The role of law is not only to regulate and enforce, but also to guide and educate, and to shape individual perceptions. However, the limitations of the law also dictate that the study, development and application of theories seek to make the law as comprehensive as possible in order to adapt and adjust to changing social relations.
Accordingly, based on the current state of women's existence, feminism has entered the field of jurisprudence in search of legal theories to address women's needs, to study and promote legal provisions that can concretize theories, and to seek the necessary legal reforms for women's substantive equality.
In criminal defense, how can feminist jurisprudential theory be used to decipher the logic of accusation and seek the lowest possible sentence? In this article, I will talk about feminism, feminist jurisprudence, and criminal defense in the context of a case I handled.
Brief description of the case
This case is a case designated for investigation by the National Supervisory Commission (CCDI) and under the jurisdiction of the Supreme People's Court, which involves a wide range of issues and has a deep background. The Public Prosecution Office did not issue a sentencing recommendation at the examination and prosecution stage, and did not organize the signing of the “Letter of Guilty Plea and Punishment”.
Defendant A, female, deputy manager of the business department and design director of a wholly-owned subsidiary of a state-owned enterprise, was awarded the title of “National May Day Woman Model”. The Public Prosecution charged her with the following offenses:
1. Embezzlement. In participating in an international project organized on behalf of the Chinese government, Defendant A, together with B, C, and D (all separately processed, all male), defrauded financial funds totaling 14,660,104,000 RMB by adopting the methods of falsely increasing and falsely declaring the cost of deferred services due to the epidemic;
2. Bribe-taking offense. Defendant A took advantage of the convenience of his position to accept the requests of D, E, F, G and other units and individuals to seek benefits for them, and accepted property totaling 518,928,000 yuan from the above units and individuals, either alone or in conjunction with others.
The court of first instance ruled:
Defendant A committed the crime of embezzlement and was sentenced to five years' imprisonment (the statutory sentence was downgraded from over ten years to three to ten years, and close to the minimum sentence);
Defendant A guilty of bribery, sentenced to three years of imprisonment (the minimum sentence within the sentencing range, the starting point of 200,000 yuan);
The decision to carry out six years and six months was made on the basis of the combination of the offenses.
The defendant did not appeal during the appeal period, and the sentence entered into force. The last meeting before leaving, she cried and bowed two 90 degrees to me and said, thank you lawyer Ma.
Defense Ideas
In the negotiation with the family of A when I clearly told, based on the current judicial practice, for this type of case often involves multiple considerations, on the one hand, increases the litigation risk, on the other hand, also for the defenders to actively carry out an effective defense added a lot of difficulty. Because of this, the practice of such cases on the adoption of the defense, more less focused on the conviction or not, but to a greater extent in the impact of sentencing.
After reading the file and meeting with A, A does not dispute the facts of the charges, but she has a lot of opinions about her position and role in the relevant charges and the motive for the crime. Because of the unfair treatment of her former leader, she had once denied herself. The recognition and reuse of her by the new leader, C Mou, made her feel the realization of her self-worth, and thus she became more conscientious in completing the tasks assigned by C Mou and did not dare to disobey.
In this case, A was assigned by C, and in accordance with the requirements of C, to produce the materials related to the fraudulent funds. After the funds were obtained, C retained half of the funds in the stock account of A, but the actual controller of the account was C. A stated that she never thought the money belonged to her, and therefore did not dare to or had never directly disposed of the funds, and that she would not dare to refuse if C attempted to get them back. Therefore, from the perspectives of intent, depth of participation, and actual control of the funds involved, A's role in the acts involved in the embezzlement charge was only secondary and auxiliary.
In the case of crimes jointly committed by the upper and lower levels of a unit, the attribution of responsibility to the lower level personnel may be appropriately lenient or even exempted because of their rank or position.
In Fa [2001] No. 8, “Summary of the National Court Working Symposium on Financial Crime Cases,” issued by the Supreme People's Court, the provisions for the directly responsible personnel may serve as a reference for arguing that A should be characterized as an accessory in this case. “In unit crimes, it is generally inappropriate to hold criminally responsible persons who have been assigned or ordered by unit leaders to participate in the commission of certain criminal acts as directly responsible persons.”
Although there is no similar provision in office crimes, this provision has certain reference and guiding value for the issue of pursuing responsibility for the formation of a joint crime based on the relationship of rank.
In the bribery allegations, D had a number of active and passive bribery exchanges with C, D was in the request of C take to A 200,000 yuan. And D's testimony clearly indicated that C asked D to “give money to things only with C docking”. Accordingly, I argued that the consent of “power and money transactions” existed only between C and D, and that the money should be C's disposal of his own bribe, a redistribution of the proceeds of the bribe, and that it was essentially the bribe received by C using his official position, and that the allegation that A was the recipient of the bribe was not in line with the unique pairwise characteristics of the bribery offence. The case is not in line with the unique characteristics of the bribery offense.
