送交者: 西太进士 于 October 14, 2010 20:37:18:
回答: 题目应该是:关键是中国的刑法和法官的素质问题 由 戈壁 于 October 13, 2010 09:57:07:
The elements of common law murder are:
1. the killing
2. of a human being
3. by another human being
4. with malice aforethought.[4]
The killing — At common law life ended with cardiopulmonary arrest[4]—the total and permanent cessation of blood circulation and respiration.[4] With advances in medical technology courts have adopted irreversible cessation of all brain function as marking the end of life.[4]
of a human being — This element presents the issue of when life begins. At common law a fetus was not a human being. Life began when the fetus passed through the birth canal and took its first breath.[4]
by another human being — at early common law suicide was considered murder.[4] The requirement that the person killed be someone other than the perpetrator excluded suicide from the definition of murder.
with malice aforethought — originally "malice aforethought" carried its everyday meaning—a deliberate and premeditated killing of another motivated by ill will. Murder necessarily required that an appreciable time pass between the formation and execution of the intent to kill. The courts broadened the scope of murder by eliminating the requirement of actual premeditation and deliberation as well as true malice. All that was required for malice aforethought to exist is that the perpetrator act with one of the four states of mind that constitutes "malice."
The four states of mind recognized as constituting "malice" are:
1. Intent to kill,
2. Intent to inflict grievous bodily harm short of death,
3. Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
4. Intent to commit a dangerous felony (the "felony-murder" doctrine).
Under state of mind (i), intent to kill, the deadly weapon rule applies. Thus, if the defendant intentionally uses a deadly weapon or instrument against the victim, such use authorizes a permissive inference of intent to kill. An example of a deadly weapon or instrument is a gun, a knife, or even a car when intentionally used to strike the victim.
所以说，判断“谋杀”，不是根据结果，而是根据动机和手段。而肖案符合所有murder的条件：肖犯及其同伙（a (group of ) human being）（1）理智清醒地（2）怀有恶意地（3）精心预谋策划并（4）使用致命武器（5）意图杀害二方（the other human beings）
这就是欧美普通法定义的谋杀罪。只是根据实后果，也可定为“谋杀未遂罪”，或“二级谋杀罪”。但在中国，这叫“轻微伤害罪”。
您老再给查一下，中国刑法里的谋杀罪是如何定义的。：）