I. The case:

On September 24th, 2008, on the 129 1 train, Cao was so emotional because of mental illness that he even had the idea of jumping out of the window. Although the two passengers in the same company tried their best to control it, they still could not make it completely calm. At this time, someone in the car proposed to tie it up to avoid danger. After the police informed the train conductor, the train conductor discussed with several train conductors and asked the relevant passengers, and decided to tie them up without explicit denial. Cao's upper arm and chest jumpsuit are wrapped in several places, and there are also several places below the knee, and the width is about 7- 10 cm. The next morning, a passenger asked if he could untie the train, but the train thought it was still dangerous. I tied it again after I found it loose. After a while, Cao's foot sticking out of the stool kept twitching, and then a female passenger said that it was tied too much. After finding Cao Da pale and sweaty. A passenger immediately ran to the dining car to find the conductor. At that time, the conductor was having dinner with many flight attendants, and he anxiously told the conductor that something might happen. The conductor still said casually, "If something goes wrong, I'll be responsible!" . When the passengers returned to the carriage, after a while, Cao couldn't swallow anything anymore, his tongue began to change color, his eyes didn't move, and finally he died.

How to characterize the behavior of the train conductor?

Two. Main viewpoints and their reasons

In the discussion of cases, we can basically determine three stages of everyone's behavior. The first is the identification of the behavior stage of "illegal detention" caused by the first "binding". The second time is the identification of the second binding behavior. The third time is the identification of the behavioral stage that leads to death. The different conclusions drawn from this will be discussed below.

(1) constitutes a crime of negligent death.

People who hold this view think that

1. The binding behavior in the first stage is the behavior of the train conductor.

First of all, based on the authority of the train conductor on the train, it is within his authority to limit the possible danger and consider the safety of passengers without endangering Cao's life.

Secondly, even if the authority of the train conductor is not enough to restrict the freedom of others, the behavior based on his consent with the police is legal. In the case that the train conductor and the police have no right to take a step back, the discussion between the train conductor and his colleagues is accompanied by colleagues and their families by default, that is, they have to entrust their families to take care of Cao, so they can also think that they have the right to take certain compulsory measures against Cao.

2. The second stage of binding is the continuation of the first binding behavior, that is, it is only a supplement to the first behavior, so it is also legal. It can be considered as the same as the first behavior.

3. In the third stage, it is considered to be an act of negligent death, because in the case of Cao's objective pallor and sweating, the train conductor subjectively knows that there may be the danger of death of others, and can avoid credulity, which has constituted a fault. Objectively, its inaction eventually led to the death of others, which has violated the crime of negligent death.

This view has also been endorsed by the judiciary, and it is also a crime of negligent death.

(2) it constitutes the crime of illegal detention and has the circumstances of causing death.

There are two different views on the situation that constitutes the crime of illegal detention and causes death:

The first view is that the former binding behavior is illegal in itself, and it is proposed that citizens should not be deprived of their personal freedom illegally in any form, and the train conductor has no right to restrict the freedom of others anyway. The latter kind of binding behavior is the continuation of illegal behavior. In the end, the omission that causes death through negligence can be regarded as the circumstances that cause death in the crime of illegal detention.

The second view is that the previous binding behavior is considered legal (see the previous discussion for legal reasons). The second binding was carried out without consulting anyone. As a train conductor, he himself has no right to restrict his freedom, so the second binding has constituted illegal detention, and finally the omission that causes death through negligence should also be regarded as the plot of illegal detention causing death.

(3) it constitutes the crime of illegal detention but does not have the circumstances that cause death.

People who hold this view are basically consistent with the previous view in determining binding behavior. The difference is that the death caused by negligence is completely unpredictable for the train conductor, that is, the result of Cao's death is an accident for the train conductor, so the train conductor only bears legal responsibility for his illegal detention, which constitutes the crime of illegal detention.

(4) does not constitute a crime.

This view is the same in nature as the previous two views on the crime of negligent death. The difference lies in the determination of the plot that caused the death for the last time, that is, it was considered to be a complete accident for the train conductor. At that time, Cao's death could not be foreseen, and it should not be foreseen, because it can be concluded at that time that even if there is danger, passengers or peers will rescue him, and Cao's death will not happen at all. Since it was an accident, it certainly did not constitute a crime.

(5) It constitutes the crime of illegal detention and the crime of (indirect) intentional homicide.

The previous binding behavior was identified as illegal detention.

The nature of the behavior that caused death later, according to the conductor's statement, is "If something goes wrong, I am responsible!" It can be seen that his speech is subjectively a laissez-faire attitude, and the result of the death of others should be characterized as (indirect) intentional homicide. However, this view is far-fetched Our understanding of the objective aspect cannot be based on just one sentence, otherwise it will only aggravate the responsibility of criminals.

(6) Constitute the crime of (indirect) intentional homicide.

Let's just say here that we still think that the first two binding behaviors are legal, while the train conductor's behavior afterwards is separately identified as (indirect) intentional homicide.

Finally, there is still room for discussion on the determination of the detention period of illegal detention. Whether the continuous detention does not exceed 12 hours or other, whether the provisions of public security organs can be directly recognized as criminal law provisions remains to be discussed.