Defense lawyer's opinion: Fan
Nanchang Wanli District People's Court:
Dear Chief Justice Li and Judge Zuo Na,
Entrusted by the wife and grandson of the defendant in Liu Xpei's bribery case, the lawyer was confirmed to participate in the litigation activities of this case as Liu Xpei's defense lawyer. First of all, I appreciate that the court can accept my defense work. Because although Article 43 of the Criminal Procedure Law clearly stipulates that the parties should change their defenders during the proceedings, some courts still try their best to obstruct and are very reluctant. On this issue, your hospital and our hospital consciously respect the law and protect the defendant's right to defense, which should be affirmed.
After understanding the litigation process in the early stage of this case, I regret to find that many cases in your hospital have no legal basis or do not meet the legal requirements during the trial of this case. Because of my duty as a defense lawyer, I have to ask this question to your court and judge.
1. Your institute has no jurisdiction over Liu Xpei's bribery case.
None of Liu Xpei's alleged criminal acts and results occurred in Wanli District. Liu Xpei's bribery case, which was prosecuted by Wanli District Procuratorate and under the jurisdiction of Nanchang Intermediate People's Court (the trial record was 20/kloc-0, which was designated by the Intermediate People's Court on August 9th, March, and the presiding judge later explained to our lawyer that it was designated by the Intermediate People's Court), is not an independent case. None of the criminal facts alleged in the indictment was committed by Liu Xpei alone, but all were conspiring with others to pay bribes. In other words, this case is obviously a crime with * * *. We have noticed that the Wan * Yang case in the same case was accepted by Nanchang Intermediate People's Court, and the cases of Song * Min, Li * Zhong, Li * Yong and others were under the jurisdiction of the district and county courts under the jurisdiction of Nanchang City, and they have been heard in court.
Article 13 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law clearly stipulates:? One-person crime, * * * same crime and other cases that need to be tried together, one of which is under the jurisdiction of the people's court at a higher level, and the whole case is under the jurisdiction of the people's court at a higher level. ? At the same time, the fourth paragraph of Article 362 of the Supreme People's Procuratorate Criminal Procedure Rules also clearly stipulates: One-person crime, * * * same crime and other cases that need to be tried together. As long as one or one of the charges is under the jurisdiction of the people's procuratorate at a higher level, the whole case will be examined and prosecuted by the people's procuratorate at a higher level. ?
The reason why the judicial interpretation of the highest judicial organ makes such compulsory jurisdiction provisions is not only the need to find out the facts of this case, but also the consideration of saving judicial resources and minimum judicial justice for accomplices. According to the current trial situation of illegal cases, the different trial levels of the same case are equivalent to depriving Liu Xpei and others of their substantive appeal rights.
Therefore, your court's trial of this case seriously violated the procedure. There is no doubt that all trial activities that seriously violate the procedure are illegal.
Whether it is the Nanchang Procuratorate and the Nanchang Intermediate People's Court, or the provincial judicial organs, or even the higher authorities or leaders, it is a serious violation of the law to make such a compulsory decision to prosecute and hear cases respectively. As an executive organ, your hospital is hard to blame. The judge who undertakes the case is the direct executor of the illegal act and is bound to bear the legal responsibility for the illegal trial.
It is also known that Huang * Xia, the executive vice president in charge of criminal trial in your hospital, once served as the deputy procurator-general of Wanli District Procuratorate, participated in the investigation of Liu * Pei's bribery case, and is now in charge of criminal trial in your hospital. Our defender has no definite evidence at present, but if there is, it is obviously inappropriate for your court to hold another trial.
Liu Xpei's other defense lawyers also raised objections to the jurisdiction of your hospital. The presiding judge explained to my lawyer on July 14, and your hospital also reported in writing to Nanchang Intermediate People's Court that Nanchang Intermediate People's Court only verbally maintained its designated jurisdiction over your hospital, and there was no corresponding and necessary written form. According to the defense lawyers of other defendants in the same case, they asked the relevant personnel of the Intermediate People's Court and got the information that Nanchang Intermediate People's Court did not specify!
