Recently, King&Capital Law Firm, Li Song lawyers handled six criminal cases, the parties have changed the mandatory measures for bail pending trial, achieved a good stage of the defense effect, the contractors team also harvested the parties and their families highly evaluated.
These six cases involved fraud, theft, casino, assault on police, illegal public deposit and smuggling of goods and articles prohibited from import and export by the state and other crimes, because two of the cases are more controversial at the factual level, so this article will not be introduced in detail, but only on the common problems embodied in them and the remaining four cases summarized in the application of law at the level of the content of the argument and the circumstances of the defense of the issues to be briefly discussed.
As we all know, from the date of criminal detention of criminal suspects are taken as mandatory measures, until the final date of the Procuratorate review and approval of the arrest should not be more than 37 days, this period is recognized as a criminal defense of the "golden rescue period". Defenders should know how to cherish and utilize this stage, otherwise it is very easy to miss the defense of the case at the beginning of the opportunity to produce irreversible negative impact on the case. In this regard, due to the investigation stage in the early stage of the lawyer can not read the file, it is more important to accurately collect information on the case, to find and discover the defense point, and at the same time to make good use of the criminal procedure on the protection of the rights of lawyers to practice the relevant provisions of the law, in the law within the scope of the defense work for the parties to strive for factors in favor of the realization of an effective defense, to achieve a good defense effect.
In the case of a casino case defended by Mr. Li Song and Mr. Ji Ping, the suspect suspected of opening a casino was not approved to be arrested on the 33rd day of his detention by defending the case from the perspective of the application of the law.
This case involves an offshore casino related business, in the suspect was detained in the early stage, Li Song lawyer, Ji Ping lawyers first time to intervene, quickly meet with the client to understand the case, for the client's feedback of the case for the full legal analysis. This case involves the application of the old and new law and judicial interpretation of the application of the problem, directly affects the suspected behavior of the party whether the statute of limitations period.
The main points are: (factual issues omitted), the Criminal Law Amendment (XI), which came into effect on March 1, 2021, added the crime of organizing and participating in gambling in a foreign country (territory) to Article 36 of the Criminal Law. Before the establishment of this crime, the act of organizing and soliciting Chinese citizens to gamble outside the country was regulated by the crime of gambling as early as 2005 in the Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Gambling (hereinafter referred to as the 05 Interpretation); and after the introduction of the Opinions on Several Issues Concerning Handling Cross-border Gambling Crimes in 2020 (hereinafter referred to as the 20 Interpretation), according to the different ways of making profits, it was respectively criminalized by the crime of gambling and the crime of opening a casino However, this case occurred after the 05 interpretation, before the 20 interpretation, so according to "the supreme people's court, the supreme people's procuratorate on the application of criminal judicial interpretation of the time effect of the provisions of the new judicial interpretation of the implementation of the act before the act, the act of the relevant judicial interpretation, in accordance with the act of the time of the judicial interpretation of the act, but the application of the new judicial interpretation of the suspect, the defendant is favorable, the application of the new judicial interpretation, the application of the new judicial interpretation, the suspect, the defendant is favorable. The defendant is favorable, the application of the new judicial interpretation," the provisions of the same issue has different judicial interpretations, should implement the principle of the old and less severe, the application of judicial interpretations in favor of the defendant, so this case should be applied to the 05 interpretation, should not be applied to the 20 interpretation. Therefore, at most, the suspect suspected of gambling crimes, can not be identified as suspected of casino crimes, and can not be suspected of organizing and participating in foreign gambling criminal criminal responsibility. This case should apply the provisions of Amendment (VI) to the Criminal Law on gambling crimes, even if the suspect is found to constitute the crime of opening a casino, because the corresponding statutory maximum penalty is three years of imprisonment, this case has exceeded the five-year statute of limitations, and can no longer be held criminally responsible for the suspect.
On the third day of the review of the arrest period, the family was notified by the detention center that the suspect's arrest was not approved, and he was able to regain his freedom on the 33rd day of the mandatory measures.
In a fraud case defended by Mr. Song Li and Ms. Xiaoxi Li, the suspect was not approved to be arrested by arguing the purpose of illegal possession and the special "automatic surrender", as well as submitting evidence such as interview transcripts made by the lawyers.
