Lawyer of Beijing Normal University: Yao Jiaxin should not be sentenced to death, but should be sentenced to death immediately.

On April 22, 20 1 1, the defendant Yao Jiaxin was convicted of intentional homicide, sentenced to death and deprived of political rights for life. The court held that the defendant Yao Jiaxin surrendered to the public security organ accompanied by his parents and truthfully confessed the facts of the crime, which was a surrender. Yao Jiaxin's killing after a traffic accident is not a passionate killing. After Yao Jiaxin hit the victim Zhang Miao with his car, he killed him instead of rescuing him. The criminal motive is extremely despicable, the subjective malignancy is extremely deep, the means are particularly cruel, the circumstances are particularly bad, and the consequences are particularly serious. This is an extremely serious crime and should be punished according to law. Although he has surrendered himself, it is still not enough to be given a lighter punishment, so the above judgment is made according to law.

The first paragraph of Article 67 of China's Criminal Law stipulates that criminals who surrender themselves may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be exempted. However, whether it is lighter, mitigated or exempted from punishment cannot be generalized. The first paragraph of Article 17 of Several Opinions on Implementing the Criminal Policy of Tempering Justice with Leniency, which was formulated by the Supreme People's Court on February 8, 20 10, stipulates that the defendant who surrenders shall generally be given a lenient punishment according to law, except for those who commit a particularly serious crime, are extremely vicious subjectively, are extremely dangerous, or maliciously use his surrender to evade legal sanctions.

That is to say, the defendant who has surrendered himself should generally be given a lighter punishment, but there are two exceptions. Even if he has surrendered himself, he cannot be given a lighter punishment: the first is that the criminal circumstances are particularly serious, the subjective malignancy is particularly deep, and the personal danger is particularly great; Second, malicious use of surrender to escape legal sanctions.

I think Yao Jiaxin's case is an ordinary criminal case. One of the important reasons why people all over the country pay attention to it is the media hype. In pursuit of popularity, the media caught some words that attracted everyone's attention and began to identify Yao Jiaxin as a rich second generation and an official second generation. Finally, they found that this is not a family that is either rich or expensive. Finally, they caught the lack of ideological and moral education in universities, and everyone guessed that the young man's crime was not the lack of education.

Therefore, in my opinion, this case is also an ordinary criminal case. The reason why the attention is so high is actually contributed by the media. The judge was immediately sentenced to death because he was kidnapped by public opinion.

Subjectively, the murderer is not extremely vicious, and the means are particularly cruel, the circumstances are particularly bad, and the consequences are particularly serious. But why can other murderers be sentenced to death with a reprieve, while Yao Jiaxin can be sentenced to death? I don't think so. Yao Jiaxin has surrendered himself, and according to common sense, he should be sentenced to a suspended execution.

Why was he sentenced to death and executed immediately? I think the judge was kidnapped by public opinion. When the Intermediate People's Court of Xi tried Yao Jiaxin's case, it gave each of the 500 observers a Feedback Form for Observers of Audit Cases. In addition to the list of collegiate bench members in the trial, there are two questions on the questionnaire: What kind of punishment do you think Yao Jiaxin should receive? What specific practices and suggestions do you have for the audit of the trial of the case?

In other words, the judges of Xi 'an Intermediate People's Court fully considered public opinion when hearing the case, for fear that the judgment would arouse public anger and push themselves to the forefront. But judges should be loyal to facts and laws, not to the concerns and likes and dislikes of the broad masses of the people. So I said that the sentence in this case could have been suspended. Because the judge was kidnapped by public opinion and lost the ability to try independently according to law, he had to obey public opinion and sentenced Yao Jiaxin to death.

Public opinion is sometimes divorced from the law, that is, reasonable but not necessarily legal. Law and reason are not completely unified, sometimes they are two different things. Public opinion comes from harmony, from the media, whether the reporting profession of media reporters must be realistic, whether the reporters have read the case files and met the criminal suspects, so media reports are sometimes not necessarily accurate. But the broad masses of the people generally believe in the media. In this way, there is strong public pressure, and the judge has to give in.

Therefore, according to my experience and understanding, I think Yao Jiaxin should not be sentenced to death immediately, but at most should be sentenced to death with a reprieve.

◆ There is a murder case here, and both of them were sentenced to death in the second instance, and all of them were found to have surrendered themselves. Finally, the Supreme Court ruled that the death penalty was not approved at the review stage of the death penalty, and sent back a case, reiterating that the death penalty was commuted to a suspended sentence. Just like the case of Yao Jiaxin.

