Six people from a certain province were criminally detained by Shanghai police because of suspected fraud. Beijing King&Capital (Shanghai) Law Firm partner Zhang Qingsheng, partner Yang Bailin, lawyer Yuan Shaoguo, lawyer Guo Hepu, lawyer Cai Yu, lawyer Lu Xianghui were entrusted by the family to carry out the defense work. After the intervention of the lawyers through the meeting and to the case manager to understand the brief case, to the case manager to put forward does not constitute a crime of the defense and change the application of coercive measures, was adopted by the case manager and for the release of bail pending trial.

Six people were detained in a trading scam, and all of them were released on bail after defense.

This case is related to carbon emissions trading. In October 2011, the National Development and Reform Commission (NDRC) issued the Notice on Carbon Emissions Trading Pilot Work, approving seven provinces and municipalities, including Beijing, Shanghai, Tianjin, Chongqing, Hubei, Guangdong, and Shenzhen, to carry out carbon trading pilot work.2024 On February 29, 2024, the National Bureau of Statistics (NBS) issued the “People's Republic of China Statistical Bulletin of the National Economy and Social Development for the year of 2023 , with a turnover of 212 million tons of carbon emission allowances and a turnover of 14.44 billion yuan in the national carbon emissions trading market in 2023.

The six persons charged with the crime of fraud were involved in guiding others to participate in carbon emission rights trading in order to earn commissions. Because the same law firm accepted the entrustment of two or more suspects and defendants in the same case and assigned different lawyers as defenders, the firm strictly followed the provisions of the Lawyers Law, the Criminal Procedure Law, and the Norms for Lawyers Handling Criminal Cases to determine the entrustment relationship and carry out the defense work after informing the entrusted person of the situation and obtaining consent.

Defense lawyers in accordance with the defense rights granted by law, to carry out investigation and evidence collection, meet with the work, by listening to the client's statement of the specific circumstances of the case, clarify the case, understand the subjective understanding of the client's involvement and purpose, motivation, the formation of the facts of the case and the application of the law of the comprehensive legal opinion, including the act does not establish fraud and no detention necessary and other points of view, and based on this to produce The application for change of compulsory measures is submitted to the case-handling unit in accordance with the law.

The case unit in ascertaining the facts of the case and listen to the opinion, the last day of the expiration of 30 days of criminal detention, for the six people involved in the case for bail pending trial.

The main work of the investigation stage lawyers can carry out defense

The investigation stage is the first stage of a criminal case, is the investigation organs focus on evidence collection important litigation stage, the suspect in the first time to receive interrogation or be taken coercive measures on the date of the right to appoint a defender. Defense lawyers should carry out timely defense work during the 37-day golden rescue period to strive for the most important real-world interests of their clients.

The work that the defense can carry out in the investigation stage mainly includes:

First, apply for changes in coercive measures.

Compulsory measures are related to the personal freedom of the suspect, especially just involved in the case when the choice of coercive measures directly affect the suspect's participation in social life will be cut off because of the case. The investigation stage is to decide the arrest of criminal suspects and the key links, defense lawyers should be early grasp of the case, take the initiative to collect evidence and materials, put forward, argue or prove that the suspect does not constitute a crime, or not socially dangerous, there is no need for detention of the opinion, for non-custodial coercive measures or lifting of coercive measures.

Second, the investigating authorities to understand the suspect's suspected offenses and the relevant circumstances of the case, and put forward opinions.

During the investigation, the defender does not have the right to read the file, the case handler is obliged to protect the lawyer's right to know to a certain extent, including the charges and the relevant circumstances, but also can put forward relevant opinions. Opinions at this stage, mainly including the application of the charge of objection, suggest that the case unit in accordance with the social danger and detention necessity of taking compulsory measures, directly affect the direction of the investigation and the client's detention or not, to guide the case towards the next step to achieve the effect of the defense to lay a good foundation.

Third, meet with criminal suspects in custody and under residential surveillance.

During the meeting, assistance can be provided to the criminal suspects, mainly including legal counseling, informing and explaining basic litigation rights, providing legal counseling on coercive measures, providing legal counseling on interrogation by the investigating authorities, and providing legal counseling on the composition of the crime and the evidence, etc. These contents are crucial for the criminal suspects who need to be interrogated by the investigating authorities for many rounds, and the confessions formed during this period will become the main basis for accusing and confirming their own behavior. become the main evidence for accusing and confirming one's behavior, therefore, comprehensive and accurate legal assistance is crucial to the protection of the rights of criminal suspects.

