Research On The Qualification Of "Punishing Intentional Homicide For Causing Death" In Criminal Law

There are 5 articles in our country’s Criminal Law that contain provisions for "intentional homicide" in cases of "causing death".The relevant articles mainly include Article 247 of the Criminal Law for forced confession by torture,the latter part of the crime of taking evidence by violence,the latter part of the first paragraph of Article 248 for abusing detainees,the latter part of the second paragraph of Article238 for illegal detention,the second paragraph of Article 292 for assembling a crowd to fight,and the first part of Article 289.Since the Criminal Law does not explicitly specify whether the subjective element that distinguishes this crime from another crime is intent or negligence,the theoretical circles of criminal law have different opinions,ultimately resulting in the opposition between the doctrine of legislative drafting and the doctrine of attention standard.Scholars who support the doctrine of legislative drafting argue that even if the subjective fault of the perpetrator is due to negligence,as long as the objective result of causing the victim’s death is achieved,he/she shall be convicted and punished for intentional homicide.Scholars who support the doctrine of attention standard believe that the "causing death" clause is essentially a standard of care,and intentional homicide shall only be established when all elements of intentional homicide are met.The subjective fault of the perpetrator cannot be identified as intentional homicide when there is negligence regarding the death result.The debates between the two schools of thought have lasted for more than 20 years and still cannot reach a unified conclusion.Taking the later part of the second paragraph of Article 238 of death causing by the use of violence in illegal detention,Article 247 of forced confession by torture causing death,and the second paragraph of Article 292 of assembling a crowd to fight causing death as an example,190 sample cases in trial practice were examined and analyzed.It is found that the rule of caution is adopted in practice,and the criminal negligence is not recognized as criminal intent.Most courts will comprehensively judge the content of the actor’s subjective guilt based on the evidence in the case.Only the actor’s subjective The crime of intentional homicide will only be determined when there is indeed an intention to kill.It can be seen that the limitation of practice on the theory of legal fiction applies.Through the analysis of legal fiction clauses,there are three characteristics of legal fiction clauses: the difference of fictional facts,the equivalence of infringement of legal interests,and the non-universality of fiction,while the "death" clause does not meet these characteristics.When trying to interpret a certain criminal law provision as a legal fiction,we should not only look at the similarity in form,but also follow the principle of legally prescribed crimes and punishments,the principle of consistency between subjectivity and objectivity,and the principle of adapting crimes and punishments,and avoid blindly considering only objective legal interests The death result of the infringement,while ignoring the difference in the subjective guilt of the perpetrator.That is to say,it is not correct to formulate a negligent crime as an intentional crime according to legal fiction,and it will impose heavy sentences on a small number of defendants who should have been given light sentences.The interpretation of the "death" clause should follow the reasonable practice of trial practice,and to the greatest extent,be based on the principle of consistency between subjectivity and objectivity,and respond in good faith in accordance with the provisions of attention.This approach is also in line with the legislative intent of reducing the death penalty.fit.When applying the "death" clause,the perpetrator has at least the intention to injure in the subjective guilt.At this time,the "causing death" clause conforms to the characteristics of reaffirming the basic content and prompting function of the attention regulation clause.In terms of specific application: First,the perpetrator subjectively hopes or allows the victim’s death to occur,and establishes the basic crime and the imaginary concurrent crime of intentional homicide.From a serious crime,it is determined as the crime of intentional homicide.Meet the constituent elements of the crime of intentional homicide.Second,if the perpetrator subjectively has the intention to injure,but is negligent in causing the death result,the basic crime and the imaginary concurrent crime with the crime of intentional injury(causing death)shall be established,and shall be deemed as intentional injury(causing human death)crime.