Mr. Nhu let Hai go. When he was released, Hai ran to the emergency room to look for Loc but could not find him. There, Hai threatened the doctor and told the security guard to go out and fell, dropping the knife outside. Bao picked up the knife and put it in his pocket, then helped Hai up with Hau and helped him to the car. Bao called Tran Van Hoa to tell him that Hai was injured. Hoa came with Bao to take Hai to Binh Dan hospital to treat his injuries. Here, Bao and Hoa heard the patient say that the police had come to the hospital to find the group who had just fought, so the group was afraid of being discovered, so they took Hai to Hau's house to treat his injuries and find a private doctor to treat Hai. After that, the group discussed how to make a statement to the police to deny the crime. Forensic examination conclusion No. 273/GĐPY dated July 15, 2011 of the Da Nang City Forensic Center, Nguyen Bao Loc suffered 03 injuries, including a penetrating chest wound causing hemothorax and pneumothorax, had surgery to drain the lung cavity, injury rate ranked at 15%.
The People's Court of Da Nang City considered that the nature and level of the defendant's crime were very serious. The defendant was aware that a knife was a dangerous weapon that could harm the health and life of others, and was also aware that human health and life were important and protected by law, but he still defied the law and disregarded the health and life of others by stabbing Loc three times in the back, causing a chest puncture, bleeding, and pneumothorax. The defendant's actions were very serious, infringing on the lives of others. The fact that the victim did not die was due to the intervention of everyone and timely first aid. The victim only suffered 15% injury, which was beyond the defendant's subjective intention. The defendant's actions constituted the crime of murder with the sentencing circumstance of "Has a hooligan nature". Applying point n, clause 1, article 93, points b, p, s, clause 1, article 46, article 47, article 52 of the Penal Code, Le Cao Hai is sentenced to 7 years in prison.
In the practice of determining the crime of murder in Da Nang city during the 5-year period (2011 - 2015), the issue of assessing the act of depriving life is the most complicated issue. There are cases where there are many different opinions among the prosecuting agencies - the subjects determining the crime.
For example, Criminal Judgment No. 35/2014/HSST dated August 21, 2014 of the People's Court
Da Nang City People's Court tried the defendants Trinh Vo Tau and Tran Quoc Thanh, who were prosecuted for murder, intentional injury, and resisting a person on duty. Nguyen Long, Nguyen Duc Luc, Nguyen Duc Hong, Phan Dinh Minh, and Phan Cong De were prosecuted for intentional injury and resisting a person on duty [47]. According to the indictment, on March 29, 2013, Nguyen Long and Nguyen Ba Viet fought with Thai Van Vi at a drinking place on the sidewalk at the intersection of Nam Hai Van tunnel and National Highway 14B, but were stopped by everyone, so the incident ended. On March 30, 2013, Vi called Long to provoke a fight. Long asked Trinh Vo Tau for help. Tau took Long's phone and called Vi to ask about Vi's intentions. Vi responded by challenging Long and Tau to fight and arranged to meet at Huong coffee shop (Tuy Loan village, Hoa Phong commune, Hoa Vang district, Da Nang city). That night, Tau invited Tran Quoc Thanh, Thanh accepted and invited Phan Cong De, Phan Dinh Minh, Nguyen Duc Dong, Nguyen Duc Luc, Nguyen Long, Nguyen Ba Viet and brought 3 machetes to break into Huong coffee shop to beat Vi's group, Vi's group ran away. The next morning, March 31, 2013, Thai Van Vi and Trinh Vo Tau continued to call and text back and forth, provoking each other to go to Phuoc Thuan village to fight at about 5:30 p.m. But at about 12:00 p.m. the same day, Trinh Vo Tau, Tran Quoc Thanh, Phan Cong De, Phan Dinh Minh, Nguyen Duc Dong, Nguyen Duc Luc, Nguyen Long met at Tran Tuan Huy's wedding. Tau invited his accomplices to go to Phuoc Thuan village, Hoa Nhon commune, Hoa Vang district to find and beat Vi's group. All agreed. After the wedding, Tau went home, took 2 machetes and 2 knives, put them in a black cloth bag, and called a 7-seat Mai Linh taxi to take his accomplices away, but right at that moment, Tau saw the taxi of Mr. Bui Chi Trung (born in 1988, residing in Tuy Loan Dong 1 Village, Hoa Phong Commune, Hoa Vang District, Da Nang City) just arriving, Tau picked him up and asked Bui Chi Trung to take the whole group to Phuoc Thuan Village. Before getting in the car, Tau called Vi to ask where he was; To prepare to fight with Tau's group, Vi invited Vuong Hung Quy, Huynh Ba Tien, Pham Van Truyen, Huynh Ngoc Hai, Nguyen Van Dung, Nguyen Dinh, Nguyen Huu Tin (all residing in Hoa Nhon Commune, Hoa Vang District, Da Nang City) to go with Vi to Nguyen Huu Tin's house to drink and wait for his group.