This case is suspected of fraud entrusted investment money, the amount involves more than one million yuan, the suspect faces the possibility of being sentenced to more than ten years in prison. After accepting the family's commission, Mr. Li Song and Mr. Li Xiaoxi went to the detention center several times to meet with the suspect who was under criminal detention, and after understanding the case information, the defense lawyers believed that there was a big controversy in the characterization of the case and whether it constituted the issue of self-surrender. In this regard, the defense lawyers made a full discussion, and made a written statement to the suspect on the issue of voluntary surrender, and submitted it to the procuratorial authorities in writing.
The main content is: (factual part is omitted)
On the purpose of illegal possession
The suspect did not wantonly squander the money involved in the case, in terms of the overall behavior, he has both the will to return and the act of returning, the whole behavioral characteristics are more in line with the trustee in the relationship of entrusted investment contract. On the contrary, the criminals of fraud will not consider returning the property after fraudulently obtaining it, and therefore have no concern and restraint in the use of the property, which directly causes the loss of the property, such as using the borrowed money for gambling, drug addiction or personal squandering.
The gist of the Supreme People's Court's Criminal Trial Reference Guidance Case No. 1065 also supports this view: "with the purpose of illegal possession" is not only one of the constituent elements of the crime of fraud, but also the fundamental line distinguishing the crime of fraud from civil disputes (fraud). Distinguish between the crime of fraud and civil disputes (fraud), the following three aspects should be considered: (1) whether the perpetrator has the ability to return beforehand; (2) whether the perpetrator actively returns or negatively fails to return the behavior or performance; (3) the perpetrator disposes of the property afterward and the attitude of the property loss of others.
According to the spirit of the Supreme People's Court's "Summary of the Work Symposium on Trial of Financial Crime Cases in National Courts", the determination of the purpose of illegal possession should adhere to the principle of subject-object consistency and be analyzed on a case-by-case basis. Fraud in the behavioral manifestations of fraud and general civil fraud are fictitious, concealment of the truth of the means of deception, are to make their own side of the illegal benefits suffered by others, but not as long as the perpetrator of the method of deception can be determined that the behavior constitutes fraud. The crime of fraud and general civil fraud in the actor's actual ability to perform, purpose and manner are fundamentally different.
Therefore, even if the suspect in the actual use of the investment money on the victim to hide, but from the attitude of the perpetrator of the money obtained, it is obvious that he has the willingness to return the investment money, but also has the ability to return the investment money, the same has the behavior of the return of the investment money. Therefore, it should not be determined that the money involved in the existence of illegal possession of the purpose, its behavior is only a general civil fraud, constituting a breach of contract, it is not appropriate to determine that it constitutes a crime of fraud.
On "voluntary surrender"
After the suspect in this case found out that his bank account had been frozen, he had repeatedly communicated with the authorities by contacting the case management unit and dialing 110, establishing effective contact channels and reflecting the situation in a timely and objective manner, and asking whether he needed to go to the case management unit to explain the situation or turn himself in, but was answered, "there is no hurry" and "wait for the notice". However, the reply was "no rush" and "wait for notification", so he did not go to the public security organs on his own before he was captured.
In this regard, the defense team submitted to the procuratorial organs of the defense opinion focusing on the above facts can prove that the suspect has the initiative to cooperate with the public security organs to investigate the willingness and behavior, the behavior not only reduces the manpower and material consumption of the case-handling organs to solve the case, but also reduces the cost of the case to a certain extent, and improves the efficiency of the judiciary, in line with the relevant judicial interpretation on the identification of the situation of the initiative to surrender, the specific provisions are as follows:
According to the supreme people's court on the treatment of self-surrender and meritorious specific application of the law on a number of issues of the interpretation of the law (law interpretation [1998] no. 8), article 1 (a) of the provisions: "after investigation and verification of the fact that has been ready to go to the police, or is on the way to surrender, was caught by the public security organs shall be deemed to be automatically surrendered". And according to the supreme people's court "on the treatment of self-surrender and meritorious opinions on a number of specific issues" (Fa Fa [2010] No. 60), article 1 of the provisions: "criminal suspects with one of the following circumstances, should also be regarded as automatically surrendered: 5. Other circumstances in line with the legislative intent, should be regarded as automatically surrendered."