Fourth, the collection of evidentiary materials that can confirm the innocence of the criminal suspect, the minor nature of the crime, the lack of necessity for detention, and the lack of material damage caused to the victim.

Evidence is the basis for determining the facts, better, more effective defense needs evidence to prove the defense opinions and views, verbal arguments and opinions are not as persuasive as the evidence material, lawyers should be proficient in investigation and evidence collection skills, clarify the investigation and evidence collection rights and the right to apply for the investigation and evidence collection rights of the boundaries of the right to the full collection of evidence and materials, within the scope of the rights in accordance with the law, investigate the situation, and for the handling of the unit of the lawful, reasonable, Sensible opinions.

(e) Examining the property that has been seized, detained or frozen, and applying for the lifting of the seizure, detention or freezing if it is not relevant to the case and cannot prove the facts of the case.

During the period of investigation, the investigating authorities may take measures to seize, detain or freeze property owned by the criminal suspect, but such measures must be taken in strict accordance with the provisions of the Criminal Procedure Law. Article 141 stipulates that all property and documents found in the course of investigative activities that can be used to prove the guilt or innocence of a criminal suspect shall be seized or impounded; property and documents unrelated to the case shall not be seized or impounded.

In practice, the case officer may be for other purposes and the seizure, seizure, freezing of property suspects, seizure, seizure, freezing of property may not be used to prove the guilt or innocence of the suspect, or even unrelated to the case. However, if such property is seized, detained or frozen, it may lead to a serious impact on life and production, so it is necessary to file objections and applications to request timely rectification of the illegal behavior.

VI. Providing legal assistance to criminal suspects.

Legal assistance is a broad concept, including legal counseling and other practical assistance, such as help in collecting evidentiary materials, help in filing other civil lawsuits, and help in dealing with other matters.

(vii) Representation for complaints and accusations.

During the investigation, the investigating authorities will take investigative measures to collect evidence, investigative measures such as seizure, detention, search, etc., may directly violate the personal rights of criminal suspects, property rights, for the investigating authorities intentionally or negligently violate the law investigation, defense lawyers need to help criminal suspects on behalf of the complaint, indictment, to safeguard and restore the violated rights.

Defense lawyers can complain or sue the investigating authority and its staff for the following acts:

(i) Failure to lift or change the compulsory measures or release the criminal suspect when the legal period for the adoption of compulsory measures has expired;

(ii) Failure to return the deposit for bail pending trial when it should be returned;

(iii) The adoption of measures to seize, detain or freeze property unrelated to the case;

(D) Failure to lift the seizure, detention or freezing of property that should be lifted;

(E) Embezzlement, misappropriation, misappropriation, switching or other violations of the provisions of the use of seized, seized, frozen property.

(viii) Reviewing the jurisdiction of the case on behalf of the court and submitting an application to object to the jurisdiction on behalf of the court.

The public security organs for criminal cases procedural provisions of the public security organs for criminal cases jurisdiction rules, level, territory, type of case will affect the jurisdiction of different units and regions for the determination of individual cases and hearings will have different rules, there are different handling habits, defense lawyers need to master the rules and choose the suspect's favorable strategy.

Nine, examine whether the case handler has to be recused, and in accordance with the law to request recusal, application for reconsideration.

Judges, prosecutors and investigators shall recuse themselves if they have one of the following circumstances, and the parties and their legal representatives also have the right to request them to recuse themselves:

(a) He is a party to the case or a close relative of the party concerned;

(B) He or his close relatives and the case has an interest;

(C) Has served as a witness, expert, defender or litigation agent in the case;

(d) He or she has other relations with the parties to the case that may affect the fair handling of the case.

Judges, procurators and investigators shall not accept treats and gifts from the parties and their clients, and shall not meet with the parties and their clients in violation of the regulations.

Judges, procurators and investigators who violate the provisions of the preceding paragraph shall be held legally responsible in accordance with the law. The parties and their legal representatives shall have the right to request them to recuse themselves.

The defender and litigation agent may request recusal and apply for reconsideration in accordance with the provisions of this Chapter.

X. Other defense work not prohibited by law.

Generally believe that the suspect's procedural rights and the defender's rights should be limited to the scope of the law, lawyers involved in criminal proceedings need to comply with laws, regulations, rules, but the suspect and the defense lawyer's right to defense belongs to the right of privacy, private rights, “law is not prohibited that is free”, as long as the rights are not explicitly prohibited, should be a feasible behavior. Should be feasible behavior. Defense lawyers should have the ability to recognize the rights, identify the risks, choose the program, faithful to the client's commission, for the interests of the client to fight for the legitimate rights and interests.