"The facts of this case have been investigated, the court investigation has been completed, and the court arguments are now begining. Court debates revolve around disputed facts that have not been certified by the court and how the law should be applied based on the facts.

The prosecutor will speak first. The presiding judge said.

“…… Defendant Dou Tao arbitrarily assaulted others with a murder weapon, the circumstances were heinous, and his conduct constituted the crime of picking quarrels and provoking trouble, and should be punished in accordance with law. Whereas, he truthfully confessed his crime after being brought into the case, and he actively compensated the victim's economic losses, and obtained the victim's forgiveness.

We recommend that the defendant Dou Tao be placed under surveillance for two years. After the prosecutor finished speaking, he looked at the defendant's dock and said secretly: Since you don't accept the suspended sentence, let's change the control.

(Article 38 of the Criminal Law stipulates that the period of supervision shall be between three months and two years.)

Sentencing to controlled release may, on the basis of the circumstances of the crime, prohibit criminals from engaging in specific activities, entering specific areas or venues, and contacting specific people during the enforcement period.

Community corrections are to be carried out in accordance with law for criminals sentenced to controlled release.

Those who violate the prohibition orders provided for in the second paragraph are to be punished by the public security organs in accordance with the provisions of the "Law of the People's Republic of China on Public Security Administration Punishments". ）

"Defendant Dou Tao defended himself." The presiding judge said.

"I don't think my actions constitute the crime of picking quarrels and provoking trouble......," Dou Tao said, pleading not guilty.

"Defendant Dou Tao's defender expresses his defense opinions." The presiding judge said.

"Presiding Judge and Judge: The defender believes that defendant Dou Tao's conduct does not constitute the crime of picking quarrels and provoking trouble, for the following specific reasons:

In this case, the defendant Dou Tao contracted the wasteland in the village to plant fruit trees, and after the expiration of the contract, he enjoyed the right of first refusal under the same conditions as agreed in the contract, and the village committee should not take back his land for another lease if he did not expressly waive the right to contract.

According to the evidence provided by the prosecutor in this case, Dou Tao took the initiative to pay rent to the village committee on several occasions, but the staff of the village committee refused for various reasons, resulting in Dou Tao not renewing the rent.

Even if the village committee needs to reclaim the land, it should negotiate compensation for the fruit trees and other above-ground objects planted by Dou Tao.

After the case was discovered, the subsequent contractor of the land voluntarily compensated Dou Tao for the fruit trees and above-ground objects planted by Dou Tao, and the compensation was as high as 950,000 yuan, and Zhang Dabao's medical expenses were borne by Zhang Dabao.

After the expiration of the contract, in order to lease the land to others, the village committee deliberately did not collect the rent paid by Dou Tao, and used a simple and crude method to organize more than a dozen people to cut down fruit trees in the orchard, which led to a conflict between the two sides. Therefore, the village committee bears the main fault responsibility for the occurrence of this case.

At the time of the incident, Dou Tao's wife Jiang Xue was brutally controlled by security personnel, and the fruit trees in the orchard were cut down by the other party.

Defendant Dou Tao subjectively does not meet the constitutive elements of the crime of picking quarrels and provoking trouble, such as seeking excitement, venting emotions, acting recklessly and causing trouble without incident, or taking advantage of excuses to cause trouble, so it cannot be found to be "arbitrarily beating others with a murder weapon".

Moreover, in the process of evacuating the orchard sent by the village committee, Dou Tao did not intercept it with a knife, so it cannot be determined that it is a "cause for some reason" type of picking quarrels and provoking trouble.

To sum up, the defender believes that Dou Tao's behavior does not constitute the crime of picking quarrels and provoking trouble. The court is requested to acquit the defendant Dou Tao. Complete! Fang Yi said.

It may be that the prosecution and defense have fully expressed their respective defense opinions, and the presiding judge did not let the prosecution and defense defend each other after Fang Yi finished expressing his defense opinions.

