Research On The Issues Of Judicial Application About The Crime Of Torture

In our country, the crime of torture has become a problem on the judicial system, it is theprincipal causes of criminal misjudged cases. Although the present criminal law haschanged base on the criminal law of1979. But on judicial application about the Crime oftorture.there are still more controversial, whether it is the act of abetting for the identificationof nature of instigator behavior, or the "cause of disability, death" behavior regulation tomake, or punish to the crime of torture in the judicial practice,there are different dispute inthe theoretical circle and judicial practice Not to clarify these problems, not only affects theexpected effect of the original legislation, also not be good for punishment in a certain extent,indulge the torture behavior,This paper anayly on a case, disolve the the problems, in order toto further clarify these issues, provide help to this crime judicial application.In addition to the introduction, this paper consists of five parts, about19000words.The first part: the case of introduction.This part includes the case, the cause of action,and the verdict.The second part: the focus of the dispute.This case has three focus:(1) whetherXiangdong Xia constitutes the crime of torture instigator.(2) whether the torture deadlyHongfei deng should be converted to murder.(3)"exempted from criminal punishment"whether reasonable for the defendantThe third part: the case of disputes and differences.This part mainly expounds thedefendant lawyer with judicial organs and the victim agents AD litem several views in thiscase the focus of controversy.The fourth part: the legal analysis of the case.This part will mainly analyze around thiscase，which mainly analyzes the legal basis of court judgment formation.In this part, first ofall, combined with the case situation, through the qualitative theory of directed the torturebehavior separately, mainly through the analysis of teaching behavior, confirm Xiangdong xiadirected directed type abetting, indicating behavior belongs to solicitation behavior.Second, outlining the theoretical nature of transformation rules of three types of the crimeof torture, respectively is:,"transformation made says","" the aggravated consequentialoffense," said legal fiction ", based on the three points of view in turn, think "torture people ofdisability, death, shall be given heavier punishment for murder and intentional injury" rules should be as a conversion, again that combined with the concrete case, carries on the analysis,think the court will kill Hongfei Deng forced behavior of subjective fault as negligence isfar-fetched. Should not think Hongfei Deng subjectively has hurt intentionally, he hasintentional attitude for the result of the Wan Jianguo death should be converted to the crime ofintentional homicide。 Finally, the author thinks through the analysis of the criminal lawarticle of37can independently apply a sin in the specific provisions of criminal law, alsoincludes the crime of torture can apply, but the torture crime independent be governed by theprovisions of article37"exempted from criminal punishment","minor" must demand inaccordance with the circumstances of the crime and do not need to conditions of thepunishment, but the circumstances of the crime in accordance with two defendant is notconformity with the provisions of the entry.So in this case, the author thinks that twodefendant in accordance with the criminal law article of37,who exempted from criminalpunishment, is inappropriate.The fifth part, the research conclusion and revelation to the case. The author thinks thatXiangdong Xia directed behavior belongs to the behavior of solicitation, and constitute anaccomplice.The People’s procuratorate and the court decided that the nature of directedbehavior as instigatoris is reasonable.The Hongfei Deng`s behavior that court convicted inthat its deadly for faults on the basis of the subjective aspects, to determine the crime ofintentional injury (deadly) is reasonable. But the author thinks that the court of HongfeiDeng deadly results subjective sin as fault too far-fetched, shall use the murder.Think thecourt verdict, meanwhile, the provisions of the applicable to the case "exempted fromcriminal punishment is not reasonable.Criminal law article of37"exempted from criminalpunishment" rules, can be apply to the crime of torture, but exempted from criminal sanctionsimposed in the case of two people, the circumstances of the crime they did not show the"mild", cannot be sentenced to "exempted from criminal punishment", although have activecrimes, should be in the torture crime legal punishment within the limit of light punishment.Finally, from the perspective of judicial torture the conviction and sentencing of sin putsforward some Suggestions.