Determination Of "The Lighter Circumstance" For The Crime Of Intentional Homicide

This paper starts from the controversial focus of theoretical circles on "the lighter circumstance" of intentional homicide,and discusses the substantive elements and specific types of "the lighter circumstance" of intentional homicide by combining the collected judicial cases that have emerged in practice.The paper is divided into four parts.The first part compares the legislative sources of intentional homicide in China and the relevant provisions in foreign countries,analyzes the characteristics of their respective legislation,summarizes their problems and worthy of reference,and elaborates the inspiration for the elements and types of influence on the determination of "the lighter circumstance" of intentional homicide in China’s current criminal law.At the same time,we analyze the reasons why China’s criminal law still insists on adopting general legislation for the crime of intentional homicide after several amendments and its reasonableness,taking into account the legislative background of China’s current crime of intentional homicide.The second part clarifies the scope of the "circumstances" of "the lighter circumstance" for intentional homicide.The core view is that its scope should exclude statutory mitigating circumstances.Firstly,we analyzes the problems of confusing the use of statutory mitigating circumstances and "the lighter circumstance" in the sentencing process of intentional homicide;secondly,it clarifies the relationship between the general provisions and the sub-rules,and argues that the sub-rules of China’s criminal law are set based on the pattern of attempt,while the statutory mitigating circumstances in the general provisions are mostly attempt and suspension,and it is not reasonable to identify them as "the lighter circumstance" in the sub-rules.Finally,we take the attempted crime as example to further analyze how to apply the mitigating circumstances of the general provisions of criminal Law and "the lighter circumstances" of intentional homicide in the sub-rules.The third part clarifies the substantive elements that influence the determination of"the lighter circumstances" for intentional homicide.In view of the complexity of the determination of "the lighter circumstance" and its close connection with specific cases,this part mainly combines relevant theories and takes the legal documents of the last five years of cases of "the lighter circumstance" of intentional homicide in Sichuan Province as a sample to extract the factors that considered by the judges in determining“the lighter circumstance".The objective harm is small,the subjective evil of the perpetrator is small and the personal danger is low,which are the necessary conditions for the determination of "the lighter circumstance".From the judicial cases,it can be concluded that the objective harm is less in the determination that the means of killing is not particularly bad and there are no serious consequences other than the death of one person,and the subjective malice is less in the determination that the criminal motive is not bad and the expectation of lawful behavior is low,in addition,to be considered as"the lighter circumstance",it is necessary not to violate the public’s sense of right and wrong.The fourth part lists the types of "the lighter circumstance" for intentional homicide.The theoretical community in China has not reached a consensus on the types of "the lighter circumstance" for intentional homicide,this part is mainly combined with the substantive elements for judging "the lighter circumstance",the judicial practice in China has emerged and in line with the current macro policy and social concept of the "lesser circumstances" type in a clear way to list,summarized into two major categories:typical type and specific circumstances.Combined with the relevant cases,analyze jurisprudence and logic,and summarize them comprehensively.