……

"In the case of the defendant Dou Tao who was prosecuted by the county procuratorate for picking quarrels and provoking trouble, the collegial panel held a court trial, conducted a court investigation and court debate, heard the prosecutor's accusations, the defendant's opinions, the defendant's defenses, statements, and the defender's defense opinions, and the court trial ended.

The court will now adjourn for 10 minutes, and the collegial panel will announce the verdict in court after deliberation. After the presiding judge rang the gavel, the members of the collegial panel withdrew from the courtroom.

……

Twenty minutes later, Jiang Xue sat in the auditorium, a little distracted. The sound of the presiding judge reading out the verdict kept ringing in her ears.

The court held that the defendant Dou Tao arbitrarily assaulted others, the circumstances were heinous, and his conduct constituted the crime of picking quarrels and provoking trouble, and should be punished in accordance with law. In view of the fact that it has mitigating circumstances in accordance with the law. In accordance with the provisions of Article 293, Paragraph 1, Item 1 of the Criminal Law of the People's Republic of China, it is decided that the defendant Dou Tao is guilty of picking quarrels and provoking trouble, and is sentenced to one year and six months of controlled release.

The control was carried out outside of prison and community corrections, so Dou Tao was not imprisoned in a detention center after the verdict was announced.

Zhou Ying, who was sitting next to Fang Yi, felt aggrieved in her heart, in her opinion, Fang Yi's defense was very good, everything was clear, why did the court still sentence like this.

In the past, the court sentenced one year to one year of probation, but now it is directly sentenced to one year and six months of supervision, which is also served outside of prison, and is also supervised by the police station and the community, but the period is a full six months longer, what does this mean?!

But after thinking about it again, she suddenly understood that the sentence of controlled release is calculated from the date of enforcement of the judgment, and if the person is detained before the judgment is enforced, 1 day of detention will be deducted from 2 days of the sentence. Dou Tao has been detained for a period of time before, and after discounting, in fact, the actual period of control is one year, which is equivalent to changing the soup but not the medicine, high, really high!

"Lawyer Fang, this ......" Dou Tao walked to the defense bench and looked at Fang Yi. He was very dissatisfied with the court's decision, which was a matter of great importance to his reputation.

"There is only one way to appeal." Fang Yi said firmly.

The court's verdict surprised him very much, he was sentenced to a suspended sentence, was remanded for retrial by the court of second instance, and now the sentence has been changed to controlled release, which is not a matter of sentencing at all, but a problem of unclear facts and improper conviction.

"Is it possible to appeal? Won't it be remanded for retrial? Jiang Xue walked over, wondering in her heart whether the middle-aged male lawyer in front of her would be framing his own lawyer's fees, and her eyes flashed with distrust.

"In accordance with article 236 of the Criminal Procedure Law, where the second-instance people's court finds that the facts of the original judgment are unclear or the evidence is insufficient, it may rule to revoke the original judgment and remand to the original people's court for new trial.

Where after the original people's court makes a judgment in a criminal case remanded for new trial, and the defendant submits an appeal, the second-instance trial court shall make a judgment or ruling in accordance with law, and must not remand to the original people's court for new trial.

According to the above provisions, the remand for retrial can only be conducted once, and if Dou Tao appeals, the Intermediate People's Court can only conduct a trial and may not remand for retrial. Fang Yi thought for a moment and explained.

"Then ......" Just when Jiang Xue hesitated, Dou Tao spoke: "Appeal, you can't just leave it at that." ”

"Okay, I'll prepare the appeal petition in the next two days, and after the criminal verdict is issued, I'll submit the appeal petition to the court." Fang Yi said.

"Then the lawyer's fee ......," Jiang Xue asked.

"The lawyer's fee for the second instance is 30,000 yuan, and I will give you a discount." Fang Yi said.

Jiang Xue had the heart to bargain, but Fang Yi had already said that this was a discounted price, and it was not good for her to lower the price again, after all, the second instance still had to rely on others, and she couldn't offend Lawyer Fang.

