The Interference of Defendant’s Conduct and Immediateness Test

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Therefore, the court convicted the defendant of injury causing death. The conclusion of this case is considered to be violating the immediateness test.^①Different opinions of judicial precedents reflect that the immediateness test is indecisive in the judicial practice. Nonetheless, German judicial precedents cannot be the reason of denying or advocating the immediateness test. Judicial practice is possible to improperly broaden the application of aggravated consequential offense. In a word, although the immediateness test was found in German precedents, it is irrational to totally connect reasonableness of the test with inclination of German precedents.

In brief, the immediate relationship between basic conduct and extended result should be the limitation of aggravated consequential offense. Nonetheless, there are three questions on understanding immediateness test. The first is that what evaluative criterion is included in immediateness test. The second is whether the material for judging immediateness test belongs to objective element or subjective element. The third is that when the judge should evaluate immediate relationship. These questions will be discussed in following types of interference.

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intentional crime should be accomplished.^①This augmentation is based on a premise that the result caused by the second conduct is legally connected with the first conduct.

In other words, the result is attributed to the originally dangerous conduct because the originally dangerous conduct affects the following conduct and leads to the result.^②

In Japanese precedents, the proximate cause theory is accepted. After the first conduct was committed intentionally as perpetrating act, the defendant inadvertently commits the second conduct. If the second conduct is not unusual and abnormal, the legally causal relationship between the first conduct and the harmful result can be affirmed.^③ The inclination of Japanese precedents can be explained by three cases.

(1) The defendant attempted to kill the victim and pushed the victim into the river from a cliff. However, the victim was hung on a tree on the cliff and lost his mind. The defendant pretended to help the victim and went down to unloose the victim’s body from tree. As a result, the victim was killed by the second conduct. The court convicted the defendant of accomplished murder.^④

(2) The defendant wanted to strangle the victim with rope. When the victim stopped struggling, the defendant took the victim for dead and hided the victim in the sandy beach. As a result, the defendant died from joint effect of strangling and sand breathed in. The trial court convicted the defendant of accomplished murder. The defendant disagreed with this conclusion and held that there was deviation in the course of committing crime, thus the intention of murder should be denied. To the objection, the appeal court held that according to the universal opinion of social life, there was casual relationship between the defendant’s conduct of strangling and the victim’s death.

The causation cannot be denied on the basis of defendant’s mistake on victim’s death.^⑤

① Zhang Mingkai, Criminal Law, 4th ed, 2011, Law Press·China, p254.

② Lin Dongmao, Instruction of Criminal Law, 5th ed, 2009, China Renmin University Press, p189.

③ Ida Makoto, Criminal Law, 2008, Yuhikaku Publishing Co.,Ltd, p184-185.

④ Court of Cassation of Japan, Taisho era(12.3.23), Criminal Record, Vol.2, P254. Cited in Maeda Masahide, Criminal Law: General Part, 2006, University of Tokyo Press, p192

⑤ Court of Cassation of Japan, Taisho era(12.4.30), Criminal Record, Vol.2, P378].Cited in Hirasawa Osamu, Elements for Punishing and Sufficient Constitutive Requirements, Chuo-Gakuin University 2010, Review of Faculty of Law, 23(2), p3(108)-4(107)..

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(3) The defendant intended to harm the victim and throttled him. The defendant took the victim for dead when the victim fell into suspended animation. To make the victim seem to be drowned, the defendant threw the victim into a river. As a result, the victim was drowned actually. The court held that the defendant should be convicted of injury causing death if he caused the victim to death through intention of illegitimate injury. In the occasion that some movements without the intention of homicide additionally combined to result in death, there is causal relationship between the conduct of intentional injury and the result of death.^①

The proximate cause theory not only is applied to the intentional crime but also aggravated consequential offense. Japanese precedents accepted the proximate cause test, thus courts generally attributed the extended result to the first conduct on condition that the first conduct is the proximate cause of committing the second conduct. For instance, the defendant of committing rape mistook the victim for being killed by his assault, thus he threw the victim outdoor and victim froze to death.^②

In judicial practice of China, proximate cause theory is a dominant approach to solve the problem of interference of defendant’s second conduct. For instance, two defendants used overpowering drug on a victim for taking the chance to steal money.

