Recently, by the Beijing King&Capital Law Firm Luo Hongzheng, Zheng Xuan lawyers jointly undertaken a bribery retrial case achieved remarkable defense results: the court fully considered the defense opinions, made significant adjustments in sentencing, according to the law will be the original trial of the actual sentence (four and a half years) changed to a suspended sentence. This result was achieved through professional, systematic and well-reasoned defense strategy under the premise that the defense attorney did not give up the defense of the crime.
I. Background of the case
Remanded for retrial, limited defense space but clear strategy
This case is a joint bribery case, the parties were accused of bribery accomplices, the original first instance had two sessions, after the verdict, the defendant appealed against. The court of second instance, after reviewing the original judgment, held that there were “unclear facts and insufficient evidence”, and ruled in accordance with the law that the original judgment should be set aside and remanded to the court of first instance for a new trial. Such remanded cases often face double pressures: firstly, the prosecuting authorities usually stick to their original accusation position, making it difficult to make sentencing adjustments; secondly, the courts also tend to fine-tune their handling within the established framework, making it difficult to overturn the original judgment. In this context, Luo Hongzheng, Zheng Xian lawyers accepted the client's commission, the two lawyers did not take a conservative strategy because of the “retrial”, after full discussion and assessment, established the “adhere to the crime objection, solid sentencing basis, dual-track and promote” defense approach. Defense policy.
They realized that even though it was extremely difficult to change the charges, the only way to shake the foundation of sentencing and open the way for probation was to completely deconstruct and overthrow the logic of the prosecution from the elements of the crime.
Pre-trial Preparation
Promoting consensus through professional communication and showing the truth through field evidence
Since the case was remanded for retrial, the two lawyers invested in intense preparation work, placing the focus of defense before the trial.
On the one hand, they took the initiative to carry out professional dialogues and systematically submitted opinions on the objections to the charges.
After the case was remanded for retrial, the two lawyers repeatedly communicated with the prosecutor and the presiding judge on the characterization of the charges in a professional and frank manner, and submitted reference cases to argue on the basis of reason.
In the meantime, Mr. Zheng Xian wrote a detailed Legal Opinion, systematically combed through the evidence and legal provisions in the case, and strictly argued on the basis of Article 385 of the Criminal Law on the constitutive elements of the accomplices of the crime of passive bribery, as well as Article 191 of the applicable standards of money laundering crime item by item. The submission implores the prosecuting authorities to re-examine the logic of the charge and adjust the offense in accordance with the law. Although the procuratorial authorities are still prosecuted with the original charges, but this professional, firm objections to the charges did not fall through - it successfully guided the panel to focus on the trial from “whether it constitutes a crime” to "what exactly constitutes a crime? “and will” whether there is complicity and conspiracy “how to define the nature of the act” and other core disputes at the center of the trial review. It is this in-depth questioning of the application of the law that lays a solid foundation of reasoning for the subsequent probation in the sentencing process, and also highlights the unique value of criminal defense in promoting judicial precision.
On the other hand, in-depth business line, restore the real social picture.
In order to comprehensively reflect the defendant's social role and business reality, Luo Hongzheng lawyers traveled to the defendant's parents led the defendant to establish the headquarters base and branches of the enterprise field visits, shooting and collecting a large number of photographs and videos, covering the enterprise's patent certificates, development history, qualification and honorary certificates, the operation of the workshop, the production of processed products, and the key customers to provide services to obtain a letter of commendation, and touching scenes of providing services to customers. The significance of these materials submitted to the court as background evidence is not to deny the facts of the accusation or avoid legal responsibility, but to convey a clear and important message to the court: he is not only a defendant in a criminal case, but also the actual controller and the main person in charge of a private enterprise rooted in the local community and operated in accordance with the law.
In the current policy context of optimizing the business environment and protecting the legitimate rights and interests of private enterprises, the personal freedom of an entrepreneur is often directly related to dozens of employees' jobs, the livelihood security of hundreds of families, and even the stable operation of the local industrial chain. Through this group of intuitive, real images and documentary evidence, defense lawyers hope that the court in accordance with the law at the same time, through the provisions of the law to see the specific person, through the criminal behavior to see the social relations behind the network, so that in the sentencing to fully consider the application of non-custodial sentence of the reality of the foundation and the positive significance of the criminal law to achieve the purpose of punishment and education, and avoid the “to deal with” the criminal law. purpose of punishment and education, but also to avoid the secondary damage of “one case, the collapse of an enterprise, unemployment of a group of employees”.