Maybe you are interested!
-
Practicing the right to prosecute for murder from the practice of Dong Nai province - 2 -
Causes of Limitations and Inadequacies in the Regulations and Application of Regulations on Aggravating Circumstances of the Subjective Side of the Crime of Murder -
Cultivation and Production Process of Special Rare Weasel Coffee -
Dpcsv Curve And Standard Addition Graph For Determination Of Selenium Form In Aqueous Phase After Defatting With 5ml N-Hexane (1 Time) -
Special and Differential Treatment at Different Stages of Litigation
The Chinese came to fight back. Vi also invited Lam Van Bien (born in 1987, residing in Phuoc Thuan Village, Hoa Nhon Commune, Hoa Vang District, Da Nang City), Huynh Dinh Phung and Son but they did not participate. When the taxi carrying the Chinese group arrived at the "Economic" intersection, the Chinese group saw Vi's group sitting in Nguyen Huu Tin's yard, then the Chinese and Long said "Here they are" and told the driver to stop the car.
Tau took out the weapons in his bag and gave them to Long, Minh and De, each with one. Thanh ran to get the remaining one and rushed into Tin's house. Long, Minh and De took knives and machetes and ran after them. Luc, Dong and Viet also picked up more bricks and stones to chase and attack Vi's group. Vi's group ran away so they all went back to the car. At this time, Bien saw Tau's group coming to their village to fight, so he took a machete and went out to talk to Tau and Thanh. Thanh and Bien knew each other. Thanh said to Bien, "Tell your younger brothers to apologize to me. If not, I will kill them wherever I see them." Bien told Thanh, "There they are. If you're good, then kill them." At that time, Thai Van Vi took a knife and ran to stand near Bien, shouting for everyone to gather and fight against Thanh and Tau's group. Tau, Thanh, Long and Luc chased and beat Vi, forcing him to run away. Luc and Long chased Vi for a while, then stopped and turned back. Thanh and Tau continued to chase Vi but were too late. Thanh and Tau returned to the intersection where the taxi had stopped and saw Nguyen Huu Tin holding a machete and fighting with Luc, Long and Minh. Then Tin threw the machete at Luc but missed. Tin ran away. Tau and Thanh came and saw him and chased after him. Tau kicked Tin while Thanh used a machete to slash Tin's right shoulder once, injuring him and causing him to run away. Thanh continued to chase for a while but was too late so he turned back. At that time, the taxi had turned around and was driving slowly back towards National Highway 14B.
When the taxi arrived at the front gate of Mr. Bien's house, Mr. Lam Van Cu, a police officer of Hoa Nhon commune, received a report from the people, so he dressed as a police officer and went to the scene to ask taxi driver Bui Chi Trung to stop the car and take out the taxi key. Trung ran back to tell Tau's group about the police confiscating the car key, but Nguyen Duc Luc shouted "Rush up and slash to get the key back", Thanh shouted "The police also slash" and then rushed to beat him with a knife, machete, bricks and stones.
Cu. When Cu saw the subjects running towards him, he said "stop, put down your weapons" but Tau's group still rushed towards him. When he saw Luc (holding a knife, running first) rushing towards him (about 30m away), Cu threw the piece of wood he was holding at Luc's leg, causing Luc to fall. Thanh, Tau, Long, Minh, Dong, Luc, and De continued to rush forward to beat Cu. Cu ran into Bien's house and locked the door. Thanh ran after Cu. When he saw Tau's group chasing Cu, Bien (Cu's nephew) ran home with a machete in his hand and said "don't cut him" then chased the whole group away from Bien's yard. Only Thanh held a machete and chased Cu deep into Bien's house and broke down the door to get in, but Mrs. Bon (Bien's mother) advised him not to, so Thanh went out to the yard and saw Bien holding a machete chasing Tau and his gang out of the yard. Thanh held the machete with both hands and ran towards Bien, jumped up and placed the machete in front of Bien's neck, then slashed hard from left to right. Then he ran away but Bien used a machete to slash Thanh's back once.