And the legislative intent of the surrender, is a dialectical unification of penal justice and utilitarian principles, which in the supreme people's court surrender, meritorious judicial interpretations of the case guidance and understanding of the application of this expression: "the legislative intent of the surrender, is a dialectical unification of penal justice and utilitarian principles. First, from the defendant's subjective attitude of confession of guilt, that is, the defendant's initiative to voluntarily return to the case, and strive for leniency encouragement and guidance, so as to fully realize the punishment and education purposes of the penalty. This requires that the surrender must have the initiative and voluntariness, reflecting the reduction of the defendant's personal danger. Secondly, it is considered from the perspective of judicial economy, i.e., to reduce the consumption of manpower and material resources in solving cases, to minimize the cost of handling cases and to improve judicial efficiency. The above two aspects are dialectically unified, and are the legal basis for the lenient punishment of self-surrender, and should also be the legal basis for determining whether the defendant constitutes self-surrender. Only to have a clear understanding of this legislative purpose, in order to all kinds of "surrender" behavior, accurately be clarified." [1]
In the end, the procuratorial authorities decided not to approve the arrest of the suspect, and the suspect was able to regain his freedom.
Li Song and Chen Zirong provided defense for a theft case, through repeated communication with the victimized unit, efforts to recover the stolen goods and save the loss, and obtained the understanding of the victimized unit during the review and approval period, and the suspect was not approved to be arrested in the end.
This case is suspected of employee theft of the unit's property, after accepting the family entrusted, Li Song, Chen Zirong lawyers went to the detention center several times to meet with the suspect was criminally detained, to understand the case information, defense lawyers believe that the case in the factual findings and the application of the law level is not controversial, so whether it is able to timely pay back the compensation, to obtain the understanding of the unit became the focus of the matter to be considered. After determining the defense strategy, the defense lawyers coordinated with the family on compensation and understanding matters for many times, and before the end of the period of review and arrest, the full amount of compensation was refunded and a written understanding was obtained from the victim's unit. At the same time, the defense team argued for the characteristics of the suspect's crime, the suspect's previous performance, and the suspect's performance after the incident, etc., and hoped to strengthen the possibility of obtaining the suspect's release on bail pending trial.
In the end, the procuratorial authorities decided not to approve the arrest of the suspect, and the suspect was able to regain his freedom.
Mr. Li Song provided defense in an illegal public deposit case, and the client was not approved to be arrested in the end.
This case involves a common company salesman suspected of illegally absorbing public deposits, after accepting the family's commission, Mr. Li Song went to the detention center several times to meet with the suspect under criminal detention to understand the case. During the review of the arrest of the following comments: this case is a joint crime, the suspect did not participate in the whole process, should only be responsible for the part of the criminal amount of their participation. In addition, the suspect has a number of legal or discretionary mitigating or reducing circumstances, including but not limited to: (1) accessory to the crime, (2) confession, (3) voluntarily pleading guilty and accepting punishment, (4) voluntarily surrendering the full amount of the proceeds of the crime, (5) a first time offender, and (6) according to the principle of "from the old and from the young", the Criminal Law as amended in 1997 should be applied, and so on. The suspect's social dangerousness should be taken into account in the request. Combined with the suspect's social danger, requesting the procuratorial authorities not to approve the arrest of the suspect, and change the mandatory measures to release on bail pending trial.
In the defense opinion, the defense especially pointed out that the record of the suspect's salary income in the interrogation transcript of the investigating authorities was incorrect, and that it was derived by the investigators on the basis of their own understanding, and that the actual amount of the illegal income was derived according to the clues provided by the suspect. In the end, the case-handling authorities did not require the suspect to pay back the higher amount previously stated. Upon the expiration of the period for review and authorization of arrest, the suspect was not authorized to be arrested and regained his freedom.
In summary, 37 days of "golden rescue" time, must know how to cherish and utilize, otherwise it is very easy to have irreversible negative impact on the case. Through the understanding of judicial policy, defense lawyers can use the Criminal Procedure Law and other laws and regulations of the relevant safeguards, within the scope of the law for the client to strive for all favorable factors, so as to achieve effective defense.
"The pursuit of excellence, not to be entrusted" is the motto of every King&Capital lawyer, the road of criminal defense, will certainly move forward.
Notes:
[1] Reference: the supreme people's court criminal division, edited by Zhang Jun, Huang Ermei editors: the supreme people's court surrender, merit judicial interpretation case guidance and understanding and application of the law press 2012 edition, page 16.