The lawyer once again put forward written opinions on the jurisdiction, and stressed that the illegal behavior of the higher court cannot be the reason for the illegal trial of the lower court, and the members of the collegial panel hearing the case are undoubtedly the direct responsible persons for the illegal trial. As a defense lawyer, I will exercise all the rights to sue and appeal against serious violations of the law in your hospital.
Second, there are many illegal acts or serious dereliction of duty in your court's illegal jurisdiction and forced trial.
(1) On the evening of April, 2065438 16, Liu Xpei was taken away from the Pearl Hotel in Changsha, Hunan by the investigators of the Wan Li Procuratorate, and was taken back to the Wan Li Procuratorate the next day. According to the legal documents in the case file, Liu Xpei was only detained in criminal detention on April 23rd of the same year. That is to say, from April to April 23rd of 16, for seven consecutive days, Liu Xpei was illegally detained in the interrogation room of Wan Li Procuratorate by investigation organs and staff. Liu Xpei repeatedly emphasized this serious illegal or even criminal behavior in the trial, but your hospital did not find it.
(2) Your hospital summoned the participants to watch some synchronous videos of the trial (it should be all videos), but Liu Xpei did not participate as a direct party, which seriously violated Liu Xpei's litigation rights and made the exclusion of illegal evidence and even going through the motions too imperfect.
(3) The illegal evidence exclusion procedure was not really started, and the confession made by the defendant Liu Xpei under torture was not substantially examined.
(4) Failing to serve the defendant with a court summons in accordance with the third paragraph of Article 182 of the Criminal Procedure Law, resulting in the defendant having no necessary time to prepare for the trial.
(5) Your court heard the case on October 30th, 20 13 10, and it was not until July 3rd of the following year that the trial transcript was taken to the detention center for the defendant to read and sign. Moreover, the entire trial transcript was not signed by the presiding judge and the defense lawyer, which violated the provisions of Article 20 1 of the Criminal Procedure Law and Articles 238 and 239 of the Supreme Court's Interpretation on the Application of the Criminal Procedure Law.
(6) Our court refused to consult and copy these important litigation documents submitted by your court to the higher court for approval to extend the time limit or the public prosecution agency for supplementary investigation. This seriously violates the provisions of Article 38 of the Criminal Procedure Law, infringes on the minimum right of defense lawyers to know, and affects the defense work of defense lawyers. Therefore, I have reason to believe that the trial of Liu Xpei in your hospital has seriously violated the provisions of Articles 96 and 97 of the Criminal Procedure Law, and Liu Xpei should be released immediately or compulsory measures should be changed.
(7) The penultimate line on page 2 of the trial transcript:? Liu * Pei intentional injury case? If it is a clerical error, our lawyers can understand; If you want to use fabricated ones? Intentional injury case? It is very futile to prevaricate illegal designation.
To sum up, my lawyer's opinion is:
First, release Liu Xpei immediately or change compulsory measures, because this case is not only a serious violation of the law, but also a more barren entity. One day less detention, one less passivity.
Second, immediately return the case to the public prosecution agency or Nanchang Intermediate People's Court. If the case is put on hold in your hospital for one day, the illegal state will last for one day; After being prosecuted by Jiao Xjun and Jiang Xcai (if possible), they will be tried together with Wan Xyang.
Dear judges:
Marx said? A judge is the king of the legal world, and there is no boss except the law. ? As a legal person, defense lawyers should and must respect the judge, but the judge, as the sole boss, must also respect the law. We also know that in a bad legal environment, the boss of a judge may not be the law or mainly not the law. But a judge who ignores human life and perverts the law is doomed to have no good result. Please remember: in the eyes of the loving mother of law, everyone is the whole country? (Montesquieu).
A tribute from a legal person.
Defender of Liu Xpei:
Shaanxi Hong Rui lawyer office
Lawyer Liu Zhiqiang.
July 17
Opinion of defense lawyer, Fan.
