The Research On The Definition And Criminal Responsibility Of Heat Of Passion Homicide

The “Yao Jiaxin case” in 2010 aroused widespread attention to the heat of passion homicide in China.The core characteristic of heat of passion homicide should be "passion".Therefore,we can define the heat of passion homicide as the crime committed by the criminal who is stimulated by the victim’s behavior.But whether the victim has fault and the degree of fault will have an important and even decisive impact on the criminal responsibility of the passion offender.As a typical form of crime of passion,heat of passion homicide can be defined as the act of homicide committed by the perpetrator under the men tal state of passion caused by the influence of stimulating events.Heat of passion homicide first needs to meet the basic criminal constitution of intentional homicide,that is,the general subject subjectively has the intention of illegally depriving oth ers of life,objectively carries out the act of depriving others of life,and the object seriously violates the victim’s right to life.At the same time,to constitute heat of passion homicide,there must be an objective stimulus event,and the perpetrator is subjectively in a state of passion because of the stimulus event,resulting in a temporary decline in the ability to recognize and control.On the one hand,heat of passion homicide objectively requires that the killing is induced by other people’s stimulat ing behavior,which determines that the occurrence of killing is not determined by the actor in adv ance,with sudden and passive.On the other hand,heat of passion homicide subjectively requires the perpetrator to be in a strong and explosive state of passion,so that the killing behavior carried out immoderately and immediately in this emotional state.As a form of intentional homicide,heat of passion homicide has certain basis of criminal responsibility,guilty and subject.In the stage of “the generation of the state of passion--the implementation of the crime”,the perpetrator committed the homicide under the condition of declining control,so the perpetrator should only bear limited criminal responsibility within the limited scope of freedom.In the stage of“stimulus event occurrence--passion state generation”,the extent to which self-compulsion and cultural compulsion play their respective roles determines the possibility of expectation that the actor will not produce passion,and then determine s whether the accompanying excessive behavior is forgivable to a certain ex tent.In practice,the cases of heat of passion homicide have characteristics in two aspects: emotional type and stimulating event type.The judge will consider whether there is premeditation,whether there is fault of the victim,whether the defendant is emotional,whether the behavior is active or other factors as the core basis for the definition of heat of passion homicide,so there are problems of inconsistent definition standards and unclear definition methods.However,the impact of heat of passion homicide on sentencing is only relative,not absolute,so it cannot be arbitrarily considered that the immediate execution of death penalty can be completely avoided.Although the de fendant’s state of passion at the time of intentional homicide has a significant influence on the judge’s sentencing to a certain extent,the extent of this influence is limited.In the judicial practice of the crime of intentional homicide,the recognitio n of heat of passion homicide is to follow and carry out the charact eristics of modesty,fairness and equality of criminal law.In view of this,we can add paragraph 2 to Article 232 of the Criminal Law: “If the perpetrator commits a homicide because of the influence of the stimulating event,resulting in the decline of re cognition and control ability,he shall be sentenced to fixed-term imprisonment of not less than seven years,life imprisonment or death;If the victim has committed major faults,he shall be sentenced to fixed-term imprisonment of not more than seven year s but not more than three years”.But legislation is a long process,and the existing legal framework also provides room for the application of passionate homicide.We should achieve ideological unity of understanding,the existence of passion as the core factor to identify heat of passion homicide.In terms of methods,we should clearly identify the idea,logically and clearly infer the internal emotional state through the characteristics of external behavior,and correctly state the identification or ne gation reasons of heat of passion homicide.Under the existing legal provisions,we advocate that the defendant of heat of passion homicide should be sentenced to life imprisonment or more than ten years fixed-term imprisonment in general,and then the victim’s fault should be taken as the cursor to revise and adjust the final sentencing.For culture-compulsion heat of passion homicide,it should be considered as “minor”in the crime of intentional homicide and may be sentenced to fixed-term imprisonment of not less than three years but not more than ten years;the perpetrator of self-compulsion heat of passion homicide shall not be given a light punishment,but should be severely punished within the scope of legal punishment.