From the judgment result of this case, my above defense viewpoints to a large extent to be adopted, but this alone is not enough to argue the problems in the case. The adjudication of individual cases should achieve the unity of legal effect and social effect, accordingly, I decided to analyze the criminal motivation and internal power logic of A Mou who committed the crime by combining feminist jurisprudence theory.
Introducing Feminist Jurisprudence Theory into the Defense Perspective
Legal issues cannot be separated from humanistic society. In the analysis of the responsibility of specific cases, the status and role of the perpetrator and the motive of the crime should not be ignored. The American judge Posner once wrote in his book that if you know little about the world outside the law, you will not be able to understand and adapt to the changes of the times in the judgment of the case. In this case, if it is necessary to determine that A is an accessory, the argument that he “only played a minor role” should not only analyze how he participated in the acts involved in the case, but also need to analyze the logic behind the acts, to know why.
Therefore, based on feminist legal theory, I propose that A's behavior is both oppressed by workplace power and gender power.
Workplace power suppression in this case belongs to the modern sociological theory of “pressure through decision-making”. According to the Foucaultian view of power, the operation of power is not only unidirectional repression, but also productive and generative power, which produces automatic consent and obedience of the dominated (Cooper, 1994). In this case, A did not take part in the initiation of the criminal intent to obtain the funds, the negotiation of the method of obtaining the funds and the distribution of the funds, and he passively avoided the subsequent request by C to reconcile the accounts between A and D. However, A did not participate in the negotiation because of C's request to reconcile the accounts. However, A because of C care and grateful, and because of the rank and position to listen to its arrangements, objectively completed C asked her to complete the act of funds arbitrage. This is a typical behavioral display of power suppression in the workplace.
Gender power suppression, according to McKinnon's theory of slaughter, in a society of gender inequality, will is a dubious concept, and voluntary choice may be the result of coercion, because under the conditions of male slaughter, autonomous will is at least difficult, though not completely impossible. The socialization of gender explains the socially constructed nature of gender and the inherent power structures and hierarchies, and the concept of gendered labor is born. “A portion of gender naturally expects and demands that others provide gendered labor for themselves, and there is also coercion to force others to provide it, and most of this group are biological males, especially when these gendered identities are combined with other powers.” [1] The production of gendered labor for others occurs in all kinds of social relationships, and because gendered labor requires centering the will of others and repressing attention to the self, the provision of and access to gendered labor tends to present some kind of hierarchical relationship of power and status. In this case, C's leadership authority, mixed with gender and age advantages, formed a power suppression based on gender for A. A was in the gender of providing gendered labor in the relationship with C. She was the “female role” of gender, and thus it was difficult for C, who had the “male role,” to provide gendered labor to A. She was also in the “female role” of gender. In the relationship with C, A is the “female role” of gender, and thus it is difficult for C, whose gender is “male”, to disobey her.
Based on the above premise of dual power suppression, there is no room for the subordinate, A, to negotiate with the superior, C, in the future. Therefore, from multiple perspectives such as psychological identity and identity attributes, A has only a secondary and auxiliary role in the behaviors involved in the embezzlement charge.
Accordingly, I worked with her to determine a “partial innocence, overall misdemeanor” defense idea, and strive to achieve the overall minimum penalty defense goal.
Inside and outside the trial
At the stage of examination and prosecution, after submitting written opinions and communicating in person, the public prosecutor still did not issue a sentencing recommendation and refused to apply the system of leniency in pleading guilty and accepting punishment to A Mou. After the case was brought to court, I communicated with the presiding judge several times to express the above opinions. Fortunately, she did not refuse to communicate with me on the grounds of time constraints or that some of the opinions were not relevant to the case, but listened carefully and expressed her understanding. After the hearing and pronouncement of judgment, the judge took the initiative to tell me that A is in fact the role of an instrumental person, and that even if there were no A, there would still be X, Y, and Z, and that the sentence we had given was already the minimum.
After expressing my gratitude I did not say anything more, I think there may be a tacit understanding between us that no sound is better than sound at this time. She was able to see the reality of A's situation, and combined with common sense and common reasoning to make a just sentence, under the sword of Damocles, which is the system of lifelong responsibility for sentencing, this must be the result of careful consideration. This is not a kind of luck, I would like to call it “a wise man thinks about what he says” figuratively. The feminist perspective in this case was developed by the presiding judge by combining the triple relationship of patriarchal society, power oppression in the workplace, and gender oppression in society, and it is a practice of looking at the object from the perspective of the object, truly grasping the implicit laws of social relations, and upholding fairness and justice.
In contrast, in this case, the outcome of the pending stage, the presiding judge of the trial control but let me can not relax: serious simplification of the trial process, in the presiding court investigation to interrupt and terminate the lawyer's questioning of the defendant, saying that the relevant issues are the process of the meeting is not a court process, in the lawyer told to restore the facts through the questioning of the court is still ordered to terminate; in the stage of the court debate, interrupting the lawyer who is making comments and denying the lawyer's point of view; in the stage of the court debate, interrupting the lawyer who is making comments and denying the lawyer's point of view. At the stage of court argument, he interrupted the lawyer who was expressing his opinion and denied the lawyer's point of view; he did not listen to the analysis of the logic and motive of the act, and did not consider the reasonable doubt that could not be excluded, but only cared that the defendant had already confessed to the crime, and that the court hearing should be “concluded as soon as possible”.
