful infringement with the intent to put pressure on Su A and her husband and to collect debts, and in the course of collecting debts, no equipment was carried or used; before police officer Zhu A et al. came into the reception room, the party of Du B carried out acts against Yu Huan and his mother, such as illegal restriction of personal freedom, insults, and slapping across the face and grasping the hair of Yu Huan, and their purpose was still to force Su A and her husband to repay the debt as soon as possible; when the police entered the reception room, both parties had no heated confrontation or physical contact, and when the police warned them against fighting, the party of Du B had no words or acts relating to fighting; when the police went out of the reception room to look for the reporter, Yu Huan and the debt collectors both could clearly see through the glass of the reception room the police car's emergency lights flashing, they should have known that the police did not leave; and when Yu Huan held a knife and warned against their approaching, Du B et al. did not do intensive aggressive acts though they made verbal provocation. Thus, the unlawful infringement faced by Yu Huan was neither imminent nor serious, but he successively stabbed four persons with a single-blade knife with a blade 15.3 cm long, leaving one dead, two seriously injured, and one slightly injured, including one stabbed in the back. For that reason, it shall be determined that the defense by Yu Huan obviously exceeded the necessary limits, caused serious damage, and was unjustifiable defense. 最后,于欢的捅刺行为属于防卫过当。《刑法》二十条第二款规定:“正当防卫明显超过必要限度造成重大损害的,应当负刑事责任,但是应当减轻或者免除处罚。”由此可见,防卫过当是在具备正当防卫客观和主观前提条件下,防卫反击明显超越必要限度,并造成致人重伤或死亡的过当结果。认定防卫是否“明显超过必要限度”,应当从不法侵害的性质、手段、强度、危害程度,以及防卫行为的性质、时机、手段、强度、所处环境和损害后果等方面综合分析判定。本案中,杜某2一方虽然人数较多,但其实施不法侵害的意图是给苏某夫妇施加压力以催讨债务,在催债过程中未携带、使用任何器械;在民警朱某等进入接待室前,杜某2一方对于欢母子实施的是非法限制人身自由、侮辱和对于欢拍打面颊、揪抓头发等行为,其目的仍是逼迫苏某夫妇尽快还款;在民警进入接待室时,双方没有发生激烈对峙和肢体冲突,当民警警告不能打架后,杜某2一方并无打架的言行;在民警走出接待室寻找报警人期间,于欢和讨债人员均可透过接待室玻璃清晰看见停在院内的警车警灯闪烁,应当知道民警并未离开;在于欢持刀警告不要逼过来时,杜某2等人虽有出言挑衅并向于欢围逼的行为,但并未实施强烈的攻击行为。因此,于欢面临的不法侵害并不紧迫和严重,而其却持刃长15.3厘米的单刃尖刀连续捅刺四人,致一人死亡、二人重伤、一人轻伤,且其中一人系被背后捅伤,故应当认定于欢的防卫行为明显超过必要限度造成重大损害,属于防卫过当。
II. Conviction and sentencing 二、关于定罪量刑
1. Conviction. In this case, Yu Huan stabbed four persons successively, who were all those who surrounded him at the time, and did not stab the other unlawful infringers farther away from him. He stabbed each unlawful infringer once instead of several times. It may follow that as Yu Huan's purpose was to stop unlawful infringement and leave the reception room, and the evidence in the case could not prove that he had the intention to pursue or permit the result of the death, the conduct of Yu Huan did not constitute intentional homicide; provided that he had an attitude of permitting the unjustifiable results of multiple casualties in order to seek the realization of the effect of defense, he was guilty of intentional homicide in the case of unjustifiable defense. It was not only the requirement of strict justice but also in conformity with the public concept of equity and justice to determine that the conduct of Yu Huan constituted intentional injury. 首先,关于定罪。本案中,于欢连续捅刺四人,但捅刺对象都是当时围逼在其身边的人,未对离其较远的其他不法侵害人进行捅刺,对不法侵害人每人捅刺一刀,未对同一不法侵害人连续捅刺。可见,于欢的目的在于制止不法侵害并离开接待室,在案证据不能证实其具有追求或放任致人死亡危害结果发生的故意,故于欢的行为不构成故意杀人罪,但他为了追求防卫效果的实现,对致多人伤亡的过当结果的发生持听之任之的态度,已构成防卫过当情形下的故意伤害罪。认定于欢的行为构成故意伤害罪,既是严格司法的要求,又符合人民群众的公平正义观念。
2. Sentencing. Paragraph 2, Article 20 of the Criminal Law provided: "Criminal responsibility shall be borne where justifiable defense noticeably exceeds the necessary limits and causes great harm. However, consideration shall be given to imposing a mitigated punishment or to granting exemption from punishment." In consideration of the nature, means, intensity, cause, consequences of damage, unjustifiable degree, environment, and other circumstances of the defense of interests in this case, Yu Huan shall be punished in a mitigated manner.
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 其次,关于量刑。《刑法》二十条第二款规定:“正当防卫明显超过必要限度造成重大损害的,应当负刑事责任,但是应当减轻或者免除处罚。”综合考虑本案防卫权益的性质、防卫方法、防卫强度、防卫起因、损害后果、过当程度、所处环境等情节,对于欢应当减轻处罚。
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