Cases
Hylands Successfully Avoided a Potential Arrest in a Criminal Offense of Dangerous Operation
Preface:
In the criminal environment where arrest and prosecution are integrated, it is difficult to obtain bail pending trial. Criminal cases can be applied for bail pending trial from the time of filing to the time of judgment. Successful bail pending trial not only needs the defender to put forward the reason that can be recognized by the case handling organ but also needs the defender to put forward at the right time, otherwise it will be counterproductive.
For defenders, the success of obtaining bail pending trial is a test not only of their professional ability but also of their overall ability to handle a criminal case. The success of obtaining bail pending trial is of special significance to the detained suspects and defendants. After all, freedom is the most precious thing for them.
Review of the case:
In August 2022, the suspect named LI was criminally detained for illegally selling liquefied petroleum gas. After accepting the entrustment of LI’s relatives, attorney Yi CHEN and assistant lawyer Xiaohan YANG immediately participated in the case handling and met Li. After having a preliminary understanding of the case, attorney Yi CHEN and assistant lawyer Xiaohan YANG further learned other key information about the case from the personnel handling the case. In this process, the defenders found that although the suspect did illegally sell liquefied petroleum gas, it was a short-term act and the proceeds of the crime were not much. Beyond that, Li’s living environment and other reasons had led to his lack of awareness of the dangers of illegal sales of liquefied petroleum gas, therefore his subjective malignity was relatively low and he had not caused great losses at present. Since the circumstances of the crime, in this case, were minor and the harm was not great, it cannot be considered a crime according to Article 13 of the Criminal Law.
The defenders exchanged views with the case-handling authority many times and expressed the above-mentioned view, and submitted written opinions such as the application for obtaining a bail pending trial, the application for not arresting, and the description of the situation per the law. In the meantime, the defenders also actively searched for recent cases similar to the case and provided them to the case-handling authorities to illustrate the tendency of the procuratorate to decide not to prosecute similar cases, to enhance the persuasive power of the defense point of view.
With the persistent efforts of the defenders, the public prosecution organ decided not to approve the arrest on September 15, 2022.
Notes on the case:
I. When acting for criminal cases, one should not only pay attention to the specific crimes stipulated in the specific provisions of the Criminal Law but also focus on the distinction between crime and non-crime in the general provisions of the Criminal Law.
In judicial practice, personnel handling the case often pay too much attention to the specific crimes stipulated in the specific provisions of the Criminal Law but ignore the guiding role of the general provisions of the Criminal Law for the specific provisions. If the criminal law principles and the confirmation of crime and non-crime in the general provisions of the Criminal Law are not considered, the legal principle will be ignored, which will eventually lead to the incompatibility of crime, responsibility, and punishment.
In this case, suspect LI’s behavior seemed to be in line with the provisions of the criminal law for the crime of dangerous operations at first glance. However, from the defenders’ observation and interpretation of the case, it can be seen that the suspect lacked awareness of the dangers of his criminal behavior and the actual illegal sale time was short, with little criminal proceeds and a relatively small possibility of causing harm. According to the provisions of Article 13 of the General Provisions of the Criminal Law, the circumstance of the case was minor with less harm, which should not constitute a crime.
II. While dealing with criminal cases, one should take root in the case itself, and search for relevant laws and regulations to seek the basis for obtaining a guarantor pending trial.
After analyzing this crime, the defenders believed that the key element of this crime was the real danger of serious consequences in violation of safety management regulations, so the key to determining the crime was to highlight the danger. It is an important issue to define the threshold of this crime and its accurate expression. The defenders found that this crime had been repeatedly studied in the legislative process to well control the scope of punishment, including the behavior of major hidden dangers that are particularly dangerous and extremely easy to cause serious consequences into the crime, and exclude the general and numerous other behaviors that violate the safety production management regulations from criminal sanctions. After all, this crime does not require the occurrence of actual harmful results.
Regarding this case, suspect LI’s behavior of illegally selling liquefied petroleum gas was simple and a shot term behavior. Neither the number of acts nor the scale of implementation was serious enough to cause dreadful consequences, so it’s not considered a crime.