When he saw Bien's throat being cut by Thanh, Huynh Dinh Phung shouted for the villagers to come with many knives, machetes, and sticks to support Bien and Phung in chasing and beating the Chinese group. After that, Thanh's group ran in the opposite direction to National Highway 14B, Minh fell and was arrested by Mr. Le Van Huong; Long was arrested by Nguyen Huu That and Phung. Nguyen Huu Thanh used the back of the machete to hit Minh's leg, breaking the head of Minh's left fibula; Thai Van Vi used his hands and feet to hit Minh. Vi poured about 1/2 liter of gasoline on Minh's head and body, took out a lighter and threatened to burn Minh, but Mr. Huong stopped him in time, not allowing Vi to act. Both Phung and That used the back of the machete to hit Long's leg. However, Minh and Long refused to assess the injury, did not request treatment, and demanded compensation for damages.
Applying points n,o, clause 1, article 93 on the crime of murder, points a,e,i, clause 2, article 104 on the crime of intentionally causing injury or harm to the health of others, point a, clause 2, article 257 on the crime of resisting a person on official duty, the Trial Panel sentenced the defendants Trinh Vo Tau and Tran Quoc Thanh to a total sentence of 10 years and 6 months in prison each for the 3 crimes of "Murder", "Resisting a person on official duty" and
“Intentionally causing injury”. Applying points a, e, i, clause 2, article 104 on the crime of intentionally causing injury or causing harm to the health of others and point a, clause 2, article 257 on the crime of resisting people on official duty, sentenced Nguyen Long to 03 years 03 months in prison; Nguyen Duc Luc to 03 years 06 months in prison; Nguyen Duc Dong to 02 years 06 months in prison; Phan Dinh Minh to 02 years 06 months in prison; Phan Cong De to 02 years 06 months in prison. Applying Defendant Thai Ba Vi received a sentence of 12 months for the crime of “Threatening to kill” (Vi was arrested on July 4, 2014). Defendant Nguyen Ba Viet received a sentence of 13 months 05 days in prison for the crime of “Intentionally causing injury” and was released immediately at the trial because the time in detention was equal to the time served.
Here, there is a view that Thanh, Tau, Long, Minh, Dong, Luc, De, and Trung are accomplices in the crime of murder. Vo Tau is the organizer, the mastermind, the leader, the commander of the crime, Thanh is the executor, the person who directly committed the crime, Long, Minh, Dong, and Luc are the ones who incited, motivated others to commit the crime, created the mental conditions, and were the ones who directly committed the crime. Trung is the taxi driver, knowing that Tau's group hired him to commit the crime but still accepted, drove the car to approach the victim and actively turned the car around to facilitate the escape of his accomplices. Therefore, Long, Minh, Dong, Luc, De, and Trung must be prosecuted for murder as accomplices under Article 20 of the Penal Code. Applying Article 53 of the Penal Code, the Trial Panel must consider the nature of the accomplices, the nature and level of participation in the crime of each accomplice as well as the mitigating, aggravating or excluding circumstances of criminal liability of any accomplice, which shall only be applied to that person.
* Legal assessment of the signs of the subject element of the crime of murder
The subject of a crime is a person who has criminal responsibility, has reached the age prescribed by law and has committed a crime. According to the provisions of Vietnamese criminal law, the subject of a crime in general, including the subject of murder, must satisfy two conditions: having full criminal responsibility and reaching the age of criminal responsibility.
The clearest is Criminal Judgment No. 36/HSST dated September 28, 2015 of the People's Court of Da Nang City, which tried Nguyen Viet Son, born on November 23, 2000, for the crime of Murder [50]. According to the indictment, at about 02:00 on May 16, 2015, after drinking in the area near Hoa Khanh market, Lien Chieu district, Da Nang city, Nguyen Viet Son, along with Nguyen Bao Quoc, Nguyen Van Tri and Nguyen Van Hoi, continued to the Hello restaurant on Nguyen Tat Thanh street, group 169, Hoa Minh ward, Lien Chieu district, Da Nang city to continue drinking. At that time, there was a group of young men and women including Nguyen Xuan Ky, Nguyen Quoc Huy, Vo Duy Vuong, Nguyen Hoai Lam, Vu Truc Linh, Duong Thi Tuyet Mai and Nguyen Thi Thu Phuong celebrating a birthday at the table next to Son's group. Son's group had been sitting for about 10 minutes when Hoi realized Ky was drinking at the table next to them, then Ky went to the table next to them to invite Hau to have a beer. A moment later, Quoc, Hoi and Tri went to Ky's table to invite him back. Because he saw that Son was young, but when Ky came to invite him to have a beer, Son had a disrespectful attitude, so Ky called Son to his table and said to Son, "You're young but rude." While saying that, Ky used his left hand to press Son's neck down and then used his right hand to hit Son's back once, and everyone stopped him. Suddenly, Lam rushed in and used his hand to hit Son to the ground. Son ran into the kitchen to hide, taking a knife from the kitchen to protect himself. Nguyen Hoai Lam suddenly rushed in, used his helmet to hit Son once in the head, Son immediately used a knife to stab Lam once in the right chest and then let go of the knife. Being stabbed, Lam struggled to run towards Nguyen Tat Thanh street and collapsed. Forensic examination conclusion No. 487/PY dated May 20, 2015, the cause of Nguyen Hoai Lam's death was due to a wound penetrating the lung, the victim suffered from traumatic shock, blood loss shock, respiratory failure, cardiovascular collapse and death. The People's Court of Da Nang City considered that this was a very serious case. Defendant Son used a 20cm long sharp knife to stab the victim's right chest, a vital area on the human body, resulting in a punctured lung, respiratory failure, cardiovascular collapse and death. The defendant's criminal act took the life of another person, caused pain and loss to the victim's family, and negatively affected the social order and security situation. Therefore, the defendant must be punished with a sentence commensurate with the nature and severity of the crime.