The case of Zheng's murder of deputy director in Suixi, Guangdong Province was retried and the death was suspended.

Xuanxiong, the former director of Suixi Ocean and Fisheries Bureau, killed the deputy director four years ago and was sentenced to death in the first instance and the second instance.

Four years ago, Xuanxiong, then the director of the Bureau of Ocean and Fisheries of Suixi County, Guangdong Province, killed the deputy director in his office. After the first and second trials, Xuan Xiong was sentenced to death. However, after reviewing the death penalty in this case last year, the Supreme People's Court thought that Xuanxiong had surrendered himself and sent the case back for retrial. The reporter learned yesterday that Xuan Xiong had been sentenced to death by the Guangdong Provincial High Court a few days ago, with a two-year suspension.

Killed the deputy director in the director's office

Xuan Xiong has been the director of Suixi Ocean and Fisheries Bureau since July 1998. From June, 5438 to February, 2006, Xuanxiong heard that Chen Zhenhua, the deputy director, was going to succeed him as the director, thinking that Chen Zhenhua had robbed his position, so he was dissatisfied and had the idea of killing Chen Zhenhua.

At 9 o'clock in the morning on June 3, 2007, Xuanxiong saw Chen Zhenhua on duty in the office, so he took out a wrench and hid it in his body and entered Chen Zhenhua's office. Chen Zhenhua banged Chen Zhenhua on the head with a wrench. After Chen Zhenhua fell to the ground, he repeatedly hit Chen Zhenhua's head and face with a wrench, making him unable to move, and then cut off the blood vessels in Chen Zhenhua's hands and wrists with a paper knife. Subsequently, Xuan Xiong wrapped the paper cutter and wrench in a newspaper and left the scene.

On the morning of the same day 10, 5 1, Xuan Xiong, accompanied by his relatives, went to Suicheng police station and surrendered himself.

Both the first and second trials were sentenced to death.

This case has aroused widespread concern in society. In the first trial, the Institute of Psychiatric Judicial Appraisal of Zhanjiang Third People's Hospital identified that Xuanxiong had suffered from mild depression, but he was not in the onset of depression when he committed the crime in this case, and his ability to identify and control was not significantly weakened when he committed the crime. He was assessed as having full criminal responsibility.

On June 5438+February 65438+July 2007, Zhanjiang Intermediate People's Court made a first-instance judgment on the case. The court held that Xuan Xiong's behavior constituted the crime of intentional homicide. He surrendered himself after committing the crime and truthfully confessed his crime. However, Xuan Xiong's motive for committing the crime is despicable, his means of committing the crime are extremely cruel, and the circumstances and consequences are particularly serious. Although there is a plot to surrender, it is not enough to give him a lighter punishment. Xuan Xiong was sentenced to death in the first instance.

In the second trial of the case, the Guangdong Institute of Mental Health issued an appraisal that Xuanxiong was in a stage of mild depression at the time of the incident and his social function was slightly damaged, but this was not a serious mental disorder and Xuanxiong was fully responsible. On September 4, 2009, the Guangdong Provincial High Court upheld the original judgment in the second instance.

Reasons for lighter punishment: surrender

After the judgment of the second instance came into effect, Xuanxiong's case was reported to the Supreme People's Court for death penalty review. During the review of the death penalty, Sun Zhongwei, a Beijing lawyer known as "the first defender of China's death penalty", served as the defender of Xuanxiong.

Sun Zhongwei believes that case motivation is the key. Sun Zhongwei wrote in the opinion of the death penalty review lawyer submitted to the Supreme Court: "According to common sense, it is impossible for the defendant to kill the victim because he is about to take over his post, which is not in line with the logic of China officialdom."

The Supreme People's Court believes that the defendant Xuanxiong intentionally and illegally deprived others of their lives, and his behavior has constituted the crime of intentional homicide. Xuanxiong's criminal means are cruel and the consequences are serious, so he should be punished according to law. After committing the crime, Xuanxiong surrendered himself with the advice and company of his relatives. According to the law, a lighter punishment may be given, and the death penalty may be executed immediately without being sentenced. Ruled not to approve or revoke the criminal ruling of Guangdong Higher People's Court upholding the death sentence of the defendant Xuanxiong by the court of first instance for intentional homicide, and sent it back for retrial.

A few days ago, the Guangdong Higher People's Court held that "in view of the fact that Xuanxiong was able to surrender himself under the persuasion and accompaniment of his relatives, he could be given a lighter punishment according to law and not executed immediately". In the end, Xuan Xiong was sentenced to death with a two-year suspension for committing intentional homicide.

