The afternoon of May 28th, to participate in Huzhou sponsored by the Beijing Heng law firm Huzhou branch of the group "Jing Heng forum" activities, the theme is a well-known lawyer Zhang Peihong as "justice and righteousness" lecture, I was invited as guests commented, learned during Yuan Zhen Long eight Li Dian Zhen XX case will be opened in the Wuxing District Court on the 29 day, Zhang Peihong lawyers are counsel. To appreciate the technical representative personage Zhang Peihong lawyer style, and on the 29 day trial in part. In this case because of the existence of legal dispute and the trial process is wonderful, both sides have played a high level, legal person worth loving criminal defense learning, then slightly finishing this summary, to share with you.

A,The basic situation of the case

   So in the eight term as vice mayor, Mayor Li Dian Zhen, Zhengda tax accountants in eight Li Dian Zhen established inland revenue, by Denon transport team specific operation (the boss fan XX, self financing), so the recommended items, arranged his driver Li and niece to collect a little work, town the government will tax 50% (later increased to 70%) returned to collect points, a certain, fan x, Li agreed to collect points, after deducting the cost of profit in 10% as a reward to Li Mou, 20% as a reward for. In the next few years, collect business make a spurt of progress, a scored reward 870000 yuan, the first 40000 years, second years 170000, 320000, third years fourth years 340000 yuan, while a third years have left to other company.

Prosecutors accused a certain advantage of his position to facilitate to collect points for benefits, through a van something niece accepting bribes 870000 yuan, constitute the crime of bribery.

Counsel pleaded not guilty.

Two,The focus of this controversy

   1A certain in the procuratorate, the record.A certain court said by Discipline Inspection Commission investigators of the inhuman treatment, in order to keep the niece a pleading guilty and bagged all the responsibility, although the procuratorate not to torture to extract confessions, but formed during the record is based on the March 25th come down in one continuous line down in the Commission for Discipline Inspection of the replacement, are not facts. Mainly involved here is the Commission's Procuratorate have no joint case handling, process is legitimate.

   2Whether a certain behavior, constitute the crime of bribery.Specific performance in a non use position convenience, 870000 yuan is the illegal income or lawful incentives to reward the name. The main substantive law relates to this argument.

Three, the court case

   1In popularity.Morning trial on ten points at nine thirty, but has received Beijing Heng Huzhou Jiang lawyers micro-blog "the huge crowds of people ah", I also return to a "help me to take a seat", but did not realize the seriousness of the problem. Ten arrived at the courthouse in court in the Wuxing district court is full, the corridor has been full of people, not a place to live in, from time to time, spectators and rushed to the scene, in addition to the general public, including lawyers and prosecutors, law officers, in the face of the actual situation at the scene, I had to reluctantly give up in the morning. At that session at one point, I was early at court, occupying a seat, but in the afternoon the gallery has decreased, attendance of about 70%. Has the very big relations this trial hearing popularity and lawyer Zhang Peihong name, legal professionals are attracted many Huzhou.

   2The security, the court.Recently on the Internet there everyone in the discussion, criticism of the court too severe problems of law security, lawyers believe that only register, not security, but the Wuxing district court set up two strict and even illegal security procedures. Entrance requirements for registration, payment by hearing, and mobile phone bag all register (register supermarket); High Court gate security, mineral water are not allowed to bring, it is said that even the notebook is not into, better than to see the president also. A lawyer friend more than 10 issued a micro-blog "under the Hangzhou City People's court, articles and personal security of lawyers, lawyers community attaches great importance to" also @ me, I return to a "today

Huzhou Wuxing district court to hear the case, mobile phone bags to deposit. If you record, the court in shielding; if you take photos, simply mobile phone all don't let to take, how could you?" The reality of the helplessness of the expression. In fact, lawyers objection is not security, but suffered unfair treatment.

   3Master, the trial. The collegial panel by the Wuxing District Court Criminal Ruan president personally serve as the presiding judge, and with two people's jury, you know the jury is the main equipment (except, Huzhou intermediate people's court jury trial of Lee, he carefully, ask for information on the case will), so the main or Ruan president in the main control trial. May be the morning observers have noisy or applaud, afternoon trial began, Ruan president announced the rules of the court, the court is to find out the truth, requests the audit personnel to abide by the rules of court, processing or in accordance with the law, and was first time to collect bystander violates the court rules of evidence. The entire trial collegial panel to avoid leaning to either side, in a neutral position, in addition to the evidence stage appropriate to remind the public prosecutor, the defender on the evidence be concise and to the point: examination opinions, the public prosecutor, the defender has been brought into full play, the defendant the opinion, statement have been security, justice of the court. The trial to around five pm, the defendant proposed on the toilet, the presiding judge adjourned for five minutes. In the process of trial counsel cross examination, defense opinions published opinions, the observers (should be the defendant friends) had two or three brief applause, because the plot is not serious, the judge does not go, to avoid conflicts, ensure the trial activities carried out smoothly.

