Recently, Meng powder lawyers defended the manipulation of the securities market case sentencing, its agent of the first defendant Zhang Moumou was mitigated, from the sentencing of more than five years was eventually sentenced to three years in prison, from the first at the time of indictment to the third at the time of sentencing, Zhang Moumou to serve a few more months will be regaining their freedom.
First, in-depth study of the crime to build the standard system of proof
Last spring, Meng powder lawyers accept the commission for the suspected manipulation of the securities market crime of fifteen people of the first defendant defense, the case is the ministry of public security and has been prosecuted at that time, because the transaction amount has exceeded fifty million yuan, is a “particularly serious circumstances”. Lawyer and the public prosecutor communication, the public prosecutor said will be sentenced to Zhang Moumou recommended five to seven years in prison, the person is not willing to sign such a plea of guilty and punishment, the mood is extremely low, the family was also at a loss, the pressure is enormous.
The case was transferred to the review and prosecution and then changed two prosecutions, Zhang Moumou and other fifteen people's behavior is expressed as a “grab hat” trading and continuous trading manipulation of the securities market crime, involving 5 stocks, stock trading account group of 80, data volume, complex behavior and vague standards. Because the crime of securities market manipulation is more professional and complex, there are eight typical patterns, each manipulation means have their own unique behavioral elements, the need to study the criminal composition according to the manipulation model. Specifically to the case, the prosecution, defense and trial of the three parties are the first time to deal with this kind of crime, the criminal composition, standard of proof, factual evidence of the three parties have a lot of differences.
Faced with this situation, the lawyer on the one hand, read the file to understand the facts to find a defense, on the other hand, access to a large number of legal theory articles and similar cases of securities manipulation, and consult professionals in the field of securities, the purpose is to manipulate the securities market crime thoroughly, analyze and deconstruct the criminal structure, try to visualize the standard of proof, and build up a “hat grabbing”. The purpose is to study the crime thoroughly, analyze and deconstruct the structure of the crime, visualize the standard of proof as much as possible, and build up a system of standard of proof for the crime of “hat snatching”. The ultimate goal is to formulate rules to persuade the prosecution and the trial to argue whether the case can be criminalized under this system of standards of proof.
Through researching various academic papers and a large number of laws and regulations on securities, the defense started from the essence of securities manipulation crimes, and analyzed the criminal composition of hat-trading, and believed that there are two core behaviors in the manipulation mode: public stock promotion and reverse trading, but these two behaviors alone do not constitute hat-trading manipulation. Especially in this case, the layers of hiring “black mouth” hat trading, but also need to have a public stock recommendations lead to the causal relationship of securities price movements, that is, the chain of evidence in the specific behavior to meet: the perpetrator in a sufficiently public occasions to recommend the stock, recommend the stock indeed mislead the investor to misjudge the investor is based on the perpetrator of the public recommended stock information for the Purchase and sale caused by the securities price changes, and then the perpetrator conducted a reverse operation in an attempt to make a profit.
Second, the development of defense strategy to carry out a lot of defense work
After clear proof of the standard, the defense repeatedly read the file, in the specific facts and evidence and the norms of criminal composition of the back and forth between the control, the study of the securities crime criminal filing process, to understand how the linkage between a number of departments, from the Securities and Exchange Commission to the Ministry of Public Security to the Provincial Public Security Bureau to the Municipal Public Security Bureau of Economic Investigation, coupled with a special case, the defense attorney assessed that the overall results of innocence is basically impossible to insist on the results of the innocence may be entangled in the procedure to the client is very unfavorable. Procedures entangled in the client is very unfavorable. Finally formulated the defense strategy and purpose: based on the defects in the chain of evidence as well as causation proved the fragility of the factual and evidentiary level of innocence defense, in order to fight to promote the talk, looking for mitigating circumstances, will be reduced to a minimum sentence.