XXX County Public Security Bureau Economic Investigation Brigade:
In the case of Li's alleged contract fraud, Anhui Zhibang Law Firm accepted the entrustment of his relatives and appointed me as the defense lawyer in the investigation stage. 20 12 February 29th 12 The arrest was not approved due to insufficient evidence. On the same day, it has been more than three months since your bureau took measures to obtain a guarantor pending trial against Li.
Paragraph 2 of Article 77 of the Criminal Procedure Law stipulates? During the period of bail pending trial and residential surveillance, the investigation, prosecution and trial of the case shall not be interrupted. If it is found that criminal responsibility should not be investigated, or if the term of bail pending trial or residential surveillance expires, the bail pending trial and residential surveillance shall be lifted in time, as well as the provisions of Article 103 of the Procedures for Handling Criminal Cases by Public Security Organs. The public security organ shall not interrupt the investigation of the case while being released on bail pending trial, and the criminal suspect released on bail shall promptly change the compulsory measures or lift the bail pending trial according to the change of the case? . According to the above regulations, during the period when Li is released on bail pending trial, your bureau shall not interrupt the investigation of the case, that is, it shall not delay.
From the defender's point of view, Li's accusation of contract fraud is not a question of insufficient evidence, but a question of whether it constitutes a crime. During the arrest procedure, the defender has submitted a written lawyer's opinion to the county procuratorate, stating that this case does not constitute the crime of contract fraud. Judging from the subjective and objective elements of this crime, I still insist that Li's behavior does not meet the constitutive elements of the crime of contract fraud. Please think it over.
Judging from the evidence collection procedure, all three suspects involved in the case have arrived at the case and have been released on bail pending trial. One of the suspects was released on bail a few days after his arrival. In other words, the confession of the suspect involved has been obtained. The statement of the victim (accuser) already exists, and the corresponding documentary evidence has been submitted? The car purchase agreement signed by both parties (although I didn't see the documentary evidence submitted by the plaintiff with my own eyes, I guess the key evidence of this accusation is indispensable; Li's father also kept a copy of the car purchase agreement. I think your bureau should have mastered the transfer and transfer information of the vehicles involved. Therefore, the defender believes that the main evidence in this case should be basically collected. If this is still inconclusive, time may not be able to change all this.
In practice, some cases that are not complicated and difficult to obtain evidence and are released on bail pending trial at the investigation stage are often delayed until the expiration of bail pending trial, and then closed: either transferred, or withdrawn, or even withdrawn. Even after bail pending trial, it was changed to residential surveillance measures and continued to delay. Defenders believe that these acts violate the spirit of the law, which not only damages the prestige of the public security organs, but also damages the legitimate rights and interests of the parties: the parties cannot get the final judicial treatment result as soon as possible and are in an unstable state for a long time.
Belated justice and injustice. The defender requests your bureau to file a case for investigation as soon as possible according to law, or transfer it to the procuratorate for review and prosecution and court trial; Either drop the lawsuit and return it to Li Qingbai. Please carefully consider the above comments and look forward to your reply as soon as possible.
I am here to convey
Defender of Li: Lawyer Li Jun..
March 1 1
Opinion of defense lawyer: Fan Wensan
Dear Prosecutor:
Henan Law Firm accepted the entrustment of Wang Moumou, the spouse of the criminal suspect Wang, and was appointed as the defense lawyer for Wang's suspected traffic accident case with Wang's consent.
The defense lawyer listened to the client's introduction in detail, met with Wang according to law, inspected the scene of the traffic accident with the client and his relatives, and submitted relevant defense procedures to the traffic police to briefly understand the case; A detailed study of the traffic accident certificate was made, and a review was put forward in the traffic accident liability identification according to law. Although defense lawyers can't fully understand the case in the public security investigation stage, based on the particularity of traffic accident cases, we now put forward the following opinions on the problems of Xingyang traffic police department hiding core facts, wrongly identifying accident responsibility, and seriously violating legal procedures, especially according to Article 86 of the Criminal Procedure Law of People's Republic of China (PRC):
First, the road traffic accident certificate made by the traffic police department of Xingyang City is unclear, or the facts are deliberately confused, and the driver's responsibility is arbitrarily increased, which cannot be accepted.