   4The public prosecution power. The prosecution is organized by the Wuxing District People's Procuratorate Deputy Procurator General Wang served as the first prosecutor, deputy chief of the Department of Wei as the second public prosecutor (female, prosecutor, deputy chief of the public prosecution department) Shen served third prosecutors (female), a strong, strong, deputy chief procurators dear king takes a team to run, also attaches great importance to the case. The afternoon is the burden of proof and the court debate. (1) second the public prosecutor is mainly responsible for the burden of proof and the second round of public opinion. The public prosecutor is both gentle and stable, the tone was not slow, how to control well; at the same time as the defendant in court argued with previous confession is not consistent, so the public prosecutor will since the book material, anti-corruption record, arrest, prosecution records record multi statement when the court read out in full the defendant in March 25th, as well as witness testimony, documentary evidence and other materials are produced with read, and basically the defender each examination opinions were to reply, the proof process with a longer time, the public prosecutor heavier tasks, must feel very tired, but fortunately no dumb voice. Make a statement of defence the second round of public opinion for the defender politely were refuted in detail, although not sensational, but finally asked the defendant tone more sincere, believe that the defendant will consciously speechless. (2) the first public prosecutor is mainly based in command, cross examination opinion evidence stage on the defender added defense based on other public prosecutor, published the first round of public debate, except the accusation of crime, also conducted anti-corruption lectures, field than the foot, his existence makes the prosecution team confidence foot. And according to the counsel of the collegial panel to consider implicit to surrender of the problem are described, to make up for the second round of the second public prosecutor opinion omission. (3) Third the public prosecutor is mainly responsible for an important witness testimony of a proof, probably because of pretrial defendants filed for the witness to appear in court, she is responsible for the arrangement of control is convenient to work, but before the court of the defenders and to withdraw the application, so that her work was left to produce a witness testimony. May be due in court sitting all day long suppressed for too long, she played her in high spirits, he produced a before and after a record of five, basically are read out in full, but a very detailed explanation, speaking very quickly and very smooth, but to listen to people who are tired. I personally think that the public prosecutor to speak in court should consider the defendant's sustainability and the recording clerk of the ability, the language speed too quickly, the clerk must remember not come down, the defendant may not fully understand. But these five transcript of three copies of itself is false record, public prosecutor is not used as evidence, the main is to comment on the fourth, five. In general, the prosecution team is the Wuxing area procuratorate public prosecution power is most outstanding, also has played the proper level of.

   5The defense lawyer. Defense lawyer Zhang Peihong is China's well-known lawyers, representatives of the technology to send a lawyer is not sent, Sike, technology confrontation, since the belief in Christ after the more moderate. Cross examination debate in the trial are gentle, but full of feelings of opinion, not on the table, especially when a debate unscripted and rich body language, very sensational, even the public prosecutor is the feeling, the defender's excellent eloquence admiration. At the same time in the field of law, for such a "dead" case, a lawyer from the contradiction, the indictment charges the facts wrong start, grasp the documentary evidence, confession, testimony of witness the loopholes, favorable details, does not require the defendant denies niece to get the money from the fact, the town government has no power to decide to establish generation syndrome a point, so no use convenient position, 870000 yuan is for a reward money, money is not to certain aspects build defense wall, unexpectedly also let this guilty "dead" case is true to life in innocence, views are adjacent to the masses and some legal experts recognized. The second round of debate, the lawyer according to the second round. Prosecutors quickly sorted out to refute the "six words" from public officials, public power and private domain coexistence, unreasonable and crime to distinguish point further argumentation. At the same time also implicitly think, the law allows the defendant to justify acts of nature, while the defenders are innocent, but the defendant is only on to the defensive nature of behavior, it is even a crime, also still have to consider the defendant's plot. Although there is no truth, but legal experts understand, full performance of a defender's duties.

