【案情】

2006年10月25日夜9时55分许，张某某酒后驾驶自己工作单位的小型普通货车，在台州市椒江区75线省道自西往东行驶至椒江区前所街道上徐村桥头地段时，碰撞了在该路段自西往东由王A所骑的人力三轮车，三轮车后厢乘客是王B，造成了王A受伤、王B受重伤经送医院抢救途中死亡的交通事故。事故发生后，张某某没有停车查看，直接驾车离开现场。第二天凌晨，公安机关通过排查将被告人张某某抓获。经认定，张某某负此次事故的全部责任。

【审判】

一审法院认为，被告人张某某无视道路交通管理法规，酒后驾车致一人死亡，且肇事后驾车逃离现场，张某某的行为与被害人王富妹的死亡后果有直接因果关系，其行为已构成交通肇事罪，判处有期徒刑三年六个月。

被告人张某某不服一审判决，委托我担任其二审辩护人，并以原判决认定事实不清、判定肇事后逃逸证据不足为理由提起上诉，请求二审法院依法改判，

二审法院经开庭审理，认为原判认定张某某犯交通肇事罪的事实不清，裁定撤销一审的判决，并发回重审。

一审法院重新开庭进行审理，完全采纳了我所提出的关于认定张某某交通肇事后逃逸证据不足的辩护观点，判处张某某缓刑。

【评析】

本案一、二审三次开庭审理主要分歧在于张某某的行为是否属于“交通肇事逃逸”，下面就此问题从二个方面进行评析：

《刑法》第一百三十三条规定：违反交通管理法规，因而发生重大事故，致人重伤、死亡或者使公私财产遭受重大损失的，处三年以下有期徒刑或者拘役；交通运输肇事后逃逸或者有其他特别恶劣情节的，处三年以上七年以下有期徒刑；因逃逸致人死亡的，处七年以上有期徒刑。

一、司法实践中对交通肇事逃逸认识的误区

在司法实践中，有些人往往对交通肇事罪中驾车离开现场的情况，均认为是交通肇事逃逸，这是对立法精神和司法解释的曲解。从交通肇事罪和交通肇事逃逸的犯罪构成属于标准和派生的关系来看，我们可以看出两者犯罪构成有诸多相似之处，两者的主、客体是一样的，客观方面中也有部分是重合的。两者的区别是在主观方面，一般的交通肇事罪其主观方面是过失，其中有一部分类似于交通肇事逃逸驾车离开现场的，即指在不明知发生交通事故的情况下离开的。而根据最高人民法院《关于审理交通肇事刑事案件具体应用法律若干问题的解释》第3条规定：“交通肇事逃逸是指行为人具有解释第2条第1款规定和第2款第（1）至（5）项规定的情形之一，在发生交通事故后，为逃避法律追究而逃跑的行为。”其是以逃避法律追究的主观故意为要件。因而当两者在客观方表现也一致时，就要看其主观方面认定是否属于交通肇事逃逸的特征。因此认定逃逸须符合下列二个要件：1、客观上，行为人违反交通运输管理法规的行为已经造成了重大交通事故，而不是一般交通事故，即要构成交通肇事罪；2、行为人主观上已经认识到了自己违反交通运输管理法规的行为已经造成交通事故，有逃避法律追究的故意。

二、如何认定行为人主观上是否有逃避法律追究的故意

行为人主观上是否具有逃避法律追究的故意，这就涉及到对交通肇事罪犯罪主观方面的认定问题。犯罪主观方面是指行为人对于危害社会的结果的主观心理状态。一般考察犯罪的主观方面，我们往往是看被告人的口供，但一些已实施犯罪行为的被告人出于各种原因，如抱有侥幸的心理等，不如实供述或拒不供述。因而我们在办案过程中考察犯罪构成的主观方面时，对被告人的供述必须结合其他证据综合分析，既不能因为有过供述而一概认定，也不能因为没有供述而概不认定。本案中，张某某的供述是认为自己虽然知道当时发生了事故，但仅认为是自己的车子碰撞了障碍物，并没有看到任何人员。那么我们怎么去判断其口供是否真实呢？为此，我结合案发现场、案发时间、路况、案发后的行动及车辆保险情况等进行综合分析，认为张某某的口供具有客观真实性，因此不能认定其主观上有逃避法律追究的故意。最终，法院采纳了我的观点，认定张某某当时已发现自己撞到受害者的证据不足，判决缓刑是恰当的。

