I. Preface

 

At about three o'clock in the afternoon, I received a call from the police station: "The case of Ma Mou, whom you represent, will be released on bail in the afternoon, go to the detention center to collect the person."

 

The case is a Beijing municipal district branch investigated the crime of illegal absorption of public deposits, over the years I can not say a lot of non-absorption cases, only to say that quite a lot.

 

There is no lack of bail pending trial, not prosecuted, suspended sentence and other cases with particularly good defense.

 

Compared to the other cases I dealt with non-sorbent cases, the case is considered to have a certain degree of specificity, because the case is a "omission" of the facts of the prosecution of the case.

 

In this case, after in-depth communication with the prosecutor, the prosecutor's office decided not to approve the arrest.

 

The defense of the "omission" case is very likely to face the dilemma of "wolves before and tigers after", then the choice of macro-defense ideas becomes critical.

 

In this case, the idea of attracting "tigers" to fight "wolves" is the key to success in helping the client to obtain bail pending trial.

 

II. Fresh out of prison and back in the detention center

 

The protagonist of this case, Uncle Ma, was sentenced to three years' imprisonment three years ago for suspected "non-subscription". During these three years in prison, he was looking forward to reuniting with his family day and night. As time passes, three years are fast and slow, and it's time for Uncle Ma to be released from prison.

 

The day before his release from prison, Uncle Ma picked himself up neatly, calculating in his heart: "Three years, I have to let my family look at my good, don't worry about me. And I have not even seen the little grandson, I have to hug!"

 

On the day of his release, Uncle Ma said, "This day this day is really blue ......."

 

However, never expected, Uncle Ma looked at the sky, humming a little song, out of the prison door.

 

Waiting for Uncle Ma's wife and children in addition to far from being able to see, but also has been waiting for a long time to deal with the police.

 

The police told Uncle Ma: "You are criminally detained!" Uncle Ma at this time, confused ......

 

Can be described as: "just out of the fire pit, and into the water pit. Seamlessly!"

 

III. Further "wolves" - "former crimes" hearings leave "hang-ups"

 

Uncle Ma was detained again.

 

The family was introduced by a friend and found me.

 

After communication, I found that Ma uncle in the company involved in the day-to-day work is to order a bucket of water, repair electrical appliances ...... but nominally as a "regional manager".

 

The actual fact is that the actual people who have been in the marketplace for a long time have been in the marketplace for a long time.

 

Readers who have understood the non-absorption cases will immediately understand that the position and duties are disconnected, in short, "the name does not reflect the reality".

 

In criminal cases, both identity facts and behavioral facts, we have to do a substantive review. So, it is certainly wrong for Uncle Ma to be found guilty of a crime on the basis of his nominal status.

 

Then the amount of "fund-raising" that is locked in the identity of Uncle Ma must of course be re-examined for its reasonableness.

 

However, in the prosecution of the former crime, Uncle Ma chose to plead guilty to the penalty.

 

The choice to plead guilty is not wrong, but, in the context of pleading guilty, for Uncle Ma's position in the company, the amount of funds raised, and even the existence of external solicitation of investors and so on, these key facts of the controversy are all brain confessed ......

 

What is more regrettable is that the prosecution, the defense and the trial in the prosecution of the former crime in the end did not leave the "and different" point of view.

 

Whether there are operational problems with the leniency of plea bargaining in judicial practice is not what I want to focus on in this article. However, in the case of Ma's uncle precisely because of the choice of procedure, indirectly leading to the substantive facts are not fully investigated, leaving "hanging".

 

Then the question arises.

 

"Omission" case, the core facts of the previous crime, although there is a certain difference with the core facts, but the vast majority of the overlap, then the judicial officers for the legal characterization of the tendency in the prosecution can be said to have been determined at the beginning.

 

If the defense of this case on the issue of "guilt or innocence", we are faced with two major difficulties:

 

First, the case is still in the investigation stage, the evidence against the "omission" can not be seen, "a clever woman can not cook without rice" ah!

 

Second, the verdict of the previous crime has come into effect, and the defendants have pleaded guilty to serving the sentence, want to change the characterization of "omission", it is necessary for the previous verdict in the "crime and non-crime" to be negated. The difficulty of this can be imagined, so to speak: "easy to shake the mountain, shake the effective judgment is difficult!"

 

IV. One step back and there is a "tiger" - the difficulty of controlling guilty pleas and penalties

 

As mentioned above, in the prosecution of the former crime, Uncle Ma chose to plead guilty and accept the penalty, thus leaving a "loose end".

 

Then not to the "crime and non-crime" defense, but to plead guilty to punishment?

