"This case reminds me of Azu (Wu Yanzu) in "New Police Story", and the living environment has too much influence on people's hearts." Du Yong sighed.

"Well, in Song Rongming's case, do you think there is a problem with the charges prosecuted by the public prosecution? I'm a little unsure about the charges in this case. Lee Myung-bak looked at Du Yong opposite.

Du Yong touched his chin and thought about it: "I agree with the charges determined by the procuratorate. ”

"Oh? The two defendants used the method of beating or coercing the victim with a dagger to forcibly rob property, and the violence or coercion used was sufficient to endanger the lives and health of others, should it not be found to be the crime of robbery? Lee Myung-bak's thinking is different from Du Yong's.

"Well, judging from the way the defendant conducted, it fully meets the constitutive elements of the crime of robbery.

However, the two defendants were both in the age of dancing elephants, and the criteria for determining the degree of violence and coercion should be different from those of adults.

In addition, this case did not cause more than minor injuries to the victim, and it was an act of extorting a small amount of property with slight violence, and I personally believe that it is more appropriate to determine it as the crime of picking quarrels and provoking trouble. Du Yong said.

"Can you be specific?" Lee Myung-bak asked.

"According to article 263 of the Criminal Law, the crime of robbery refers to the act of stealing public or private property on the spot by violence, coercion or other means.

However, according to the provisions of Article 293, Paragraph 1, Item 3 of the Criminal Law, where public or private property is forcibly taken, and the circumstances are serious, it shall be punished as the crime of picking quarrels and provoking trouble.

As far as the crime of robbery and the crime of picking quarrels and provoking troubles by force are concerned, because both crimes are objectively manifested as forcibly and illegally taking possession of public or private property. In judicial practice, disputes are very likely to arise. There are relevant cases in the previous cases handled by the team, and you can borrow the relevant case files when you have time.

In 2005, the Supreme People's Court issued the Opinions on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Robbery, commonly known as the "Two Robbery Opinions", which clearly stipulates that when the perpetrator commits the act of picking quarrels and provoking troubles, it may objectively also be characterized by forcibly taking public or private property. The difference between this kind of forcible act of picking quarrels and provoking troubles and the crime of robbery is:

First, it is subjectively analyzed whether the perpetrator has a motive to provoke.

The crime of robbery is generally committed simply with the illegal possession of public or private property as the criminal purpose, that is, the illegal possession of public or private property is the ultimate goal of the perpetrator.

However, the crime of picking quarrels and provoking troubles also subjectively has the purpose of acting recklessly, venting emotions, and seeking mental stimulation, and the illegal possession of public or private property is in a secondary position in the perpetrator's subjective intention.

Perpetrators of robbery are usually more cautious than perpetrators of picking quarrels and provoking trouble, so that they can flee the scene quickly after committing the robbery.

As for the perpetrators of the crime of picking quarrels and provoking troubles, some deliberately choose to commit crimes in public places and stay at the scene after committing the crime to show their prestige, or choose to commit crimes in the same place multiple times to seek mental stimulation.

From the point of view of the selection of the target of the offense, the crime of robbery is committed for the purpose of embezzling property, so in the selection of the target of the offense, more attention is paid to whether the other party has the realistic possibility of property. The perpetrator of the crime of picking quarrels and provoking troubles pays more attention to whether the target of the infringement has the ability to resist, and to put it bluntly, it is a bit of a bully to the soft and afraid of the hard.

Second, the degree of violence and coercion used by the perpetrator is analyzed from the perspective of objective behavior.

Although the Penal Code does not provide for the degree of violence of robbery, it is generally considered to be sufficient to restrain the victim's resistance. However, in the crime of picking quarrels and provoking troubles, the degree of violence carried out by the perpetrator is relatively weak, and it is generally not necessary to make the victim dare not resist or unable to resist.

Of course, because there is a certain overlap and overlap between the conduct mode of the crime of picking quarrels and provoking troubles and the conduct mode of robbery, and it may sometimes be difficult to determine whether the perpetrator has the motive to provoke, although the judicial interpretation clearly distinguishes between the two crimes, in practice there are still situations where the criminal acts committed by the perpetrator commit both the crime of picking quarrels and provoking troubles and the crime of robbery.

Article 7 of the "Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Picking Quarrels and Provoking Troubles" jointly issued by the Supreme People's Court and the Supreme People's Procuratorate in 2013 also clearly stipulates that where the conduct of picking quarrels and provoking troubles meets the constitutive elements of the crime of picking quarrels and provoking trouble, the crime of intentional homicide, the crime of intentional injury, the crime of intentional destruction of property, the crime of extortion, the crime of robbery, the crime of robbery, and other crimes, it shall be convicted and punished in accordance with the crime with the heavier punishment. Du Yong explained.

"Lawyer Du, I'm a little confused. According to what you just said, the two defendants in this case did constitute the crime of picking quarrels and provoking trouble, but will there be imaginary competition in this case, and the defendants also constitute the crime of robbery, and the court will directly convict and punish them according to the crime of robbery? Lee Myung-bak looked at Du Yong suspiciously. He's going to take all the possibilities into account.

"Well, in fact, the problem you mentioned often comes up in reality, but the defendants in this case are two minors.

The "Two Robbery Opinions" we just mentioned stipulate that the use or threat of minor violence by minors to rob a small amount of property is generally not appropriate to be convicted and punished as the crime of robbery. Where their conduct meets the characteristics of the crime of picking quarrels and provoking troubles, they may be convicted and punished for the crime of picking quarrels and provoking troubles.

In addition, in 2006, the Supreme People's Court promulgated the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Juvenile Criminal Cases in order to further clarify the criteria for convicting minors of using or threatening to use minor violence to forcibly obtain a small amount of property.

Article 7 of the Interpretation stipulates that a person who has already fulfilled his or her grievances uses minor violence or threats. Where the amount of living or school supplies or money carried by other minors is not large, and it does not cause the victim minor injuries or other harmful consequences such as impacting daily life, it is not considered a crime. Where a person who has already reached the end of his or her career and is less than one person has the circumstances provided for in the preceding paragraph, it is generally not considered a crime. Du Yong said.

"Oh? So, the defendant in this case will not necessarily be sentenced? Lee Myung-bak's heart moved, this may not be a good thing for the victim, but for the defender, this is a good opportunity, maybe he can make a name for himself.

"Not necessarily. According to the above provisions, whether the crime of picking quarrels and provoking troubles is constituted involves three issues:

The first question concerns the determination of 'minor violence'.

The criteria for judging minor violence can be analyzed and judged from the manner and intensity of the violence, and whether it caused physical harm to the victim, but there is still a certain distinction between minors and adults.

For example, in the same case of knife robbery, adults and minors show different levels of subjective malice and threat to the victim.

Even if an adult only threatens with a knife and does not actually use a knife to injure the victim, it should generally be found that it exceeds the scope of 'minor violence' and seriously violates the personal safety of others.

In the case of a juvenile robbing with a knife, it is necessary to comprehensively determine whether it is 'minor violence' in light of whether the knife was actually used to injure others, whether it caused more than minor injuries to the victim, or other harmful consequences. Du Yong said this, but was interrupted by Lee Myung-bak.

(End of chapter)