This evidential strategy reflects the transformation of criminal defense from “confrontational” to ‘constructive’, and is also in line with the Supreme People's Court's repeated emphasis on “precise application of coercive measures and penalties to minimize the impact of judicial activities on normal production and operation of enterprises”. The Supreme People's Court has repeatedly emphasized the judicial orientation of “precise application of coercive measures and penalties, and minimizing the impact of judicial activities on normal production and operation of enterprises”. During the period, they applied for access to the two main members of the upper parade of bribery crimes in another case, from which combing, refining the facts and evidence favorable to the defendant's conviction and sentence. Thereafter, the two lawyers work together to retrieve cases, regular communication, the development of the trial division of labor, waiting for the arrival of the trial.
Third, the trial exchange
Stick to the bottom line of objections to the charges, and pragmatically strive for leniency in sentencing.
On the day of the trial, the prosecution presented a number of sets of evidence around the composition of the crime of bribery, and emphasized the seriousness of the fight against corruption in the court education session. In the face of this situation, the defense lawyers adopted a two-tier defense strategy of “not giving in on characterization and being rational and pragmatic on sentencing”.
In the court investigation and debate stage, the two lawyers bright viewpoints, reiterated the charge of objection, a clear position: do not recognize the prosecutorial authorities on the defendant constitutes bribery accusation of accomplices. They closely follow the elements of the crime, from the “subject identity”, “criminal intent contact”, “behavior point”, "benefit attribution From the dimensions of “subject identity”, “criminal intent contact”, “point in time of the act”, “benefit attribution”, etc., they systematically argued that the defendant's behavior lacked the subjective intent and objective synergy of joint passive bribery, and that it should not be included in the evaluation of passive bribery.
While insisting on the objections to the crime, they did not avoid the issue of sentencing, but synchronized the construction of a complete and pragmatic system of argumentation for the application of probation, covering the attitude of guilty plea, refund performance, the circumstances of the first offense, the assessment of social harm and the feasibility of community corrections and other key elements.
Due to the significant differences in the views of the prosecution and defense, the trial debate was unusually intense. At the end of the first round of debate, the presiding judge accurately summarized the core points of contention of the case and decided to organize a second round of supplementary debate. In this key section, the face of the prosecutor reiterated “the defendant is in the bribery behavior is not complete intervention, should be recognized as an accomplice” allegations, Luo Hongzheng, Zheng Xian lawyers in court one by one to respond.
This kind of “first break and then stand, soft and strong” defense strategy not only shows the lawyer to the legal principle of adherence, but also reflects the respect for the judicial reality, won the panel's highly recognized.
Fourth, the results
Although the charge was not changed, but to achieve the core defense objectives
After careful deliberation, the court finally made a judgment: to maintain the characterization of the crime of bribery, but the circumstances of the whole case, according to law, sentenced to three years' imprisonment, suspended for four years. The defendant was released from the detention center after more than ten months in custody, and embraced and cried with his family after a long time.
This result did not realize the change of charges, but substantially achieved the purpose of the defense, to avoid the actual detention, to preserve the integrity of the family and the survival of the enterprise. More importantly, the court in the judgment clearly responded to a number of sentencing circumstances proposed by the defense, and “complicity in the determination of” the issue of detailed reasoning, reflecting the full importance of the defense. This is not only the judicial organs to practice “leniency and severity” criminal policy embodiment, is also a lawyer's professional value of strong affirmation.
Five, extend the thinking
Officials and business contacts can not be avoided, but the legal red line can not be crossed!
Although the case ended with probation, but the lesson is extremely profound. At present, the state insists on the implementation of the whole chain, two-way fight against corruption. This means that not only public officials accept property constitutes a crime, private enterprises or individuals to seek undue benefits and give property, or in the knowledge of the situation for public officials to accept property to provide assistance, transfer of stolen funds and other behavior, may also violate the criminal law, constituting bribery, money laundering or other related crimes.
In this context, the lawyer reminded: only the rule of law into corporate governance, in order to be stable in a complex environment, and truly realize the “pro” “clear” political and business relations under the high-quality development. Any participation, assistance or even acquiescence in the behavior of power and money transactions, may place themselves in criminal risk. Operators must completely abandon “officials receive money and I have nothing to do with” “send a small gift is harmless” and other fluke psychology and misconceptions, only fear of the law, strictly abide by the boundaries of the increasingly tight anti-corruption rule of law network can be stable and far away.
Translated with DeepL.com (free version)
