Source: Litchi News
Not long ago, under a high-rise building in Qixia District, Nanjing, ceramic cups, suitcases, milk tea, etc. fell from the sky, and two cars were smashed. The police found Wang, who threw an object from the 7th floor.
It is understood that Wang is a single mother, and her daughter who is in the rebellious period of fourteen or fifteen years old often quarrels. Under the education of the police, Wang realized the danger of his behavior, but it was too late.
The prosecutor said that the damage caused to the vehicle in this case has reached about 20,000 yuan, which meets the standard for filing a case for the crime of intentional destruction of property. After the incident, Wang actively compensated the owner for the loss and pleaded guilty and accepted punishment. After comprehensive consideration after trial, the court sentenced Wang to 9 months of criminal detention with a one-year probation.
Related:
Throwing objects from high altitudes is punished! How to determine the "high-altitude" criterion for high-altitude projectiles?
Amendment (11) to the Criminal Law adds the crime of throwing objects from high altitudes, stipulating: "Anyone who throws objects from buildings or other high altitudes, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than one year, short-term detention or controlled release, and/or a fine." "Where the conduct in the preceding paragraph simultaneously constitutes another crime, follow the provisions for the heavier punishment at trial and sentencing." For the crime of throwing objects from a height, the determination of "high altitude" is the key to the application of the crime. For the crime of throwing objects from a height, the determination of "high altitude" is the key to the application of the crime.
The basis for the establishment of high-altitude standards
In terms of connotation, high altitude is higher space. However, "high" is a vague concept, with obvious ambiguity and relativity. The establishment of the high-altitude standard aims to clarify the ambiguity and relativity of the high-altitude object, and it is necessary to clarify the basis for the crime of high-altitude projectile from both substantive and formal aspects in light of the criminal nature of the crime.
01
The substantive basis of the high-altitude standard: From the perspective of the infringement of legal interests, high-altitude projectiles may involve three different legal interests, namely, public safety, public order and the institutional norms prohibiting high-altitude projectiles. Among them, the legal interests of public safety are a higher standard of legal interests, and the draft amendment (11) to the Criminal Law originally adopted this approach, placing the crime of throwing objects from high altitudes in Chapter 2 of the Criminal Law "Crimes of Endangering Public Safety", requiring that the act of throwing objects from high altitudes must "endanger public safety" in order to constitute the crime of throwing objects from high altitudes; Article 1254 of the Civil Code of the Mainland clearly stipulates that "it is forbidden to throw objects from buildings", and the adoption of the system legal interest standard means that as long as the act of throwing objects from high altitudes is carried out, it violates the institutional provisions prohibiting throwing objects from high altitudes, which can constitute the crime of throwing objects from high altitudes. In contrast, the legal interests of public order are a standard of legal interests between public safety and institutional legal interests, and the Amendment (11) to the Criminal Law places the crime of throwing objects from high altitudes in the section "Crimes of Disrupting Public Order" in Chapter 6 of the Specific Provisions of the Criminal Law, "Crimes of Obstructing the Order of Social Management", and requires that the act of throwing objects from high altitudes must disrupt public order in order to constitute a crime. Public order is the order necessary for the maintenance of the public life of society. In accordance with the requirements of public order legal interests, the high-altitude standard for high-altitude projectiles can neither be too high nor too low, too low may not endanger public order (for example, throwing objects from a height of 1 meter may not affect social and public life at all), too high may excessively endanger public order (or even seriously endanger public safety), such as the 1990 "Civil Aviation Flight Regulations of China" on the flight of "high altitude" (6000 meters to 12000 meters) is obviously too high, not suitable as a high-altitude standard for high-altitude projectiles.
02
The formal basis of the high-altitude standard: the internal logical relationship of the crime. For the "high-altitude" of high-altitude projectiles, there are many views advocating the use of the national standard GB/T3608-2008 "Classification of Work at Height" as stipulated in the standard for high-altitude work (i.e., work at a height of 2m or more from the datum of the falling height that may fall). However, the criminal law requires that the determination of the "high-altitude" standard cannot be separated from the provisions of the crime. Amendment (11) to the Criminal Law describes the act of throwing objects from a height as "throwing objects from a building or other high altitude". Here, "building" and "other high-altitude" are defined side by side, which basically means that "building" is "high-altitude", and other spaces of the same height as the building belong to "other high-altitude". However, there are many types of buildings in the mainland, including industrial buildings and civil buildings, and industrial buildings are divided into factories and warehouses. The number of floors of the building varies; The buildings vary in height. Therefore, in terms of formal standards, the minimum standard for high-altitude projectiles should be the space with the lowest building height (a building with only one floor).
However, the problem of high-altitude standards for high-altitude projectiles cannot be solved only according to the formal standard. For example, "throwing objects from a building" can be thrown from the top of a building downwards or from inside a building outward. Throwing objects from the window on the first floor is actually equivalent to the perpetrator standing on the ground and throwing objects outward, and obviously should not be found to be high-altitude objects. The high-altitude standards for high-altitude projectiles shall be determined in light of their legal interests and crimes.
Judicial application of high-altitude standards
In practice, the determination of high-altitude throwing behavior in some special circumstances also deserves special attention in judicial application.
01
Throwing an object from the ground upwards is not a high-altitude throwing object. From the height point of view, the height of throwing from the ground can fully meet the above height requirements of high altitude. However, from the perspective of the criminal law provisions of the crime of throwing objects from high altitudes, throwing objects from the ground upwards should not be found to be high-altitude throwing objects. This is because the expression of "throwing objects from buildings or other heights" in Amendment (11) of the Criminal Law basically means throwing from buildings or other heights, that is, from top to bottom, excluding throwing from bottom to top; At the same time, the regulation is also aimed at curbing people's psychology that high-altitude objects are not easy to be found and easy to evade responsibility. These are not things that are not done by throwing objects upwards from the ground.
02
Throwing objects from parallel heights is not considered to be thrown from height, but only if the item has not fallen. Parallel height here is throwing an item at a certain height to another that is about the same height. For example, if the perpetrator lives on the eighth floor and throws an object at the balcony of a neighbor who lives on the eighth floor, the movement of such an object reflects the horizontal kinetic energy of the plane rather than the vertical kinetic energy, and cannot be found to be a high-altitude throwing object. However, if the thrown object falls inadvertently, it may constitute a high-altitude throwing object, because the actor who throws the object at a parallel height should have a high degree of awareness of the possibility of the object falling, subjectively have a laissez-faire mentality, and should be held responsible for his actions.
03
Throwing an object downwards from the ground may constitute a high-altitude projectile, provided that it is a public place below the ground. As mentioned earlier, altitude is a relative concept, and the base point of its contrast is not necessarily the ground, but the plane of the fall. Many shopping malls in modern cities have basement floors, and many basements are still used for operation, which are public places; Some deep pits may also be inhabited or used for production operations. From the point of view of disturbing public order, throwing objects downwards on the ground in these places will also cause public order disturbance, and it is not contrary to the original intent of the heights. Therefore, whether it is from the negative first floor of the shopping mall to the negative second floor or the negative third floor, as long as the following is a public place, and the act will cause a disturbance of public order, it should be determined that the act is a high-altitude throwing behavior.
Source: Shanghai Yangpu District Bureau of Justice
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