Recently, Ma Lixi lawyer team contracted a foreign company executives Wang Moumou suspected of bribery of non-state officials (hereinafter referred to as “the crime”), a Shanghai Procuratorate to “unclear facts, insufficient evidence” for the reason of the issuance of the “decision not to prosecute”! In the end, Wang Moumou regained his freedom and resumed his normal work and life as an innocent person.

Dilemma and way out

This case involves a large amount of money, from the point of view of the amount of money alone, the judicial practice, Wang Moumou is likely to be prosecuted and sentenced to imprisonment, relative non-prosecution (discretionary non-prosecution) faced with a dilemma. The only way for defense lawyers to find a more secure way out of non-prosecution is to find another way out of non-prosecution by sticking to the key facts of the crime's elements of the crime, whether or not the evidence is complete, and strive for absolute non-prosecution (statutory non-prosecution).

The lawyer team intervened in the case, many times reading the case file materials, combing the relevant laws and regulations, reference to the criminal law expert opinion, check the same kind of referee case, strictly according to the evidence and legal provisions in the case to insist on the defense of innocence with justification. And the review and prosecution stage has submitted “suggested Wang Moumou not prosecute the lawyer opinion”, “supplementary non-prosecution lawyer opinion”. After the procuratorate twice returned to the public security organs for supplementary investigation, finally the procuratorate to "still think that a public security bureau of Shanghai found the facts of the crime is unclear, insufficient evidence, the existing evidence is not enough to confirm the non-prosecution of wang moumou mou to non-state staff to give property to the behavior of unit decision-making or personal decision, and not enough to confirm that the benefits of its undue, not meet the conditions for prosecution. The decision not to prosecute was made on the grounds that “the conditions for prosecution”.

Points of contention and defense

Common issues of contention in this offense include whether the element of “seeking an undue advantage” is present, whether the bribe-giver has obtained a trading opportunity or competitive advantage by giving the money, whether the bribe-giver has “improperly performed his or her duties,” and whether the evidence of the act of bribery is sufficient (e.g., the timing of the bribe) to establish that the bribe has been paid. Whether the evidence of active bribery itself is true (e.g. whether the time, place, number of times, amount, currency, packaging, etc. of the bribe can be corroborated with the verbal evidence of the bribe-taker and other objective evidence), and whether it is a unit crime or an individual crime.

The lawyer team's argument for the controversial issues one by one to start the discussion, such as “for the purpose of seeking improper benefits”, the active briber to pay money without specific request for matters, after paying money, there is no evidence to confirm that the acquisition of trading opportunities or competitive advantage; bribe-taker "improper performance of duty "The only evidence of the bribe-taker's side of the rhetorical evidence, apparently isolated evidence; bribe time, place, number, amount, currency, packaging, etc., between the bribe-taker and the bribe-taker there are contradictions, and the objective evidence does not match; unit decision-making or personal decision-making, through the lawyer team actively investigate and obtain evidence, combined with the Wang Moumou's income and the amount of the bribe is a large contrast between the common sense of common sense The team of lawyers actively investigate the evidence, combined with Wang's income and the bribe amount of common sense and common sense, that the act of giving money should be attributed to the unit decision-making rather than personal decision.

Ideas and experiences

Only by carefully reviewing the evidence in the case, familiarizing ourselves with the corresponding laws and regulations, clarifying the facts of the criminal elements of the alleged crime, analyzing the main points of the decisions of similar cases, and constantly learning new knowledge (such as the case held a procuratorial hearing, which gave us a first-hand understanding of the procuratorial hearing system and an in-depth understanding of the judicial practice) can we step on the right defense points and increase the chances of achieving the desired defense results. Special thanks to the two contracting prosecutors, who were professional, responsible, conscientious, and well-organized, and truly examined the case in a fair and impartial manner. In addition, the hearing officer, the people's supervisor, and the investigator in this case all performed their duties conscientiously during the hearing. They are all worth learning from. Thanks to the client's recognition, the client tweeted, “Thanks to the lawyer team, very professional, strong when it should be strong, and emotional when it should be emotional.”

Conclusion

Ma LiXi lawyer often say: "an ideal case results, can not be separated from the joint efforts of many parties. The case authorities strictly control the evidence and the law off, do not be in vain, highlighting the seriousness of justice and temperature; The party can restore the facts of the case, said the original cause, clear up the objective truth and misunderstanding; Defense lawyers try their best to do their best, seize the controversy difficult, clear defense direction and defense point. In short, any case lawful, fair and reasonable treatment, are inseparable from the judicial organs, the parties and the defense lawyers to do their respective duties and responsibilities."