"Okay, you prepare the contract, I'll ask Jiang Xue to go to you to go through the entrustment procedures in the next few days." Dou Tao is now out of the way, for the sake of his innocence, he is ready to tell to the end.

A few days later, the criminal verdict of the county court was issued, and the day after receiving the criminal verdict, Fang Yi submitted an appeal petition and entrustment procedures to the county court.

After learning that the case file had been transferred to the Intermediate People's Court, Fang Yi took Zhou Ying to the Municipal Procuratorate to communicate the facts of Dou Tao's case, but Prosecutor Wang, who was in charge of the case, did not seem to be interested in Fang Yi's opinion, and Fang Yi and the two returned to the law firm after leaving a lawyer's opinion.

After lunch, Fang Yi and Zhou Ying returned to the office and sat opposite each other. Zhou Ying chatted: "Lawyer Fang, do you say that there is hope for the second instance of this case?" ”

"There's always hope, but it's not always easy to achieve. Now we can only hope for the judge of the second instance. This is called doing everything possible to obey the destiny of heaven. Luck is the hardest thing to fathom and the most magical.

Why ......, discouraged? Fang Yi looked at her.

"No, I just felt a little uncomfortable in my heart, and I lost the first case." Zhou Ying pouted.

Fang Yi smiled: "You are only half right, we only lost the first instance, and there is hope for a comeback in the second instance." Have a strong belief, belief is also a kind of power, sometimes it can affect your behavior, and then affect the outcome. ”

That being said, in fact, Fang Yi didn't have a bottom in his heart.

"Really? I feel much more comfortable when you say that. I'm going to look into the case now and prepare for the second trial. Zhou Ying's eyes lit up.

"By the way, I have a meeting at the detention center tomorrow morning, do you want to go?" Fang Yi said with a smile.

"Go, I haven't been to the detention center yet, let's go see with you." Zhou Ying said with a smile.

Half a month later, the second-instance trial of Dou Tao's case of picking quarrels and provoking troubles began. Jiang Xue was the only one in the auditorium.

Fang Yi and Zhou Ying sat on the defense bench and listened to the judge sitting above read the first-instance verdict. In the prosecutor's seat, the two male prosecutors were writing something, and the first one sitting in the first place was Prosecutor Wang, whom Fang Yi had seen before.

"Next, the appellant Dou Tao will read out the appeal first." The presiding judge said with confidence.

Dou Tao, who was sitting in the defendant's seat, took out the appeal petition and read it according to the script.

"The appellant's defence counsel issues grounds of appeal." After the presiding judge finished speaking, he looked at Fang Yi.

"Presiding Judge and Judge: The defender believes that the facts found by the court of first instance are unclear and the application of law is improper, and that the appellant does not constitute the crime of picking quarrels and provoking trouble, and should be found to be justified defense. The grounds of appeal are as follows:

First, the appellant's actions were justified in self-defense.

After the expiration of the appellant's land contract, it negotiated with the village committee on several occasions to renew the land contract and took the initiative to demand the payment of rent, but the village committee rejected the appellant's request for various reasons.

Thereafter, the village committee demanded that the appellant return the land, and sent more than 10 people, including security guards and Zhang Dabao, to the appellant's orchard to forcibly cut down the peach and apple trees that he had worked so hard to plant.

In order to protect her lawful property, the appellant's wife stepped forward to stop the other party's behavior, but was pulled aside by the security guard, ordered to squat, and punched and kicked. Zhang Dabao and others began to cut down fruit trees.

In order to protect his lawful property and the safety of his wife, the appellant brandished a kitchen knife to drive away the security guards, Zhang Dabao and others.

Second, the appellant's conduct did not meet the constitutive elements of the crime of picking quarrels and provoking trouble.

At the material time, the security guards and temporary employees assigned by the village committee broke into the land contracted by the appellant and first injured people and destroyed the property in the orchard.

