Recently, Ms. Liang Yali, senior partner of Beijing King&Capital Law Firm and director of King&Capital Criminal Defense Research Center, was invited by the Law School of Peking University to participate in the course “Criminal Prosecution and Defense Trial Practice” at Peking University. The course is designed to help students understand the way of thinking of different professional roles in the legal community, and to cultivate students' practical ability, which is a practical course of considerable practical significance.
Co-lecturers of the course, in order of delivery: Liang Yali, lawyer; Bao Jian, Party Secretary and Procurator General of Yuhang District People's Procuratorate, Hangzhou, Zhejiang Province; Gu Shanshan, Judge of the Criminal Division of the Third Intermediate People's Court of Beijing Municipality, and Prof. Che Hao, Associate Dean of the School of Law of Peking University. Liang Yali and the other three lecturers were appointed as the external lecturers of the course “Criminal Prosecution and Defense Trial Practice” of Peking University Law School in the fall semester of 2024.
Group photo of lecturers
Prosecutor General Bao Jian (first from left), Judge Gu Shanshan (second from left), Lawyer Liang Yali (third from left), Professor Che Hao (first from right).
Prof. Che Hao (first from right) presenting the certificate of appointment to Ms. Liang Yali (first from left).
This course adopts the case teaching mode of Peking University founded by Prof. Che Hao, focusing on the case of “Gao Mou et al. accused of theft and illegal mining”.
Liang Yali's lecture
In the lecture, Liang Yali firstly made a brief introduction to the background of the case, and then combined with her rich experience in handling cases, summarized a few points of analysis from the evidence, the distinction between crime and crime, etc. as an example.
First, on the “evidence in this case”. Lawyers need to pay attention to the amount of determination, first, whether the coal has a value and its price determination method, for the relevant judicial appraisal inspection report and price determination, need to pay attention to the test applicable standards, sampling personnel qualification, test report submitted to the procedural propriety, based on the inspection report formulated the authenticity of the price determination; Second, the determination of the number of sources of the problem, whether there is an accurate, objective, and direct Quantitative evidence. If there is only circumstantial evidence, the value of the stolen or illegally mined coal shall be determined in accordance with the principle of doubt in favor of the defendant, based on the lowest price standard.
Second, on the “evaluation of the act of stealing coal”. First, we need to consider whether the behavior constitutes the crime of theft, we need to pay attention to whether the object of the crime of theft to meet the “public and private property”, “mining” and “smuggling” behavior can be divided into separate acts. Evaluation of “smuggling” as theft, and whether the mode of behavior to meet the “clandestine”. Secondly, it is necessary to consider whether the conduct meets the elements of the crime of illegal mining, including whether mining is prohibited in the mining area and whether the subjective knowledge of the crime is known.
Thirdly, regarding the “illegal mining crime and theft crime are competing legal articles”. Judging from the object of the crime, the objective aspects of the crime, based on the principle of comprehensive evaluation and the principle of prohibiting duplication of evaluation, it should be affirmed that the two crimes belong to the special relationship between the competing provisions of the law in the competition, in principle, should be used “special law priority” principle of application.
Participants in the course of the law school of north university students, in groups on behalf of the prosecution and the defense on the case of the lecture, debate, summary statement. And then, Liang Yali lawyer on both sides of the performance of the students commented on the students' clear thinking, accurate grasp of the main points of the case, language expression concise and accurate. Further, Liang lawyer for students in the use of evidence put forward suggestions, in practice, should be evidence-centered, focusing on objective evidence in the case.
Finally, Liang Yali summarized three practical rules for “when the act should be the constituent elements of illegal mining crime and theft crime at the same time, to judge whether the two realized constituent elements belong to the imaginative competing relationship or the competing relationship of the law”: firstly, the principle of comprehensive evaluation and the principle of prohibiting duplication of evaluation as a guideline to judge the actualized constituent elements; secondly, the principle of comprehensive evaluation and the principle of prohibiting duplication of evaluation; and secondly, to judge the actualized constituent elements; and secondly, to judge the realizable constituent elements. First, the principle of comprehensive evaluation and the principle of prohibiting repeated evaluation should be used as a guideline for judging the actualized constituent elements; second, whether or not the actualized constituent elements can be fully evaluated should be used as a criterion for distinguishing between competing legal provisions and imagined competing relationships; and third, the special crimes are not necessarily heavier than the general crimes. In terms of sentencing circumstances, the judicial interpretation also configured sentencing circumstances relating to ecological restoration measures to incentivize perpetrators to actively take remedial measures, which is conducive to avoiding further deterioration of the ecological environment.
Professor Che Hao, Prosecutor General Bao Jian, and Judge Gu Shanshan also analyzed the case from three aspects: doctrine, judicial practice, and relevant jurisprudence.
Group photo of debate students and lecturers
At the end of the lecture, Prof. Che Hao expressed his gratitude to the lecturers who participated in this criminal prosecution and defense practice course and issued the appointment letter to the lecturers, and the students also expressed their gratitude to the lectures given by the three lecturers, including lawyer Liang Yali, with a warm applause.
