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项方亮律师|网约车遇到“碰瓷”的法律分析

点击次数:   更新时间:2020-08-20 17:24:08   分    享:

案例回顾 Case review

202072日晚上,王先生匆匆来到上海浦东公安分局航头派出所报案,称他是一名网约车司机,711530分,在浦东新场镇接单三名男子,要坐车前往金山。60多公里的路程,让王先生感觉接到了一个大单。车辆一直平稳行驶,快抵达目的地时,突发情况就这么来了。在金山区一空旷小路,后方一辆小客车突然从外车道超车后急刹,王先生为避免与前方车辆相撞,随即制动急停。而此时坐在副驾驶的乘客,则一头栽在前档风玻璃上,旋即称因为急刹车,头撞到了挡风玻璃头晕不已。后座两名乘客也纷纷应和要立即去附近医院就医。王先生见状立即改变行程,前往了第六人民医院金山分院。 在排队等待检查时,有3人自称是伤者的老板、同事来医院找王先生。几名同事一同围着王先生要讨个说法。而老板此时打了个圆场,称员工在上班途中受伤,可走工伤程序,只要王先生垫付检查费、误工费、营养费,后续伤者再有情况就公司一律负责。对方人多势众,王先生迫不得已接受对方提出的6000赔偿费。回家后,王先生回忆起当时车速只有40码,而自己也并未撞到挡风玻璃,总觉得事有蹊跷,遂至航头派出所报案。

On the evening of July 2, 2020, Mr. Wang hurried to the Hangtou Police Station of Shanghai Pudong Public Security Bureau to report the case, saying that he was a online car-hailing driver. At 15:30 on July 1st, he picked up three men in Xinchang Town, Pudong district, to take a car to Jinshan district. The journey of more than 60 kilometers makes Mr. Wang feel that he has received a "big order".

The car had been running smoothly, and when it was almost to its destination, an emergency came suddenly. In an open path in Jinshan District, a rear minibus suddenly overtook from the outer lane and came to a sudden stop. Mr. Wang stopped quickly in order to avoid a collision with the vehicle in front of him. At this time, the passenger sitting in the co-driver fell head-first on the front windshield and immediately hit his head against the windshield because he slammed on the brakes. Two passengers in the back seat also agreed to go to a nearby hospital immediately.

Mr. Wang immediately changed his itinerary and went to Jinshan Branch of the sixth people's Hospital when seeing this. While waiting in line for examination, three people claiming to be the boss and colleagues of the injured came to the hospital to see Mr. Wang. Several colleagues gathered around Mr. Wang to ask for an explanation. At this time, the boss played a "peacemaker", saying that employees who were injured on the way to work could go through the "work-related injury" procedure. As long as Mr. Wang paid the examination fee, lost wages and nutrition fee, the company would be responsible for any subsequent cases of the injured. There were so many people on the other side that Mr. Wang had no choice but to accept the 6000 yuan "compensation" offered by the other party. After returning home, Mr. Wang recalled that the speed was only 40 yards at that time, and he did not hit the windshield, so he always felt that something was wrong, then he went to the Hangtou police station to report the case.

        接报后,航头派出所立即会同三林公安处开展侦查工作。经民警调阅报警人行车记录仪,发现一粤牌车辆行驶至金山区一小路时,故意在道路通畅情况下超车至报警人车辆前方突然急刹,致王先生车辆被迫急停。结合报警人陈述,民警调查发现上述3人坐上报警人车辆后,该粤牌车辆沿路尾随50多公里,行至金山区路段觉得时机成熟后,自导自演了超车急刹的一幕。而医院里饰演老板员工3人正是粤牌车辆上的3人,显然早有预谋。在离开医院后,分饰各角的6人共同来到了附近饭店吃喝庆祝。不过他们碰瓷的戏码还是被民警识破。之后民警分头行动,先后将6个涉案诈骗嫌疑人抓捕归案。经审讯,6人对上述诈骗的作案事实供认不讳。目前,6个犯罪嫌疑人已被浦东警方刑事拘留。(案例来源:阳光959广播)

After receiving the report, the Hangtou police station immediately carried out investigation work together with the Sanlin Public Security Department. After the police checked the traffic recorder of the police, it was found that when a GUANGDONG license plate vehicle was driving to a path in Jinshan District, it deliberately overtook under unobstructed conditions to a sudden emergency brake in front of the alarm person's vehicle, causing Mr. Wang's vehicle to come to a sudden stop. Combined with the police statement, the police investigation found that after the above three people were reported to the police vehicle, the Guangdong vehicle followed more than 50 kilometers along the road, and when the road section of Jinshan District felt that the time was ripe, it directed and performed the scene of overtaking and emergency braking. The three people who play the roles of "boss" and "employee" in the hospital are the three people on the GUANGDONG license vehicle, which is obviously premeditated.