 

In response to the plea of guilty and punishment, the same dilemma is faced:

 

First, if the same defense strategy as in the previous crime - guilty plea, but admitted the crime but "buried" the fact that the objective existence of the problem, there will always be a risk of unfavorable sentence.

 

To put it bluntly, what if you are sentenced to another three years? This is also unacceptable to Uncle Ma and his family.

 

Secondly, do not plead guilty to punishment, based on the pressure of the informant, based on the basic facts of the previous crime has been the effective judgment to lock, the case is not approved the possibility of arrest can not be said to be small.

 

It's not right to admit it, and it's not right to deny it.

 

This case can be said to have "wolves" in front and "tigers" behind.

 

In the uncertainty, I found that in this case, in addition to Uncle Ma, there are four other defendants in the prosecution of previous offenses. I then deconstructed the judgment of these people, compared:

 

 

It's hard to tell without comparing.

 

Through comparison, it can be found:

 

1. the collection of funds in the region of 5 million yuan, the return of stolen goods is not in place, the case authorities decided to take measures of bail pending trial. And finally sentenced to one year and six months suspended sentence of two years.

 

2. the collection of funds in about 20 million yuan, the return of stolen goods in place, the final sentence of three years of imprisonment, and did not return the stolen goods, the final sentence of three years and two months of imprisonment.

 

It is clear that, where other sentencing circumstances such as "guilty plea" and "return of funds" are similar, the variable of the amount of funds raised determines the final sentence.

 

A sentence of probation may be imposed for collecting 5 million yuan, and a sentence of three years' imprisonment may be imposed for collecting 20 million yuan and making full return of the proceeds.

 

Combined with the facts of the "omission" of Uncle Ma, I think it is more appropriate to impose a sentence of up to one year and six months for the omission and to apply probation.

 

According to the relevant legal provisions, "omission" cases should determine the penalty for the omitted offense and then combine the penalty with that for the previous offense. Uncle Ma has already served three years of his sentence, so his actual sentence should be calculated in accordance with the method of "merge first and reduce later".

 

At the same time, if Uncle Ma's omissions are evaluated in the prosecution of the prior offense, and in conjunction with his other sentencing circumstances, and with reference to the penalties imposed in the same case, it is highly likely that Uncle Ma's sentence will be between three years' imprisonment and three years and two months' imprisonment.

 

Since the sentence was handed down by the same court and for the same series of cases, it may even be the same judge in the future.

 

Then the sentencing scale of other people is of course of great reference value to the judgment of the fact of "omission" of Uncle Ma.

 

Under such circumstances, in order to realize the adaptation of crime and punishment, the change of mandatory measures seems to have become the only choice.

 

V. Don't Fear the Tiger and the Wolf - Returning the Favor with the Other

 

The "wolves" can not afford to provoke, "tiger" can not avoid.

 

Then lead the "tiger" to fight the "wolves" may be a way out ......

 

(i) his way, the same case with the same sentence

 

A series of cases in the past other defendants in the effective judgment of the scale of punishment has been clear in mind, then the district court for the basic position of the case we can not be omitted.

 

I have thus summarized the district's sentencing in the past three years:

 

 

Through the above enumeration of the cases decided by the court and the analysis of the sentencing circumstances, it is easy to draw the following conclusions:

 

1. In cases where the other sentencing circumstances are similar to those of Uncle Ma and the amount of funds raised is around 5 million yuan, the sentence is two years' imprisonment and probation is applicable;

 

2. in other sentencing circumstances similar to Uncle Ma, the number of funds raised is around 15 million yuan, the sentence will basically choose around two years, and there is the possibility of applying probation;

 

3. in other sentencing circumstances similar to that of Uncle Ma, the amount of funds raised far exceeds 15 million yuan (some even reach the level of hundreds of millions of yuan), and as the person in charge of the company, the sentencing of some of them will also choose to be less than three years.

 

To make it clear that the heavier is the lighter, a suspended sentence for Uncle Ma is more in line with the judicial principle of "the same sentence for the same case", and it is also a practice of the principle of the appropriateness of the punishment to the crime.

 

(ii) Returning the favor

 

Although "easy to shake the mountain, shake the effective judgment is difficult!"

 

But change a way of thinking, from the previous decision to find defense ideas, with the court's point of view to convince the prosecutor's office may indeed be more "friendly" than the lawyer's own point of view.

 

This is also known as: "the other way, but also to do the same thing."

 

In the end, I through the case for the qualitative facts and sentencing facts for full deconstruction, and then by deconstructing the elements of the data comparison, combined with the possibility of sentencing for the case to grasp the accuracy of the case, so that in front of the "pack of wolves" after the "tigers", to find a silver lining. A ray of hope.

 

Uncle Ma came home on the 37th day.