【辩护过程】

这个案子一审的时候，张某某并没有委托辩护人为其辩护，一直等拿到判决书后，才认为一审法院认定其交通肇事后逃逸错误，判处三年零六个月的有期徒刑量刑过重，准备聘请律师为其提起上诉。据事后家属的反映，为了上诉的事情，用了整整三天的时间寻找律师，在这三天时间里找了很多家律师事务所并咨询了不少律师，而这些律师在大概了解了案情后均认为这个案子上诉改判的可能性基本等于零。至此，家属的心情跌到了谷底，对上诉之路充满了迷茫。

最后，经人介绍，家属找到了我，我在看了一审的判决书后，也觉得这个案子想在二审改判挺难的，但看到其家属那一脸无助的样子后，我决定先进一步了解这个案子，于是免费为其到看守所会见。会见时，张某某自始至终都表示当时确实没发现路上有行人及其受害人骑的人力三轮车，仅以为自己的车子碰撞了障碍物而直接离开现场的，并向我描述了案发时的一些情况、路况，请我帮帮他。我在回来后，通过网络查阅了很多资料及相关案例，也和同事一起分析了这个案子，觉得这个案子还有点希望存在，有希望就有动力，使我对这个案子产生了兴趣，于是我开始了为张某某的辩护之路。

辩护过程中，我以当事人是否有逃避法律追究的主观故意为焦点，结合案发时的路况、天气、肇事车的行驶路线和位置、车辆所撞击的部位、肇事车的保险情况、回家后有无异常表现及受害人所驾驶的人力三轮车有无反光装置及其所穿的衣服有无反光材料等情况，共列举了十一条理由来说明当事人当时确实没有发现自己撞到了受害人及其车辆，并围绕本案的证据，书写了一份庭前的辩护意见，交给二审法院及出庭检察员各一份，供其参考。为了对当事人负责，我还特地晚上驾车赶到案发现场实地考察。庭审后，二审法院认为原判认定犯交通肇事罪事实不清，并发回重审，案件出现了曙光。重审过程中，法官也认真细致对本案进行了综合分析，最终采纳了我的辩护观点，认为指控交通肇事后逃逸证据不足，并判处缓刑。

在被宣布缓刑的时候，张某某及其家属当场就哭了。见此情形，我当时也差点掉下眼泪，不知道为什么，以前为当事人打赢官司也没这么激动过，可能是因为这个案件改判的来之不易吧。

【感想】

1、律师在办理刑事案件时，细致、全面了解案情并进行理论分析至关重要，这才能体现律师在中间所起到的作用，一般的法律规定只要打开法条就能知道。所以我认为，在精通业务的情况下，有责任心、能为当事人之想所想、为当事人之急所急的律师才是名好律师。

2、司法工作者的欠缺。据我了解，现在基层的相关司法机关案件数量大，人员少，经常出现一名司法工作者在一个星期内要办理七、八个案子甚至更多，这就难免出现差错，这种情况下往往使人变得麻木，做事情按部就班，案件质量难以保证。在这种情况下，就需要律师能认真办案，并找出重点、疑点来和相关司法工作人员探讨，最大程度保证案件的处理结果。

【Case details】

At around 9:55 pm on October 25, 2006, Zhang, while driving a small ordinary truck from his workplace under the influence of alcohol, collided with a human tricycle ridden by Wang A from west to east on Provincial Highway 75 in Jiaojiang District, Taizhou City. The passenger in the rear compartment of the tricycle was Wang B. This caused a traffic accident where Wang A was injured and Wang B was seriously injured and died on the way to the hospital for rescue. After the accident, Zhang did not stop to check and drove directly away from the scene. The next morning, the public security organs arrested the defendant Zhang through investigation. It has been determined that Zhang is fully responsible for this accident.