The appellant subjectively did not have the intent to commit the crime of picking quarrels and provoking troubles, and objectively did not have the fact of picking quarrels and provoking troubles, so it should not be found to constitute the crime of picking quarrels and provoking troubles.

Thirdly, the appellant's conduct was not harmful and should not be pursued for criminal responsibility.

The appellant, Dou Tao, was in possession of the kitchen knife mainly to drive away the security guards who broke into the orchard and Zhang Dabao and others, and in the process, he accidentally injured Zhang Dabao.

After Zhang Dabao was slashed, the appellant did not continue to beat Zhang Dabao, nor did he chase after and intercept the people who had withdrawn, and his actions were not very harmful, and he had already obtained Zhang Dabao's forgiveness, and should not be investigated for criminal responsibility.

In summary, the defender held that the appellant Dou Tao did not constitute the crime of picking quarrels and provoking trouble, and asked the court to change his verdict to not guilty in accordance with the law. Complete. Fang Yi said.

"Appellant Dou Tao, do you have any objections to the facts and charges found in the first-instance verdict?" The presiding judge asked.

"There is an objection, I do not agree with the facts and charges found in the first instance, it was the village committee that sent security guards and Zhang Dabao and others to break into my orchard first, and then they punched and kicked my daughter-in-law and cut down my fruit trees, so I used a kitchen knife to scare them, and I was in self-defense. As for the slashing of Zhang Dabao, it was purely accidental......" Dou Tao defended.

"Next, the prosecutor will question the appellant about the facts ascertained in the first-instance judgment." The presiding judge said.

Procurator Wang's question was not much different from the content of the procurator's question from the county procuratorate in the first instance. Subsequently, Fang Yi also questioned the appellant, and the content of the questions was similar to that of the first trial, and will not be repeated.

"Now that we will present evidence and cross-examine the evidence, do the procurators, defenders, and appellants have any new evidence to submit?" The presiding judge asked.

"Nope." Tripartite equalization.

……

"The court investigation is over, and now the court argument is open. Before the debate, the court draws the attention of the prosecution and the defense to the fact that the debate should mainly focus on the determination of the charge, sentencing and other controversial issues.

First of all, I would like to give the floor to the appellant Dou Tao. The presiding judge said.

"Presiding judge and judge, I think my actions are legitimate defense, not picking quarrels and provoking trouble...... Dou Tao said what is still the content of the appeal.

After asking him if he had any new opinions, the presiding judge decisively terminated his statement.

"Appellant Dou Tao's defender spoke." The presiding judge said.

"Presiding Judge and Judges:

According to Article 20 of the Criminal Law, an act taken to stop an unlawful infringement in order to protect the state, the public interest, the person, property and other rights of the person or others from an ongoing unlawful infringement and causes damage to the wrongdoer shall be regarded as justified self-defense and shall not bear criminal responsibility.

The defender believes that defendant Dou Tao's conduct complies with the above-mentioned legal provisions and should be found to be legitimate defense, and does not constitute the crime of picking quarrels and provoking trouble. Here's why:

1. At the time of the incident, the defendant Dou Tao was facing the reality of unlawful infringement.

1. The purpose of the village committee's forcible resumption of land is not justified.

According to the provisions of the land contract, the appellant Dou Tao enjoyed the right of priority under the same conditions after the expiration of the contract. According to the evidence on record, the village convened a meeting of the two committees and a villagers' congress, and the resumption of the land on the grounds that Dou Tao had not paid the land contract fee, was obviously inconsistent with the facts.

On the premise that the appellant Dou Tao did not expressly waive the right to contract, the village committee took back the land contracted by him and leased it to others, which was for improper purposes.

2. The procedure for the village committee to forcibly recover the land was improper.

The land contract signed between the village committee and the appellant Dou Tao did not stipulate the disposal of the above-ground objects after the expiration of the term, and the village committee issued a certificate that the above-ground objects on the contracted land were the lawful property of the appellant.