Nonetheless, the victim woke up when defendants took her money and fought with defendants. Defendants sealed the victim’s mouth with rubberized tapes and caused the victim to lose consciousness. Defendants felt that victim was not breathing and mistook her for dead. Defendants used four black plastic bags to cover the victim’s head and bind seven layers of plastic tape to fix the victim’s neck. Then, defendants put the victim in the luggage. According to forensic analysis, the victim died from defendants’

conduct of covering the victim’s head with plastic bags. Thus the second conduct of

① Court of Cassation of Japan, Taisho era(7.11.30), Criminal Record, Vol.24, P1461. Cited in Nakamura Shuji, Cases concerning general limitations, act, omission, and causation, Action, Omission, Causation, 2010, Kumamoto Law Journal, (3), p112.

② Supreme Court of Japan, Showa era (36.1.25), Casebook, Vol.15, No.1, P266. Cited in Cited in Maeda Masahide, Criminal Law: General Part, 2006, University of Tokyo Press, p192.

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destroying traces should be the immediate cause of victim’s death. Nonetheless, the court held that although defendants did not intend and expect to kill the victim, their cruel conducts actually caused the victim to die from choking, thus there are necessary casual relationship between their conducts and victim’s death, which was compatible to the legal characteristic of robbery causing death rather than the crime of causing death through negligence. In terms of the court’s opinion, defendants in the case were convicted of robbery causing death through intention on the basis that the causation requirement was affirmed. Therefore, the court accepted the proximate cause theory in fact.^①

In contrast, German precedents of supporting immediateness test inclined to deny that the result is attributed to the defendant in the interference of defendant’s unintentional conduct. In a German case of 1991, the defendant caused the victim to be in a coma in the perpetration of strangling the victim, but the defendant did not intend to kill the victim. Because the victim lost sign of life, the defendant mistook the victim for dead and used a leather belt to strangle the position where there was criminal trace in the victim’s neck for faking a suicide case. The second strangling conduct caused the victim’s death. The court held that the crime of injury causing death required the conduct of injury to accompany with special dangerousness of causing death, and the causal process belonged to abnormal process. As a result, the court held that the defendant was not guilty of injury causing death.^②

In cases mentioned above, it is inadvisable to apply only one theory. To the intentional crime, proximate cause theory is more reasonable than immediateness theory.

Although victims were presumed to be dead in unconscious state, the intention of homicide in the first conduct entirely reflect defendants’ culpability. Furthermore, it is unnecessary to require special illegality for limiting common intentional crime. In the

① Intermediate People's Court of Sanya City, Hainan Province, Judgment Paper of Penal Sentence, 2003, First Trial, No.19.

② BGH StV 1993, 75. Cited in Yamamoto Mitsuhide, Immediateness Requirement in Aggravated Consequential Offense, 1999, Yamaguchi Journal of Economics, Business Administrations and Laws, 47(2), p40-41.

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usual scope of the human experience, it is foreseeable that defendants would destroy the traces in case their criminal acts come to light. It is possible to affirm the legally causal relationship in the intentional crime. Although the second conduct is unintentionally committed for causing the result, the proximate connection between the first conduct and the actually harmful result in the end should not be denied.

Nonetheless, proximate cause theory cannot be directly applied to aggravated consequential offense. In the substantive combination, aggravated consequential offense should have special illegality. The proximate cause theory just explains the legality of normal crime. It is necessary to use a stricter test to regulate causation requirement.

Specifically speaking, causation requirement should be satisfied by immediateness test rather than by proximate cause test. Immediateness test should be applied in two aspects:

physical rule and psychological rule. Because the second conduct is separated from the first conduct in the physical distance, therefore, if the result is caused immediately by the first conduct, the second should be psychologically connected with the first.

Nonetheless, psychological rule should be interpreted in the level of spiritual freedom, rather than extensively treated as thought of trepidation and people’s general reaction.^②Accordingly, if a defendant destroys traces for avoiding prosecution, the result immediately caused by the second conduct should not be attributed to the first conduct.^④The defendant has free will when he destroys traces. His trepidation is not enough to be evaluated as reducing or losing criminal ability. The second conduct should not be immediately related to the first.

Besides, the second conduct is not the natural extension of the special dangerousness created by the first conduct. In the end of committing the first conduct, special dangerousness has disappeared, thus the second conduct causing the victim’s death or other extended result actually creates new dangerousness. It is unreasonable to attribute the result of second conduct to the first.

② Shimada Soichiro, Basic Theories on Principal and Accomplice, 2002, University of Tokyo Press, p292.

④ Uchida Hiroshi, Structure of Aggravated Consequential Offense, 2005, Shinzansha Publisher Co.,Ltd, p246.

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2.3.3 The Interference of Third Party’s Conduct and the Immediateness