Recently, Zhang Sijia lawyer accepted the commission as Ma's defense, the case is accurate characterization and issued a defense opinion, the procuratorate adopted the defense opinion according to law, Ma made a decision not to prosecute.

First, the basic case

In January 2024, MaMou for the purpose of loan, to others to provide their own bank card, then the other side to “brush single” for the reason of luring the victim to the account into 10,000 yuan. Ma mou use mobile banking in accordance with the instructions of the other transfer, found that the card funds can not be transferred, then go to the bank to consult, was told that the bank card is controlled, the bank refused to give its cash, transfer, Ma mou and to its friends after consulting was told that it may be the stolen money of the electric fraud, so that it does not move the money, Ma mou then dial 110 alarm that the bank does not cooperate with the withdrawal of money, the police police after the propaganda of knowledge of the anti-counterfeiting, and issued a police response to its A single. Mamou still the next day to the bank with the police single will be 10,000 yuan and squandered, the public security organs to the crime of theft of mamou investigation.

Second, the defense process

Review prosecution, the suspect's family entrusted ZhangShiJia lawyer as MaMou defense. After accepting the commission, the lawyer according to law and meet with the client, issued a written defense, many times with the prosecutor, participate in the plea leniency negotiation, in order to effectively defend the rights of the client and maximize the interests of the client according to law.

(A) accurate characterization, change the characterization of the crime of disguise, concealment of proceeds of crime

The application of the law that characterization issues determine the direction of the case. In judicial practice, on property crimes, the procuratorial organs to implement the criminal policy of leniency and severity, to fulfill the prosecution of the necessity of reviewing the duties, often delineate an amount of standard, decide whether to bring a public prosecution. The public security organs to Ma suspected of theft transferred for review and prosecution, the amount of 10,000 yuan, not prosecution is not in line with the local prosecutorial discretion judicial prosecution policy. In the course of duty, the lawyer consults the relevant criminal jurisprudence, combined with the theory of criminal law, from the jurisprudence, practice two perspectives, put forward this case should be characterized as the crime of disguise, concealment of the proceeds of crime, and many times with the undertaking prosecutor to fully communicate with the procuratorate to adopt the lawyer on the case of characterization of the defense opinions.

Theft is the transfer of possession of property crimes, that is, change the possession of others for their own possession, change the possession of the behavioral mode of stealing. According to the “personal deposit account real name system regulations” and other relevant administrative laws and regulations, the bank card needs to be registered and used by the person's real name. As far as the funds in the bank card are concerned, in the legal relationship between the nominal cardholder and the bank, the deposit claim is always in the possession of the nominal cardholder, and once the funds enter the card, the nominal cardholder forms the legal and de facto property possession relationship of the funds. The perpetrator refuses to surrender or refuses to return, the essence of the behavior is blatant possession, not secret, does not meet the objective elements of the crime of theft. Supreme Court No. 936 guiding case (after lending the bank card to others, lost and took the card funds how to characterize the behavior) is also clear, the crime of theft is the transfer of property control of the crime, for their own actual control of other people's property generally can not be set up for the crime of theft; criminal intent can only be generated in the possession of other people's property, control of other people's property before.

This case from the objective behavior, the possession of the state of change is caused by the criminal act of telecommunication network fraud, has nothing to do with Ma Mou; transferred to Ma Mou bank card 10,000 yuan of money since the beginning of the possession and control of Ma Mou, there is no question of transfer of possession. From the subjective intent, the card funds for their own criminal intent arises after the possession, so Ma's behavior does not constitute the crime of theft.

In this case, Ma in the so-called “loan company” will be transferred to its bank account, and did not know that the money is a telecommunications network fraud victims transferred money, Ma and telecommunications network fraud perpetrators do not exist between the subjective intent of the common crime, does not constitute a common crime. However, from the process of the entire crime occurred, Ma Mou after consulting with his friends was told that it may be the stolen money of wire fraud; call 110 police, police officers out to publicize the knowledge of anti-fraud. Ma in the subjective knowledge of the 10,000 yuan is a telecommunication network fraud involved in the case of funds, but still withdraw cash for consumption, constitute the crime of disguise, concealment of proceeds of crime.

(ii) investigation and verification, according to the law that Ma's behavior constitutes self-surrender

Read the file process found that the indictment found that Ma Mou was summoned to the case, did not determine whether it constitutes the surrender; investigation file evidence material, the arrival of the case is not specifically written in the telephone or written summons. Because of the ordinary criminal cases, judicial practice generally believe that the telephone summoned to the case, should be recognized as automatic surrender; after the arrival of the main facts of the crime, the truthful confession, constitutes the self-surrender. Meeting with the parties, the defense targeted asked about the return of the case, Ma said that the public security organs of the police telephone notification to the police station. The defense in communication with the prosecutor, reflecting this situation and apply for the procuratorial organs in accordance with the law to the public security organs to further verify the specific process of Ma's return to the case. After the procuratorial organs, the public security organs additional information issued by the public security organs, proving that Ma Mou was summoned to the case by telephone. Further reading of the file found that Ma Mou in the first interrogation statement after the return of the case, that is, a full and truthful confession from the provision of the bank card to the discovery of the card into the funds, and then after consulting the entire process of withdrawing cash for daily consumption. Accordingly, the defense issued an opinion that Ma Mou by the public security organs of the phone notification that took the initiative to come to the case, and truthfully confessed to their crimes, according to the “Criminal Law of the People's Republic of China” Article 67, paragraph 1, the provisions of the self-surrender, may be mitigated punishment. The procuratorial authorities adopted the defense opinion in accordance with the law.

(C) full performance of duties, and actively persuade Ma's family to compensate the victim's economic losses

In telecommunication network fraud cases, the upstream crimes are often not yet investigated and dealt with, resulting in the victims' economic losses not being compensated and social conflicts not being resolved. From the legal analysis, in order to safeguard the legitimate rights and interests of the victims, the perpetrators of disguising and concealing the proceeds of crime shall also bear the corresponding compensation responsibility. From the legal provisions, the supreme people's court on the application of the criminal procedure law of the People's Republic of China, the interpretation of article 139, the defendant unlawfully occupied, dispose of the victim's property, shall be recovered according to law, or ordered to pay compensation. In this case, Ma knew that the money in the bank card was the proceeds of crime but disguised and concealed it, illegally disposed of the victim's property, and should bear the responsibility of restitution. When meeting with the parties, the defense explained the relevant legal provisions and judicial precedents, he took the initiative to express his willingness to pay back the compensation; feedback with the family and explain the legal effect of the refund, and actively contacted the victim in this case, and ultimately, the victim issued a written letter of understanding, and suggested that the judicial organs of Ma Mou lighter penalties.

Third, the results

After effective defense by lawyers, the procuratorial authorities believe that Ma Mou has committed the acts stipulated in Article 312(1) of the Criminal Law of the People's Republic of China, but the circumstances of the crime are minor, according to the provisions of Article 37 of the Criminal Law of the People's Republic of China, the sentence does not need to be imposed. According to the criminal procedure law of the People's Republic of China, article 177, paragraph 2 of article 177 of the law of the people's republic of china to make a decision not to prosecute ma mou.

As a lawyer, no matter how big or small the case is, we should do our best to challenge ourselves on the one hand, and maintain the maximum rights and interests of our clients on the other.