Recently, Meng powder lawyers acting on behalf of the bribery case of the first trial verdict, the party's sentence from the initial sentencing recommendation of four and a half years was reduced to two and a half years, the full realization of an effective defense, the party and his family are more satisfied with the non-appeal.
The cause and process of the case
The defendant in the bribery case and the public official (hereinafter referred to as the “bribe-taker”) set up a company specializing in demolition projects. At the beginning of the case as a witness was called to testify by the Supervisory Commission, the defendant admitted that he had given the bribe-taker 2.5 million yuan of company profits, and then the bribe-taker was sentenced to seven years' imprisonment for the crime of accepting and giving bribes. Because the defendant and his family do not know the law, and the Supervisory Commission has not been retained, the defendant has always felt that he will not be transferred to criminal processing, and even by the local procuratorate bail pending trial after consulting the local lawyers also think that the problem is not too big, not knowing that 19 days after the arrest of the Procuratorate directly. After the arrest, the person concerned in the examination and prosecution of the period also confusedly agreed to sign a four-and-a-half-year sentence of guilty plea and punishment. After the case prosecution transferred to the court, the parties and their families feel that the sentence is too heavy to accept, and find King&Capital professional lawyers to intervene in the first two weeks of the trial.
Is it a cooperative business or power and money transactions
Meng powder lawyers accept the commission in two weeks time, comprehensive reading, many times to meet with the parties, combing line, bribe things, found that the case has a lot of doubt: for example, the bribe-taker is in charge of the control of the company, and participate in the company's day-to-day operation and management, the company's distribution of profits is also the bribe-taker control, etc., according to the 2007 “the supreme people's court, the supreme people's procuratorate on the handling of the criminal case of accepting bribes of the application of several issues of law” and “the communist party of china”. According to the 2007 “Supreme People's Court, the Supreme People's Procuratorate on the application of law on the handling of criminal cases of passive bribery” and the “Communist Party of China Regulations on Disciplinary Actions”, the power and money trading of active and passive bribery and the public official violation of the handling of business enterprises are fundamentally different, the details of this case, combined with the defendant's confession does not exclude that the party and the bribe may be “cooperative business model”, if it can be determined that the bribe is a violation of the business enterprises Cooperation with the bribe-taker company, of course, the bribe-taker does not constitute the crime of bribery.
However, in practice, the official status of the person found to be in violation of the business enterprise non-bribe evidence standard is very high and very few cases, and in this case the bribe-taker has been on the 2.5 million yuan of bribery facts were found by the court, this case to determine the difficulty of cooperative business is indeed very large, but the meeting with the defendant repeatedly emphasized that he testified to a lot of factors by the misguided, did not factually reflect the two sides of the cooperative business, now it is too late to regret, if the defendant is found to be in violation of the law, he will not be able to take any action. Now it is too late to regret, if he was sentenced to four and a half years for bribery, he really can not accept.
At the same time, the prosecution of the case is very special point in time, the prosecution of the case when the Criminal Law Amendment XII has not yet been implemented, the prosecution of the court has just been implemented, the Criminal Law Amendment XII, although the overall increase in the crackdown on active bribery, but the statutory penalty for the crime of active bribery has been adjusted, the first grade of the sentence from 5 years to 3 years, that is, if more than 1 million yuan of bribes less than 5 million yuan, the sentencing of its The starting point from three years, compared with the original bribe of more than 1 million from five years is considered to be lighter, therefore, based on the principle of both the old and the light, the prosecutor's office of the case of the bribe four and a half years of sentencing is indeed too heavy.
Fighting to promote the negotiation of the sentence halved
Comprehensive analysis of the case after the pros and cons of the evidence, defense lawyers from the family before the trial to retrieve the company's industrial and commercial registration and settlement card bribe signatures and other details of the documentary evidence, the case may not be excluded from the court of “cooperative business” doubt, the case problems and the main defense viewpoints were elaborated:
1. From the registration of the cooperative company to the signature of the settlement card, and even the daily project management and profit distribution are the bribe-taker's hand to develop, can see that the bribe-taker's intention is to run a business enterprise, so this case does not exclude the two sides is a cooperative business rather than active and passive bribery relationship;
2. the bribe-taker did not have the authority to decide to whom the project should be given, so the party concerned could not seek undue advantage through the bribe-taker's job convenience, and the small-scale demolition project did not need to go through bidding, so there was no such thing as destroying the fair competition environment to seek undue advantage;
3. the party's defense is supported by evidence: its confession who gave himself project information, the back of the demolition project can be given to the intermediary fee, the party in another area of the demolition of the project, there is a bribe introduced by the bribe, but the bribe received this part of the profit is not recognized as the amount of the bribe, indicating that there is a cooperative relationship between the two sides;
4. because has not been paid registered capital, the bribe has been lending money to the company turnover, and from the beginning of the establishment of the company bribe lent to the company 800,000 yuan, which the two sides confessed to each other, and the indictment has been recognized, do not rule out the bribe is essentially an investment in the company.
In addition to the above factual evidence level of defense, defense lawyers also pointed out from the aspect of sentencing, this case constitutes a self-surrender, the Supervision Commission on the bribery case has been truthfully accounted for all the facts can be mitigated from light punishment and so on.
At the end of the first trial, the prosecution and the law said to verify the above new evidence. Thereafter, the local Supervisory Commission retrieved the new evidence to the court, the court held two more evidence verification procedures. During this period, in response to the weakness of the evidence, the defense lawyers communicated with the judge several times to fight for talks, and proposed to the judge to reduce the punishment to less than three years, and finally the court agreed to the sentencing negotiation and sentenced the person concerned to two and a half years' imprisonment.
The case of the defendant's experience generally reflects the current job crime category of people involved in criminal legal awareness of the hazards of weak: in the bribe-taking people are supervisory committee investigation, still do not know they have been involved in criminal risk, did not seek legal help, resulting in the witness period of the testimony does not reflect the fact that the whole picture of self-incrimination, and a lot of unfavorable evidence has long been fixed so that the space for the defense has been dramatically compressed; when the consequences of the punishment of severe punishment immediately come to Temporary only to find a professional lawyer to intervene, the defense has become more difficult, this is also a lot of parties to the general experience.
The current “supervision law” (draft amendment) is open for comments, although added a lot of new mandatory categories such as “forced to the case, ordered to wait for the investigation, custody” investigation measures, intuitive feeling is more strict punishment of criminal behavior, but the draft also added a: “guardianship, detention The person under guardianship, the detained person and his close relatives shall have the right to apply for a change in the custody and detention measures, the supervisory organ shall make a decision within three days after receiving the application, and if it does not agree to change the measures, it shall inform the applicant of the change and state the reasons for not agreeing to the change”. This article obviously provides an opportunity for the parties and their families to appeal, the parties and their families should seek the help of professional criminal defense lawyers in advance, to figure out whether they are the criminal act of bribery or disciplinary violations, so as not to enter into the misconception of self-incrimination, resulting in increased difficulty in self-incrimination at a later stage.
Translated with DeepL.com (free version)