【Trial】

The first instance court held that the defendant Zhang, who disregarded road traffic management regulations and drove under the influence of alcohol, caused one person's death, and fled the scene while driving after the accident. Zhang's behavior was directly related to the death consequences of the victim Wang Fumei, and his behavior constituted a traffic accident crime. He was sentenced to three years and six months in prison.

The defendant Zhang, who disagrees with the first instance judgment, entrusted me to serve as his second instance defense. He appealed on the grounds that the original judgment was unclear and the evidence of escape after the incident was determined to be insufficient. He requested the second instance court to change the judgment in accordance with the law,

After a trial, the second instance court found that the fact that Zhang was found guilty of traffic accident in the original judgment was unclear, and ruled to revoke the first instance judgment and remand it for retrial.

The first instance court reopened the trial and fully adopted my defense view that there was insufficient evidence for Zhang's escape after causing a traffic accident. Zhang was sentenced to a suspended sentence.

【Evaluation and Analysis】

The main difference between the first and second trials of this case lies in whether Zhang's behavior belongs to "traffic accident escape". The following is an analysis of this issue from two aspects:

Article 133 of the Criminal Law stipulates that anyone who violates traffic management regulations and causes a major accident, resulting in serious injury, death, or significant loss of public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Those who escape after a traffic accident or have other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; If a person dies due to escape, he shall be sentenced to fixed-term imprisonment of not less than seven years.

1、 Misunderstanding of Escape in Traffic Accidents in Judicial Practice

In judicial practice, some people often consider the situation of driving away from the scene in traffic accident crimes as a traffic accident escape, which is a distortion of the legislative spirit and judicial interpretation. From the perspective of the standard and derivative relationship between the crime of traffic accident and the crime of traffic accident escape, we can see that there are many similarities in the criminal composition of the two. The subject and object of the two are the same, and there are also some overlap in objective aspects. The difference between the two lies in the subjective aspect. Generally, the subjective aspect of a traffic accident crime is negligence, and some of them are similar to those who escape and drive away from the scene in a traffic accident, that is, they leave without knowing that a traffic accident has occurred. According to Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents, "traffic accident escape" refers to the behavior of the perpetrator who, in one of the circumstances specified in Article 2 (1) and Article 2 (1) to (5) of the interpretation, escapes to evade legal investigation after a traffic accident. It is based on the subjective intention to evade legal investigation. Therefore, when the objective performance of both is consistent, it depends on whether their subjective determination belongs to the characteristics of traffic accident escape. Therefore, the determination of escape must meet the following two requirements: 1. Objectively, the behavior of the perpetrator in violation of traffic management regulations has caused a major traffic accident, rather than a general traffic accident, which constitutes a traffic accident crime; 2. The perpetrator has subjectively realized that their violation of transportation management regulations has caused a traffic accident and has the intention to evade legal action.

2、 How to determine whether the perpetrator subjectively has the intention to evade legal investigation

The subjective determination of the subjective aspect of the traffic accident crime is related to whether the perpetrator has the intention to evade legal investigation. The subjective aspect of crime refers to the subjective psychological state of the perpetrator towards the consequences of endangering society. Generally, when examining the subjective aspect of a crime, we often rely on the defendant's confession. However, some defendants who have committed criminal acts, for various reasons, such as having a lucky mentality, may not be able to truthfully confess or refuse to confess. Therefore, when examining the subjective aspects of the criminal constitution during the process of handling cases, we must comprehensively analyze the defendant's confession in conjunction with other evidence. We cannot assume that there has been a confession, nor can we assume that there is no confession. In this case, Zhang's confession is that although he knew of the accident at the time, he only believed that his car had collided with an obstacle and did not see anyone. So how do we judge whether their confession is true? For this reason, I conducted a comprehensive analysis based on the scene of the crime, the time of the crime, the road conditions, the actions taken after the crime, and the vehicle insurance situation. I believe that Zhang's confession has objective authenticity, and therefore cannot be determined to have intentionally evaded legal action subjectively. In the end, the court adopted my viewpoint and found that Zhang had found insufficient evidence to have collided with the victim at that time, and the suspension of sentence was appropriate.