If the village committee needs to recover the land, it should negotiate with the appellant Dou Tao on the compensation for the above-ground objects. If the negotiation fails, the parties shall resolve the matter through litigation.

Returning to this case, the village committee did not communicate with the appellant about the compensation of the above-ground objects before recovering the land, nor did it solve the problem through judicial channels, but only informed the appellant in the form of a notice to return the land.

Therefore, the actions of the village committee are illegal and constitute an unlawful infringement.

2. Appellant Dou Tao's defense against the ongoing unlawful infringement is objectively urgent.

The term 'ongoing unlawful infringement' as provided for in Article 20 of the Criminal Law refers to the unlawful infringement that has begun and has not yet ended, and is in the process of being carried out.

In this case, after the temporary employee Zhang Dabao and other personnel broke into the appellant's orchard, they began to cut down the fruit trees.

In this case, the appellant Dou Tao held a kitchen knife to drive the intruder away, and his purpose was to stop the ongoing illegal act and protect the safety of his wife and his family's lawful property.

3. Appellant Dou Tao is subjectively legitimate.

In the theory of criminal law, the perpetrator of justifiable self-defense should have a sense of self-defense. The awareness of defense includes: 1. The perpetrator is aware that the unlawful infringement has occurred and is ongoing; 2. The purpose of the perpetrator is to protect the state, the public interest, the person, property and other rights of himself or others from ongoing unlawful infringement.

In this case, after the expiration of the contract, the appellant, Dou Tao, took the initiative to request the payment of the land contract fee, but the village committee refused for various reasons. When the appellant, Dou Tao, did not expressly waive the right to contract, and the village committee did not negotiate with Dou Tao on the compensation of the fruit trees in the orchard, the village committee sent people to his orchard to cut down the fruit trees, which infringed on Dou Tao's lawful property.

In the face of unlawful infringement, if the appellant Dou Tao did not take defensive measures, his legitimate rights and interests would inevitably suffer huge losses, so Dou Tao's sense of defense was legitimate.

4. Appellant Dou Tao's defensive acts were only directed at the unlawful aggressor.

According to Article 20 of the Criminal Law, legitimate self-defense must be carried out against the wrongdoer who is committing an unlawful offense. The purpose of justifiable defence is to stop an ongoing unlawful offense.

In this case, in order to protect his lawful property, the appellant Dou Tao had to use a kitchen knife to drive away the unlawful infringer who broke into his orchard and forcibly cut down fruit trees, and the victim Zhang Dabao was one of the unlawful infringers.

It can be seen from this that the appellant Dou Tao's defensive acts were aimed at the unlawful aggressor, not at innocent passers-by or the public.

5. Appellant Dou Tao's conduct was not excessive self-defense.

Generally speaking, excessive defense includes two aspects: on the one hand, the perpetrator's defensive behavior clearly exceeds the objective needs of defense, such as the unlawful aggressor has already stopped, but the perpetrator is still chasing and beating; On the other hand, the loss caused by an act of defence is too significant compared to the damage that may be caused by an unlawful offense.

In this case, the appellant Dou Tao's actions only caused minor injuries to the unlawful aggressor Zhang Dabao, and compared with the significant property losses that the appellant Dou Tao might have suffered, his defensive actions did not obviously exceed the necessary limit, nor did he cause significant damage to the other party.

To sum up, the defender believes that the appellant Dou Tao's actions are justified defense and do not constitute the crime of picking quarrels and provoking trouble. In addition, the defender believes that the characterization of this case as justifiable defense will help highlight the value orientation of the law and cultivate good social morality. Please ask the court to rule according to the law, over! Fang Yi said.

"It is now up to the Prosecutor to speak." The presiding judge said.

"Presiding Judge and Judge: We believe that the facts found by the court of first instance are clear, the evidence is credible and sufficient, and the conviction and sentencing are appropriate, and we request that the court reject the appellant's claim in accordance with law." Inspector Wang said.

"The prosecutor may respond to the defender's arguments." The presiding judge said.