Yao Jiaxin will not be sentenced to death.

20 11April 01Source: France. Com- Fabang Comments Author: Wan Lawyer, let me say a few words (82 people participated)

-Lawyers analyze the conviction and sentencing of Yao Jiaxin's intentional homicide case.

After Yao Jiaxin's intentional homicide, major media rushed to report, and a stone stirred up a thousand waves, which attracted a lot of people's attention. The "rich second generation" and "official second generation" have become the target of public criticism. This reflects some social phenomena and is really worth thinking about. Netizens and the media basically agree that Yao Jiaxin's intentional homicide is "inhuman" and "sinful", and his crimes are unforgivable, so he should win the hearts of the people by killing people. But from a legal point of view, this lawyer believes that if the media reports are true, then Yao Jiaxin should not be sentenced to death.

Intellectually speaking, Yao Jiaxin deserved to die, but legally speaking, he was not sentenced to death in this case. I may hurt the feelings of netizens by saying this, and I apologize here. However, it should be noted that the court is based on facts and takes the law as the criterion. In this case, there are a variety of statutory or discretionary lighter punishment circumstances. Although Yao Jiaxin stabbed eight times in a row and died, he will not be sentenced to death.

First, in this case, Yao Jiaxin has surrendered himself, which is a lighter or mitigated circumstance stipulated by law.

According to media reports, on the evening of 10/0/20, Yao Jiaxin was controlled by the traffic police for the second time, but he did not account for the fact that he had injured and stabbed Zhang before. 65438+1October 2 1, when the Guodu police station found Yao Jiaxin again to investigate the accident that night, Yao Jiaxin once again concealed the fact of the first accident; Until 10 year123 October, Yao Jiaxin, accompanied by his parents, confessed to the fact that he killed someone after hitting others in the public security organs. This shows that the public security organs did not grasp the criminal facts of Yao Jiaxin's intentional homicide from the beginning, and they did not understand the criminal facts of Yao Jiaxin's intentional homicide. If the public security organ knew that the victim Alina Zhang had been injured by Yao Jiaxin or was suspected of committing a major crime, it should have taken corresponding compulsory measures against Yao Jiaxin long ago. It was impossible to go home and tell his parents that he had hit someone, so that he could finally surrender himself to the public security organ accompanied by his parents. Judging from this fact, according to Article 67 of the Criminal Law of People's Republic of China (PRC) and Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in Handling Voluntary Surrender and Meritorious Service Cases, Yao Jiaxin's behavior conforms to the provisions of the Voluntary Surrender Law and can be given a lighter or mitigated punishment within the statutory penalty range. Article 232 of China's criminal law stipulates that whoever intentionally kills shall be sentenced to death, life imprisonment or fixed-term imprisonment of more than 10 years; If the circumstances are relatively minor, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Therefore, the court will not sentence Yao Jiaxin to death, because the law is relatively light and not too serious. Annex (1) Article 67 of the Criminal Law of People's Republic of China (PRC) * * * A person who voluntarily surrenders after committing a crime and truthfully confesses his crime is a voluntary surrender. Criminals who surrender themselves may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be exempted.

If a criminal suspect, defendant or criminal serving a sentence who has taken compulsory measures truthfully confesses other crimes that have not been mastered by the judicial organs, he shall be deemed to have surrendered himself. 2. the Supreme People's Court's Interpretation of Several Issues Concerning the Specific Application of Law in Handling Cases of Surrender and Meritorious Service Article 1 According to the provisions of the first paragraph of Article 67 of the Criminal Law, a person who voluntarily surrenders after committing a crime and truthfully confesses his crime belongs to surrender.

(1) Surrender refers to voluntarily surrendering directly to the public security organ, the people's procuratorate or the people's court when the judicial organs have not discovered the criminal facts or suspects, or have not interrogated the suspects or taken compulsory measures.

The criminal suspect surrenders himself to his unit, urban and rural grassroots organizations or other relevant responsible personnel; Due to illness, injury or in order to mitigate the consequences of the crime, the criminal suspect entrusts others to surrender first, or surrenders himself by telegram; Criminal acts have not been discovered by judicial organs, but they voluntarily confess their crimes after interrogation and education by relevant organizations or judicial organs; Escaping after committing a crime and voluntarily surrendering himself in the process of being wanted and pursued; Those who are prepared to surrender after verification, or who are arrested by the public security organs on the way to surrender, shall be deemed to surrender.