【Defense process】

At the first instance of this case, Zhang did not entrust a defender to defend him. He waited until he received the judgment before believing that the first instance court had determined that he had made a mistake in escaping after causing a traffic accident and sentenced him to three years and six months in prison, which was too heavy a sentence. He was preparing to hire a lawyer to file a lawsuit for him. According to the feedback from the family afterwards, in order to appeal, it took a full three days to find a lawyer. During these three days, many law firms were consulted and many lawyers were consulted. After roughly understanding the case, these lawyers believed that the possibility of an appeal and a change of judgment in this case was basically zero. At this point, the mood of the family members fell to the bottom, and they were full of confusion about the path of appeal.

Finally, after being introduced, my family found me. After reading the verdict in the first instance, I also found it difficult to change the verdict in the second instance. However, seeing the helpless face of his family, I decided to take a step forward to understand the case, so I went to the detention center for free to meet him. During the meeting, Zhang stated throughout that he did not find any pedestrians or the human tricycles ridden by his victims on the road. He only thought that his car had collided with an obstacle and left the scene directly. He described some of the situation and road conditions at the time of the crime to me and asked me to help him. After returning, I consulted a lot of information and related cases online, and also analyzed this case with my colleagues. I felt that there was still some hope in this case, and if there was hope, there was motivation. This sparked my interest in this case, so I began my defense for Zhang.

During the defense process, I focused on whether the parties involved had subjective intent to evade legal investigation, taking into account the road conditions at the time of the incident, the weather, the driving route and location of the accident vehicle, the impact area of the vehicle, the insurance situation of the accident vehicle, any abnormal behavior after returning home, and whether the human tricycle driven by the victim had reflective devices and whether the clothes they wore had reflective materials, A total of eleven reasons were listed to demonstrate that the parties did not indeed discover that they had collided with the victim and their vehicle at the time, and a pre-trial defense opinion was written based on the evidence in this case, which was submitted to the second instance court and the attending prosecutor for their reference. In order to be responsible to the parties involved, I also drove to the scene of the crime at night to conduct on-site inspections. After the trial, the court of second instance found that the fact that the original verdict was guilty of traffic accident crime was unclear, and sent it back for retrial, bringing dawn to the case. During the retrial process, the judge also conducted a thorough and comprehensive analysis of the case, and ultimately adopted my defense viewpoint. He believed that the evidence for the alleged escape after a traffic accident was insufficient, and sentenced him to a suspended sentence.

When his probation was announced, Zhang and his family cried on the spot. Seeing this situation, I almost shed tears at the time. I don't know why. I haven't been so excited about winning a lawsuit for the party before, perhaps because the case was not easily changed.

【 Reflection 】

1. When handling criminal cases, it is crucial for lawyers to have a detailed and comprehensive understanding of the case and conduct theoretical analysis, in order to reflect the role played by lawyers in the middle. Generally, legal provisions only require the opening of legal provisions to know. So I believe that a lawyer with a sense of responsibility, the ability to think for the client's needs, and the urgency of the client is a good lawyer when proficient in business.

2. The shortage of judicial workers. As far as I know, there are currently a large number of cases and few personnel in the relevant judicial organs at the grassroots level. It is common for a judicial worker to handle seven, eight, or even more cases within a week, which inevitably leads to errors. In such cases, it often makes people numb, and the work is done according to the schedule, making it difficult to ensure the quality of cases. In this situation, it is necessary for lawyers to handle the case seriously and identify key points and doubts to discuss with relevant judicial staff, in order to ensure the maximum possible outcome of the case.