"In response to the defender's defense, we mainly make the following points:

In our view, the appellant's conduct did not constitute justifiable defence.

After the expiration of the land contract, the two parties did not reach an agreement on the renewal of the contract, and thereafter, the appellant Dou Tao occupied the land for two years and failed to pay the land rent, which has infringed on the interests of the village collective. During the process of repossession of the land by the village committee, Dou Tao beat the security guard with a kitchen knife and slashed Zhang Dabao to minor injuries.

In any of the following circumstances, a person who arbitrarily assaults another person and disrupts social order shall be found to have 'heinous circumstances' as provided for in item 1 of paragraph 1 of article 293 of the Criminal Law,...... (4) Arbitrarily beating others with a murder weapon......

Appellant Dou Tao arbitrarily assaulted others with a kitchen knife, causing minor injuries to one person, and according to the provisions of the Criminal Law of the People's Republic of China and the above-mentioned judicial interpretations, his conduct constituted the crime of picking quarrels and provoking trouble. Therefore, the charges and sentences determined by the court of first instance were appropriate. Complete. Inspector Wang said.

"The defender may respond to the prosecutor's opinion." The presiding judge said.

Zhou Ying, who was sitting next to Fang Yi, couldn't speak during the trial, so she could only secretly cheer Fang Yi up: Lawyer Fang, come on, defend them to death.

"Based on the prosecutor's defense and response, the defense counsel issued the following defense opinions:

The defender argued that the appellant Dou Tao did not occupy the collective land of the village, and that after the expiration of the land contract, the appellant had approached the village committee to discuss the renewal of the contract, but failed to reach an agreement, and the village committee did not ask Dou Tao to return the land, and Dou Tao had repeatedly taken the initiative to find the village committee to ask for rent payment, but the village committee refused.

In October last year, the village committee notified Dou Tao in writing to return the land, but did not mention compensation, Dou Tao believed that the fruit trees in the orchard belonged to his personal property, and the village committee should give some compensation for the return of the land (in fact, after negotiation between the village committee, the subsequent lessee and Dou Tao, the subsequent lessee compensated for the fruit trees and other above-ground objects in Dou Tao's orchard), but the village committee sent people to try to forcibly cut down the fruit trees and take back the land.

The defender believes that Dou Tao's conduct does not constitute picking quarrels and provoking troubles, nor does it meet the requirements of Article 2, Item 4 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Picking Quarrels and Provoking Troubles".

Article 1 of the above-mentioned judicial interpretation provides that where the perpetrator commits the conduct provided for in Article 293 of the Criminal Law in order to seek excitement, vent emotions, or act arbitrarily, etc., and cause trouble out of nothing, it shall be found to be "picking quarrels and provoking trouble". Where, due to occasional conflicts and disputes in daily life, the perpetrator commits the conduct provided for in Criminal Law article 293 under the pretext of causing trouble, it shall be found to be 'picking quarrels and provoking trouble', except where the conflict was intentionally caused by the victim or the victim bears primary responsibility for the intensification of the conflict.

Based on the above-mentioned judicial interpretations, it can be seen that the determination of whether the appellant Dou Tao in this case constitutes the crime of picking quarrels and provoking troubles should be analyzed from both subjective and objective aspects. Not only must objectively the circumstances provided for in the above-mentioned judicial interpretations be met, but subjectively, the actor should also have the intention to seek excitement, vent emotions, or act recklessly, or use excuses to cause trouble.

In this case, the village committee sent people to break into the orchard of the appellant Dou Tao and forcibly cut down the fruit trees, infringing on the appellant's legitimate rights and interests, thereby intensifying the conflict between the two parties, and the village committee should bear the main responsibility.

Therefore, appellant Dou Tao's conduct was justified and subjectively did not have the intention to cause trouble out of nothing or under the pretext of causing trouble, and should not constitute the crime of picking quarrels and provoking trouble. Complete. Fang Yi said.

……

(End of chapter)