Only when the defendant commits a crime and is isolated from society for a period of time can the effect of deterrence and general prevention be achieved. However, in this case, the cause of the conflict arose because the victim was at fault first, and beat the defendant Son for no reason. The defendant went to the table to apologize and hid in the kitchen, but the victim still rushed in and hit him on the head with a helmet, so the defendant used a prepared knife to stab the victim in the chest, leading to his death.
During the investigation, the defendant honestly confessed his crime, repented, had no previous criminal record, committed the crime when he was only 14 years, 5 months and 23 days old, and his mental and physical health were not yet fully developed. Therefore, the People's Court of Da Nang City must apply the mitigating circumstances stipulated in Point b, p, Clause 1, Clause 2, Article 46 and apply Article 47 to decide on a lighter sentence than that prescribed by the Penal Code, Article 69 - Principles for handling juvenile offenders, Article 74 - Fixed-term imprisonment for juvenile offenders, and sentence the defendant below the lowest sentence in the penalty range to demonstrate the leniency of the law and in accordance with the principles for handling juvenile offenders. The Trial Panel of the People's Court of Da Nang City decided to sentence the defendant Nguyen Viet Son to 4 years in prison, forcing the defendant to compensate the victim's family 60 million VND in damages.
* Legal assessment of the subjective elements of the crime of murder
The subjective aspect of a crime is understood as the internal psychological manifestations of the offender at the time of committing the crime. The subjective signs of a crime include: fault, motive, and purpose of the crime, in which fault is a mandatory sign stipulated in all elements of a crime.
According to the provisions of Article 93 of the Penal Code, the crime of murder is committed in the form of direct intentional fault. The purpose of the crime is to deprive another person of life. The point to note in determining the crime related to the subjective element of the crime is that the two signs mentioned above are not only present in the crime of murder but are also stipulated in the criminal composition of other crimes against life. This will lead to confusion in determining the crime of murder and other crimes against life, such as the crime of killing a newborn child, the crime of murder due to exceeding the limits of legitimate defense.
2.2.2. Determination of the crime of murder in special cases
Determining the crime of murder in special cases is understood as determining the crime in cases where the crime is in an unfinished stage; cases where, in addition to murder, the offender also commits other crimes and cases where the murder case has an element of complicity.
* Determination of the crime of murder in cases where the crime is at an incomplete stage
In terms of subjective consciousness, in most cases of intentional (direct) crimes, the offender always wants to commit the crime to the end in order to achieve their criminal purpose. However, in reality, due to the influence of many different factors, the offender must stop their criminal behavior before achieving the set purpose.
To solve the problem of criminal liability of the offender in cases where the criminal act does not fully satisfy the signs of constituting a crime as prescribed in the specific article of the Crimes Section of the Penal Code, Vietnamese lawmakers have established the institution of stages of crime. The stages of crime are steps in the process of committing a crime that manifest at different levels of danger to society at different times of intentional crime. The stages of crime include preparation for crime, attempted crime and completed crime.
In determining the crime of murder, in addition to determining that the act of taking life has occurred and satisfies the elements constituting the crime of murder as prescribed in Article 93 of the Penal Code at the stage of completed crime, it is necessary to determine the cases of murder at the stage of preparing to commit the crime and the stage of incomplete crime.
Article 17 of the Penal Code stipulates that preparation for a crime is " searching for, preparing tools, means or creating other conditions to commit a crime ". Accordingly, preparation for the crime of murder is understood as searching for, preparing tools, means or creating other favorable conditions to effectively carry out the act of depriving another person of life.