"Nailing the coffin" triggered a collective report from Lichuan buyers. Since then, Kong has been prosecuted to the court for committing fraud. However, it is controversial whether Kong's behavior violates the criminal law and should be sentenced for fraud, or whether it violates the civil fraud of the Consumer Protection Law.
"There are no laws or industry standards in China that prohibit the use of nails in coffins. The same behavior cannot be legal in Hunan and criminal in Hubei. " In court, Zou Xiangyu, Kong's defense lawyer, said.
The newspaper learned from Zou Xiange that after the Lichuan court ruled that Kong was not guilty in the first instance, the prosecution filed a protest. On February 28th, 20 17, the mercy intermediate people's court of Hubei province ruled in the second instance that the protest was rejected and the original judgment was upheld. This means that Kong was acquitted.
Lawyer Zou Xiangyu said that Kong Zhuqing, who was detained for nearly a year, was recently acquitted in the second instance and will apply for state compensation. But Kong's behavior is suspected of consumer fraud. If the coffin buyer needs to defend his rights, he can bring a lawsuit to the court on the grounds of contract dispute and make a civil claim.
Coffins are not traditional, and coffin manufacturers are accused of fraud.
According to the facts ascertained by the courts of first and second instance, Kong is 50 years old and is from ningyuan county, Hunan Province. In September, 20 14, Kong rented a wood processing factory in Genshankou Town, Jingzhou County, Hunan Province, and used white latex and yellow powder bonding to make wood into coffins with nails. 2065438+From May to August, 2005, Kong transported semi-finished wooden coffins (unpainted) to Lichuan City, Hubei Province, Shiqian County, Guizhou Province and other places for sale, and handled certificates such as timber transportation certificate and plant quarantine certificate.
However, in the process of selling coffins, Kong concealed the fact that the cover plate and wallboard of coffins were connected and pieced together by nails, and lied that it was a coffin with a "whole wall and a full cover" (referring to a coffin made of a piece of wood). Zhao, He, Tian and others 17 people listened to this statement and bought semi-finished coffins or accessories sold in Kong. The sales amount obtained by Kong is * *.
The cause of the crime is closely related to the funeral customs in the sales place. The newspaper consulted relevant reports. At the end of June, 2065438+May, villagers in Jichang Village, Wuliang Township, Lichuan City reported to Wuliang Police Station that Jichang Village 1 1 villagers bought 19 semi-finished coffin materials from a foreigner. When asked to process, they found that these materials were all made of nails, white latex, stone powder and yellow powder. According to local funeral customs, coffins can't carry iron, and these coffins can't be used to bury the dead.
Lichuan police filed a case for fraud investigation. On August 23rd, 20 15, Kong was arrested by Huaihua police in Hunan, and was taken back to Lichuan Public Security Bureau for criminal detention on the 28th of the same month. Later, Kong was prosecuted by Lichuan City Procuratorate for fraud.
The prosecution alleged that Kong knew that the coffin used in the victim's residence could not be equipped with iron, and he also fabricated the fact that the coffin was "covered with the whole wall" and concealed the truth that the coffin was spliced with nails, making a profit of more than 200,000 yuan, which was in line with the constituent elements of the crime of fraud. Kong should be investigated for criminal responsibility for fraud.
Lawyer: The same act is not legal in Hunan, but it is a crime in Hubei.
In court, whether Kong's behavior violated the criminal law or not should be sentenced for fraud or civil fraud, which caused controversy.
Kong argued that the coffins used in his hometown, ningyuan county, Hunan, were all nailed, and he didn't cheat.
Zou Xiange told the newspaper that she visited many local wood processing factories in Ningyuan and obtained relevant evidence, confirming that there were dozens of wood processing factories in the defendant's hometown, and most of the coffins were spliced with nails, including processing licenses.
"The same law applies to criminal cases all over the country. There is no law or industry standard prohibiting the use of nails in coffins. The same behavior cannot be legally implemented in Hunan and Hubei, so the defendant manhole should not be subject to criminal sanctions. " Zou Xiangyu believes that the relationship between the defendant and the victim is actually a sales contract, and their behavior is at most a breach of contract. Due to the adjustment of civil laws such as contract law and consumer protection law, the two parties belong to product quality disputes and do not belong to the scope of criminal law adjustment.
"Local customs should be respected, but authoritative criminal judgments should be based on facts and laws, not customs." Zou Xiangyu defended that according to the case materials, the price of a "full-wall" coffin should be seven or eight thousand yuan each, while the price of the coffin sold by the defendant was between three thousand and five thousand yuan, far below the market price. The victim should have a foresight about the quality of this coffin which is far below the market price.
Zou Xiangyu believes that it is a civil fraud for Kong to conceal the fact that coffins are spliced with nails when he sells them, because these coffins can be used objectively, but only because the victims are subjectively unwilling under the influence of customs and habits, so Kong does not constitute a crime of fraud in the sense of criminal law.
Court: If it does not constitute a criminal offence, the buyer may claim civil compensation.
On July 4th, 20 16, Lichuan People's Court made a first-instance judgment: Kong was not guilty.
After the verdict was pronounced, the People's Procuratorate of Lichuan filed a protest. On July 5, Kong was released on bail pending trial by the People's Court of Lichuan City. At this point, Kong has been detained for nearly a year.
Enshi Intermediate People's Court ruled in the second instance that in order to earn more benefits, Kong violated the oral agreement of both parties and concealed the truth that the coffins sold were connected by nails, which led to misunderstanding and damage to the interests of the other party. However, in the process of processing and selling coffins, Kong bought wood, hired carpenters to process it, and handled certificates such as timber transportation certificate and plant quarantine certificate during transportation. Subjectively, there is no intention to illegally occupy other people's property. His behavior of concealing the truth in order to earn more benefits when selling coffins does not meet the constitutive requirements of fraud and does not constitute fraud.
At the same time, the court held that the property losses caused by Kong's civil fraud can be solved through civil litigation.
Zou Xiangyu explained to this newspaper that the criminal law prohibits analogical interpretation. "Consumers buy a sweater, which originally contained only 50% wool, but the seller advertised that it contained 65,438+0,000% wool. Should these sellers be investigated for criminal responsibility for fraud? And the list goes on. If criminal responsibility can be investigated, the scope of attack can be infinitely wide. "
Zou Xiangyu believes that the significance of the acquittal in this case lies in how to correctly distinguish the boundaries between civil and criminal. Although Kong's behavior does not constitute a criminal offence, it is suspected of consumer fraud. If the coffin buyer needs to defend his rights, he should bring a lawsuit to the court on the grounds of contract dispute and make a civil claim.