Traditional criminal law theory holds that the purpose of punishment is to prevent crime. Sentencing for individual cases pay more attention to special prevention, the perpetrator not only need to prevent their recidivism through punishment, but also need to be supplemented by education, to prevent their recidivism. This requires the adjudicator to have a full understanding of the facts of the case, and to be clear about what illegal interests or needs the perpetrator is pursuing in order to satisfy, and to understand the perpetrator's motives, and then to pass a fair sentence on this basis. In this case, the presiding judge on the behavior of the motives of A ignored, but in fact, its objective on the embezzlement of money is not A to help C to embezzlement of the intention, and in the process of not even dare to resist the inner cause, is the focus of its sentencing should be taken into account.
Such as, neither can reflect the referee to the lawyer and the party's respect for the rights of the litigation, but also with the current advocate of the court hearing as the center of the requirements of a far cry. The premise of a fair judgment is to have a deep knowledge and understanding of human nature and society, a blind denial and non-acceptance will only be stuck in a rut.
Feminist jurisprudence in China has not yet formed a complete theoretical system
Feminist jurisprudence, because of its literal meaning, is naturally defined as the study of “women-related” legal issues, such as violence against women, gender discrimination, and the resulting sexual assault cases, domestic violence cases, different pay for the same work, distribution of marital property and other issues. It is undeniable that feminist jurisprudence at the beginning of its birth focused on the protection and development of women's rights and interests, and accordingly extended many schools of jurisprudence, such as Liberal Feminist Jurisprudence, Radical Feminist Jurisprudence, Postmodern Feminist Jurisprudence, Socialist Feminist Jurisprudence, and so on. The liberation movement that broke out worldwide in the 1960s brought feminism into the Western political arena, and the goals of feminism were to safeguard women's legal rights and interests, enhance women's social status, and increase women's political visibility. The concept of feminist legal theory has been born and developed since then.
After the 1995 Beijing World Women's Conference, the study of feminist jurisprudence in China entered a new era, with related centers and programs appearing in major universities and research institutes, and the study of topics related to law and gender beginning to become a relatively independent field of study, with some Western scholars' writings or articles being translated and introduced. However, when it comes to the evolution and development of feminist jurisprudence, as a branch under the specialty of law, a real theoretical structure has not yet been formed in China, and foreign theoretical systems cannot be fully applied to the current judicial situation and local conditions in China.
However, even today, women in Western societies have not really gained equality and freedom in law. In the U.S. and Japan, for example, the restrictions on female abortion, taking the husband's name after marriage, different pay for the same work, and the criteria for recognizing sexual assault cases are still issues of women's rights and interests that feminist jurists are committed to improving. In the “old revolutionary region” of France, far away from Europa, the right to abortion will be included in the constitutional amendment, even in 2024.
In our country, however, it seems that the aforementioned issues have been resolved through legislation, which has led to the formation of a gender equality model with Chinese characteristics that is different from that of Western countries. The overall significance of including equality between men and women in the Constitution is positive, but it has also allowed some non-equalizers to exploit the loopholes in the law - arguing form over substance, believing that legislative equality is real equality, turning a blind eye and a deaf ear to real inequality, and even sneering back at women for not knowing enough.
“From a postmodern perspective, law does not act solely on the individual, whether it regulates or liberates the individual through law. Instead, our understanding of the concepts of individuality, identity, and human experience is limited by language and institutions, including the law, which thus plays a role in producing, and shaping, gender.” [2] Because of this, the problem of commonality remains, namely that the male perspective of the law has never blocked the unequal treatment of women's rights and interests, but has only been disillusioned into stronger perceptions and practices committed to it. In recent years, the restrictions on the freedom of divorce imposed by the cooling-off period for divorce, the restriction on reproductive rights imposed by the three-child policy, and even the restriction on the distribution of marital real estate imposed by the latest judicial interpretation (II) of the Marriage and Family Section of the Civil Code are not the result of a backlash against women as a result of the oppression imposed by the feudal system. The basic national policy should always be implemented and practiced by the development of the market economy into the current of the times, more and more unable to counteract the old customs and cultural concepts, giving rise to the resurgence of the feudal dregs of thought, not to mention the real equal rights of men and women.
In relation to the case of this paper, why is the analysis of feminist legal theory and criminal motivation resisted?
In the case of this paper, the analysis of criminal motives based on feminist legal theory to resist, avoid, is the inherent theoretical thinking structure suffered the impact of arrogance and ignorance, and this in turn caused to affect the conviction and sentence of the important circumstances of the neglect, thus not only do not respect the defense, the defendant as a litigant's right to litigation, but also in the entity of the trial appeared on the undue “Blind spot”.
Professor Chen Xingliang has said, the study of criminal law theory can not stop at the pale and superficial notes and closed-door word games, should have a deep understanding of all areas of social life and human behavior