(A) in the factual and evidentiary defense to argue that each stock constitutes an incomplete chain of evidence of hat grabbing trading
In order to achieve the purpose of the lawyer has done a lot of defense work, examples are as follows:
1. each stock from buy to ship the period involved in the personnel, evidence view, the missing evidence in the file such as public stock promotion microblogging screenshots, live screenshots and a large number of investors testimony at a glance, confirming that the public stock promotion evidence is very insufficient.
2. Through the production of charts, looking for the submission of public trading data of the stocks involved in the case, and comparing the data before and after the manipulation, the letter of determination of the Securities and Futures Commission (SFC) and the securities analysis report, the appraisal of the strong evidence, arguing that the “SFC's determination of the letter of determination of the Securities and Futures Commission (SFC) and the securities analysis report”, the appraisal of the existence of contradictions, the logic of the process of the argument can not be self-consistent, to disprove the prosecution. Can not be self-consistent, to overturn the key evidence of the prosecution's allegations.
(ii) Facts and evidence for the defense of innocence at the same time, digging into the mitigating circumstances of the party's surrender and was recognized in court.
The case was prosecuted and did not find Zhang Moumou's surrender, but the defense attorney read the file and found that the party was investigated by the SEC a year before the criminal case, the two sides argued with the SEC staff on the spot alarm, Zhang Moumou waited for the public security organs to come in the same place and was taken away by the public security organs to ask a time, the lawyer believes that the party may constitute a surrender, but the indictment did not find that, for this reason, and the prosecutor communicated with the The public prosecutor said the party Zhangmoumou was asked by the public security organs and did not truthfully confessed to the act of manipulation of securities by grabbing the hat, the prosecuting authorities believe that it does not constitute a surrender.
To this end, the defenders special travel to obtain evidence to restore the surrender situation, was rejected by the local public security organs, and persuade the prosecution to local evidence, after repeated communication with the public prosecutor, and submitted a special legal opinion on the surrender, and ultimately, the public prosecutor recognized in court the circumstances of the surrender, the parties to mitigate the punishment of sentencing downshift provides an important hand.
Third, the defense purpose to achieve and defense experience
After a lot of defense work and with the prosecution and law many times between the limit pull, the court finally sentenced Zhangmoumou three years imprisonment. Through the handling of the case, defense lawyers believe that the handling of criminal cases in the field of securities, unlike other crimes in the financial field in the past, because of its complexity and high professional barriers need to pay more efforts to research, although hard but also enjoy it:
1. The SFC determination letter and analysis report are important evidence in this type of case, and almost the key evidence for conviction. Manipulation means relying on trading data to argue how the stock is abnormally volatile, and manipulation of securities crimes due to the trading data out of the source and the sea, the defendant and the defense, of course, can not collect and extract their own, which determines that the letter has become a kind of professional opinion, and this professional opinion is issued by the prosecution camp, so how to testify the determination of the letter is the need for skills: can be removed from the false and put aside the true, take away the data needed but from the determination of the letter itself The content of the letter of determination itself to refute its logic is not self-consistent. 2.
2. The need to focus on the excavation of mitigating circumstances in individual cases, and to find a way out for the judge to “fit the crime to the punishment”, suggests that we should properly assess the criminal risk and make a good plan for those who are still under administrative investigation by the regulatory authorities.
3. Sentence reduction although relies on the surrender, but can not say that the facts and evidence of the innocent defense is meaningless, if not in the facts and evidence of the level of adherence to the defense of innocence, continue to pressure to the prosecution, the trial, the determination of the circumstances of the surrender will be even more difficult, in fact, it is the whole of the defense strategy continues to promote, and ultimately win the defendant's minimum sentence.
Meng powder lawyers believe that all lawyers should adhere to the principle of the standard of proof should be at the level of the standard of proof, can not lower the standard of proof. The natural duty of defense lawyers is to force the procuratorate, public security, the Securities and Futures Commission, the big prosecution collectively to improve the ability to obtain evidence, and to promote the quality of the case through professional defense, which is another way for lawyers to promote the rule of law.