As far as the basic facts are concerned, the intersection of the incident belongs to the intersection of the main road and the branch road, and the north-south intersection of the branch road, that is, the two intersections where the victim An Moumou passed north and south, are all set with octagonal red background and white characters? Stop? Warning traffic signs.
But strangely, in the accident confirmation No.00047 (20 15), about? Road conditions? But there are no records or signs on these two roads set at the north-south intersection? Stop? Word traffic warning sign! This is obviously unclear!
In fact, according to the road traffic laws and regulations, according to the national standard of traffic signs, at this intersection, it is motor vehicles that enjoy the priority right of way according to law.
On the other hand, even according to the second paragraph of Article 69 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China, the victim An Moumou should slow down and look out at the intersection according to law, so that the road on the right can go first? That is to say, even if it is ignored? Stop? Warning sign, when the accident happens, the person who enjoys the priority right of way according to law does not belong to the victim, but belongs to the motor vehicle driver Wang Xiang.
It is precisely because the victim violated the traffic rules and forcibly occupied the road that the traffic accident occurred. The accident happened in the northern half, just on the right side of the applicant An Moumou from south to north.
Therefore, from all aspects, it is neither in line with the objective facts nor with the legal provisions that the victims identified by the traffic police department of Xingyang City enjoy the priority right of way? Basically, it is deliberate to confuse the facts. It is arbitrary and illegal to assume that the victim has the right of way first.
Two, according to the "Henan Province Highway Rules" annex? Classification of wrong behavior? Articles 14, 15 and 44: Does the respondent violate the first or second paragraph of Article 69 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China and the first paragraph of Article 70 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China? And fault behavior classification table? Articles 14, 15 and 44 in Chinese belong to the fault type of active behavior and should bear the main responsibility.
The Detailed Rules for Roads in Henan Province explicitly authorizes the Ministry of Public Security to be formulated by local public security organs. It is formulated according to the road traffic regulations. Is there a clear and specific responsibility determination clause? Its more important significance is also a restriction on the administrative power of traffic police!
However, the accident involved proved to be a clear violation of this regulation and illegal!
3. The driver was criminally detained five days before the traffic accident certificate was made, and the evidence obtained was not made public to the driver before the accident certificate was made. These are obviously serious violations of procedure.
First of all, a traffic accident occurred on the morning of June 22, and the driver Wang was criminally detained on the same day; And the time when the traffic accident certificate was issued was June 28? Without identifying the responsibility for the accident and conducting in-depth investigation and evidence collection, the driver involved in the accident has been detained in criminal detention. This not only violates the criminal prosecution filing procedure, but also has ulterior motives and attempts to extort money.
Secondly, according to the second paragraph of Article 47 of the Procedures for Handling Road Traffic Accidents, if a fatal accident occurs, the traffic police department shall call all parties at the scene to openly investigate and collect evidence before the accident confirmation is made. However, the Xingyang Traffic Police Brigade has not disclosed the evidence to the applicant so far. This is also a serious violation of legal procedures.
In short, the road traffic accident in this case was caused by the victim An Moumou's serious violation of traffic regulations and forced occupation of the road. If the driver of the accident acted improperly, it was not written in black and white on the yellow background of the triangle. Slow? Slow down at the sign? However, if the victim breaks into the motorway by bike, even if the motor vehicle slows down, the accident cannot be completely avoided for the flat road with a speed limit of 80 kilometers! So the driver's fault behavior is passive at best!
In the whole case, the traffic police department of Xingyang deliberately reversed the facts, aggravated the responsibility of the driver who caused the accident, and seriously violated the procedures, which made people suspicious. This seems to have ulterior motives and good intentions!
In addition, the suspect Wang is 55 years old, has no criminal record, and is also an on-the-job person with a stable income and a residence; Moreover, the crime of causing traffic accidents is a negligent crime, and there is really no need to arrest it.