Recently, Xu Wei, a lawyer acting on behalf of a network service provider L is suspected of helping the letter of the crime of the second instance of the case, this case has lasted nearly four years, only the second instance lasted more than a year, during which the second instance court has repeatedly reported to the supreme court for approval of the extension of the trial period, and ultimately the court of the second instance that some of the facts of this case are not clear, the evidence is insufficient, made a reversal of the original judgment, the ruling of the remand.
I. This case was supervised by the Ministry of Public Security and involved a wide range of cases, making it difficult to defend.
In recent years, the number of cross-border gambling crimes has climbed, causing huge losses to the country, the Ministry of Public Security led the establishment of the mechanism of the Leading Group for Combating Cross-Border Gambling, also known as the “122” mechanism. This case is a case under the supervision of the “122” mechanism, and a special task force has been set up in a designated city or district to investigate the case, so as to eliminate all those who provide assistance to offshore casinos in the country, including gaming companies, Internet access companies, and companies providing payment and settlement.
The party in this case L for a network service provider general manager, because of its agent for overseas famous gambling website to provide network technology services, the investigating authority will service provider and agent company members are suspected of opening a casino crime investigation, after the procuratorate to help the information network criminal activities of the crime of prosecution, the court of first instance that the L and others constitute the crime of helping the letter, and were sentenced to imprisonment ranging from 2 years and 10 months to 2 years and 6 months.
Second, the lawyer unswervingly not guilty defense, subjective and objective analysis of the reasons for acquittal
Lawyer since the first trial accepts the commission, L and his company employees are unwavering claim of innocence. After the court of first instance made a guilty verdict, L continued to entrust Xu Wei team of lawyers to do the innocent defense.
In the second trial, the defense focuses on the facts found in the first instance verdict, and argues that the facts of the case as stated in the first trial are wrong, objectively speaking, L's official behavior does not constitute the crime of helping the letter, and subjectively speaking, it is presumed that L has the subjective knowledge that the law is unfounded.
1. The company in question provided normal network services, which was a neutral technical behavior rather than an active criminal act.
The company in question is a well-known IDC and ISP service provider in the eastern region of China, which utilizes its own technology to provide customers with Internet access, server hosting, DDoS high defense and other network services. Therefore, in terms of objective behavior, the network technology services provided by L itself does not have a criminal offense.
2. The court of first instance found that L and others had subjective knowledge of the wrong application of the law
In this case, there was no criminal collusion between L and the agent's customers, and the court of first instance could only argue that L had subjective knowledge through other indirect facts. However, the presumption is not in line with the current judicial interpretation of the crime of helping the letter can be presumed to find subjective knowledge of the situation, is the product of the presumption of guilt. The defense in the statement of defense of the first instance judgment that can be presumed that L has subjective knowledge of the facts one by one, argued that the presumption is wrong.
Third, the second trial prosecutor in court that part of the facts of the case is unclear, insufficient evidence
Prosecutors believe that the judgment of the first trial to L and others in the process of long-term business are different degrees of knowledge of the existence of gray and black production, and thus presumed to know the hosting of the company's servers in the illegal site of the point of view on the provision of Internet services to the enterprise is too demanding, the company did not form a grey production with the customer to help and to be helped by the meaning of the liaison, and has done its duty of care in the Internet police investigation of the case to retrieve evidence When investigating the case and retrieving evidence, the company complied with the instructions of the Internet police and cooperated with them, so it was not appropriate to find that it constituted a crime.
Fourth, the court of second instance ruled to set aside the original judgment and remanded for retrial.
During the second trial, in order to explain to the panel the technical attributes of the business of the company involved, the defense made a separate list of the facts of the case, and showed the panel the background of the case in writing, such as the basic situation of the IDC and ISP industry, the situation of L's employment, and the basic situation of the IDC service agent, etc., in order to avoid the “technical bias” and “preconception”. “Preconceived notions.
In the end, under the defense's efforts, the court of second instance adopted the defense's opinion and ruled to revoke the original judgment and remanded the case for retrial, and L expressed his recognition and satisfaction with the professional defense work of Xu Wei's team.