Not out of the initiative of the criminal suspect, but persuaded and accompanied by relatives and friends to surrender; If the public security organ notifies the relatives and friends of the criminal suspect, or after the relatives and friends take the initiative to report the case, it shall also be regarded as surrender.

If a criminal suspect escapes after voluntarily surrendering, it cannot be considered as surrender.

(2) Truthfully confessing one's crimes means that a criminal suspect truthfully confesses his main criminal facts after voluntarily surrendering himself.

If a criminal suspect who is punished for several crimes only truthfully confesses part of the crimes committed, only the act of truthfully confessing part of the crimes will be considered as surrender.

* * * In an accomplice case, the criminal suspect should truthfully confess his crime and his known accomplice, and the principal offender should confess his known accomplice facts before he can be considered as surrender.

If a criminal suspect voluntarily surrenders himself and truthfully confesses his crime and then recants, it cannot be considered as surrender; However, those who can truthfully confess before the judgment of the first instance shall be deemed to have surrendered themselves. )

Second, Yao Jiaxin's parents have the ability to compensate. If they can compensate the victim's family so that they can get corresponding compensation, it is also a legitimate reason to reduce the punishment.

According to media reports, Yao Jiaxin's family is well-off, and his father is the military representative (political commissar) of the Xi Army Agency of the General Logistics Department. In other words, Yao Jiaxin's parents have enough ability to compensate the families of the victims. Of course, in order to save the child, Yao Jiaxin's parents will also pay all the compensation to the families of the victims and strive for their understanding. If the two parties can reach an agreement on civil compensation before the court decides, the court will also consider these circumstances and give a lighter or mitigated treatment as appropriate. This is not what people often say, "spending money to buy punishment", nor is it a mercy outside the law, but it has a legal basis. Article 4 of the Supreme People's Court's Provisions on the Scope of Criminal Incidental Civil Proceedings, which was implemented from June 5438 to February 65438 to September 2000, stipulates that if the defendant compensates the victim for material losses, the people's court may consider it as a sentencing circumstance. Article 23 of "Several Opinions of the Supreme People's Court on Implementing the Criminal Policy of Tempering Justice with Leniency" newly released on February 8 this year stipulates that if the defendant actively compensates the victim after committing a crime and shows confession and repentance, it can be considered as a discretionary sentencing circumstance according to law.

Third, Yao Jiaxin usually behaves well and has no criminal record. He is a first-time offender and an occasional offender. Besides, he has a good attitude towards confession and repentance. The court will also consider these situations when convicting and sentencing, and handle them lightly as appropriate.

According to media reports, the reporter met a classmate of Yao Jiaxin's major. The classmate said that Yao Jiaxin studied very well. "In my eyes, he belongs to that kind of excellent introverted student ..." The classmate said. According to Mr. Ji, Yao Jiaxin's counselor, Yao Jiaxin studied very well at school and won a second-class scholarship of 1000 yuan in the first school year. Teacher Ji said that there are 87 students in Yao Jiaxin's class, and they can get scholarships, and their grades must be at least in the top ten. "Yao Jiaxin usually performs very well and is very introverted. He never had conflicts and squabbles with his classmates. " For Yao Jiaxin's behavior, Mr. Ji said that he felt both sad and sorry. Yao Jiaxin's piano level has reached 10, and there are several piano tutors outside the school, each class costs 60 to 100 yuan. If Yao Jiaxin's classmates and teachers provide witness testimony to the court, the school can issue a certificate to prove that Yao Jiaxin's usual behavior and good performance will also affect the judge's judgment, and judges will generally consider this discretionary plot when trying cases; In addition, according to media reports, Yao Jiaxin's hair turned white overnight in the detention center, which also showed that he regretted it very much and was very painful to the victim, which determined his attitude in the whole case. Therefore, I will definitely apologize to the relevant departments such as the Public Prosecution Law and express my deep apologies. In addition, judges will generally consider these situations when they are convicted and sentenced, and impose a lighter sentence as appropriate.

To sum up, this case has at least these circumstances that can be lightened or mitigated. Therefore, the court's decision will not be as expected by netizens. On the contrary, it may be sentenced to life imprisonment or even fixed-term imprisonment.

Disclaimer: This lawyer did not accept the entrustment of Yao Jiaxin and his family and did not touch the case file. The specific situation is unknown, and the above conclusions are only based on media reports and legal provisions. This conclusion is not necessarily the final conclusion, but the lawyer's own opinion. As for the future direction of the case, we can only wait and see.

Author: Wan Lawyer, lawyer of Beijing Zhongqi Law Firm.