After leaving the hospital, six people in different roles came to the nearby restaurant to eat and drink to celebrate. However, their play of "touching porcelain" was still seen through by the police. After that, the police acted separately and successively arrested six fraud suspects involved in the case. After trial, six people confessed to the facts of the above fraud. At present, six suspects have been criminally detained by Pudong police. (case source: sunshine 959 broadcast)

案件简析 A brief Analysis of the case

本案中,犯罪嫌疑人刻意制造受伤的假象,并以此向被害人所要赔偿费,导致被害人因被假象所骗而处分自己的财物,构成了诈骗罪的主客观要件,且已经达到诈骗罪的立案追诉标准,故律师认为本案应以诈骗罪定罪处罚。

In this case, the suspect deliberately created the illusion of injury and demanded compensation from the victim, causing the victim to dispose of his property because he was deceived by the illusion, which constitutes the subjective and objective elements of the crime of fraud. and has reached the standard of filing and prosecution for the crime of fraud, so the lawyer believes that this case should be convicted and punished for the crime of fraud.

引发思索The resulting thinking

本案在实施诈骗过程中的很多行为,引发律师思考。

Due to in the process of implementation of fraud,a lot of behaviors caused the lawyer to think.

行为1:在部分犯罪嫌疑人谎称受伤后,陆续来了其他多名嫌疑人,造成人数上对被害人心里上的压制。该行为是否构成敲诈勒索罪?

Behavior 1: after some of the suspects falsely claimed to be injured, a number of other suspects came one after another, resulting in a number of Psychological compulsion of the victims. Does this act constitute the crime of extortion?

分析:从本案来看,犯罪嫌疑人虽然人数众多,但并未采取威胁或者要挟方法,致使被害人基于恐惧心理而交付财物,故本案中不构成敲诈勒索罪。

Analysis: from the perspective of this case, although a large number of suspects due to the NUMBER, but did not take threats or blackmail methods, resulting in the victim based on fear and delivery of property, so this case does not constitute the crime of extortion.

衍生分析:如果本案犯罪嫌疑人在所要事故赔偿金时,采用了威胁或者其他软暴力手段,致使被害人因为心里恐惧交付财物的,则构成敲诈勒索罪,与诈骗罪形成竞合关系,择一重罪处罚;如果本案中发罪嫌疑人使用暴力或胁迫方式,达到压制被害人使之不能反抗、不敢反抗或者无法反抗的程度,致使被害人被迫交付财物,则构成抢劫罪,与诈骗罪形成竞合关系,择一重罪处罚。

Derivative analysis: if the suspect in this case uses threats or other soft violence means when asking for "compensation" for the accident, causing the victim to deliver property out of fear in his mind, it constitutes the crime of extortion and forms a concurrence relationship with the crime of fraud,and it would choose a felony punishment. If the suspect in this case uses violence or coercion to the extent of "suppressing the victim so that he cannot resist, dare not resist or cannot resist", resulting in the victim being forced to deliver property, it constitutes a crime of robbery and forms a concurrence relationship with the crime of fraud,and it would also choose a felony punishment.

行为2:犯罪嫌疑人在公共场所紧急逼停被害人车辆的行为,是否构成以危险的方法危害公共安全罪?

Behavior 2: does the criminal suspect's act of urgently forcing the victim's vehicle to stop in a public place constitute a crime of endangering public security in a dangerous way?

分析:本案中,犯罪嫌疑人的行为虽然具有危险性,但不足以达到危害公共安全的程度,故本案不构成该罪。

Analysis: in this case, although the behavior of the suspect is dangerous, it is not enough to endanger public security, so this case does not constitute the crime.

衍生分析:什么情况下构成该罪呢?律师认为,首先犯罪嫌疑人主观上表现为明知所实施的以危险方法危害公共安全的行为会造成危害公共安全的后果,客观上表现为侵害不特定多数人的生命健康权或者重大公私财产权,危害公共安全的行为。

Derivative analysis: under what circumstances constitutes this crime? The lawyer believes that, first of all, the criminal suspect subjectively knows that the act of endangering public security by dangerous methods will cause the consequences of endangering public security. Objectively, it is shown as infringing upon the life and health rights of an unspecified majority of people or major public and private property rights, endangering public security.

律师建议Suggestions of Lawyer

鉴于各种名目花样百态的碰瓷层出不穷,作为驾驶员(尤其是网约车)朋友在驾驶过程中一定要注意遵守交通法规,不要因为一时的疏忽而违法。另外,就是行车的过程中一定要做到留痕管理,就是行车记录仪+(最好是双重保险),遇到碰瓷行为之后一定要冷清处理,及时报警,及时固定和保留证据,为公安侦破违法犯罪行为提供充足的证据。

In view of the endless emergence of various kinds of "touching porcelain", as drivers (especially on-line car hailing) friends must pay attention to abide by traffic laws and regulations in the process of driving, and do not break the law because of temporary negligence. In addition, the management of leaving marks should be achieved in the process of driving, that is, the driving recorder + (double insurance WOULD BE BETTER). After encountering the act of "touching porcelain", we SHALL deal with it in a cold way, report to the police in time, fix and retain the evidence in time, and provide sufficient evidences for the public security to detect illegal and criminal acts.

(撰文:项方亮律师   审核:费嘉彬律师  周栋斌  

 

 

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