   6The court proceedings. The defendant as held in the Haining detention center, so the morning session time is ten points, at the hearing began at about six fifteen, the end of period, at about five because the defendant's request on the toilet and adjourned for five minutes. In addition to the bailiff court maintain order, and police holding batons to participate in the. The whole courtroom participants performance are good, the observers are basically comply with the rules of the court. Afternoon after the end of the trial the judge adjourned the trial transcript, inform the defendant to check and sign, but also requires the bailiff the accused person back in prison. According to the provisions of the new criminal procedure law, in addition to the defendant to check the record, the defender should also check the record. But we come out from the court after the discovery of police pulled the lights out on the court, the defendant should be immediately to the Haining detention center, but the defender is also out of the court, it is speculated that the accused did not check the trial transcript, do later? This is the only blemish trial.

Four, the defendant's plea

   A certain court admitted that previously identified 10%, 20% award criteria, but this money is for the Li and one, and they have to run the business, there will be oil fees and expenses, also be a compensation, the income is not high, 40000 yuan a year bonus, plus pay is 60000 yuan, is very normal. It is with this reward policy, only to have to stimulate generation threshold energy, after several years of business will be rapid growth. Never thought this is bribery, never deliberately conceal this matter, fan x is also said to give you the money, but he never, because the crime will not do. This money is for a van something, not for their own. Is your recognition of the money in the record before, is forced by the Commission for Discipline Inspection of the pressure, in order to keep the niece a and action recognition, the fact is not the case, if convicted of bribery is too reprisal, wants the court to respect the facts, leniency.

Five, the evidence analysis

   The evidence, both sides mainly to certain statement, a testimony and sign agreement, meeting minutes and other documentary evidence is controversial.

   1So, a confession.A certain in the investigation, arrest in early stage, the stage of review and prosecution have multiple copies of transcripts, were admitted to bribery, 870000 but to yourself, the record is sufficient to recognize bribery crime. (1) a certain court denied, said the Commission for Discipline Inspection by the inhuman treatment, because of stress to do a record, the stage are still affected by the Commission for Discipline Inspection of the shadow, don't dare to say clear, but the heart has been that one day will be on the court, always speak clearly. (2) the defenders from the Commission for Discipline Inspection of the CPC's Procuratorate jointly handling angle to overthrow the procuratorate record. The defender respect the defendants argued, on the other hand, believe in law, only in the suspect case can find witnesses and evidence, the normal procedure should be registered first, find the witness in the post, according to the filing notice book case time is March 25th, the procuratorate for a season, a other witnesses time is the 10 number, the Commission's Procuratorate is in the joint case handling, Discipline Inspection Commission to double in a certain, procuratorate peripheral for the witness, so can not be separated from the Commission for Discipline Inspection in the evaluation of Procuratorate of the record, not the stress to ignore the Commission for Discipline Inspection, and the defendant in court to justify more close to the truth. (3) the public prosecutor think discipline appoint no record evidence to indict, prosecution stage record has the legitimacy and after the defendant signed, especially in the stage of review and prosecution also has a record of two, the defendant by the Commission for Discipline Inspection shadow did not tell the truth without reasonable excuse, the court is in contrary to the facts.

I think, a certain court defense has some truth, he may indeed have no crimes knowingly still need to take these 870000 subjective intent, in his own words if you want to make money, can use other legal ways, because there is no thought of the bribery, so 870000 yuan bribes will indeed feel wronged. But I also think, this kind of understanding error belongs to the law, not be considered a crime does not represent the act does not constitute a crime. From the evidence, a certain investigation, arrest in early stage, the stage of review and prosecution have a stable confession, lawyers also has not formed the content inconsistent record, never asked lawyers to appeal and accusation, the court only by the Commission for Discipline Inspection shadow grounds for the overthrow past, judicial practice basic impossible. Of course, the early records and since the book materials, items so completely to plead guilty and state spent, lack the necessary explanations, authenticity of this record but is reduced, a record to be convincing, both to a confession of guilt, also must have the excuse, taking one-sided approach is very stupid.

   2A testimony. Mainly fourth, a record of five, a record of fourth, niece a think 870000 yuan is to so and so, to the prosecutors; fifth copies of transcripts that 870000 yuan a prize, two is the money for herself, three is because the factors when the uncle. That the prosecutor should adopt fourth true, the defender believes fifth true should be adopted, because of the fifth report. So do not need a re testifying, therefore withdrew its application.

   I think, a record of fifth closer to a mean, that money was for her, is a bit relation and uncle, this is not wrong, this is the station of in her point. But 870000 yuan of money what to whom, what is nature, not a word, the key to see $870000 people how to say, a testimony although controversial, authenticity to which is worthy of scrutiny, but she is not confirmed the key witness this fact, and whether a record of fourth or fifth copies of transcripts or, have confirmed that the 870000 yuan and so on, and it is not enough to support the pleas of innocence.

But the key witness other fan so not testify in court, the record is actually a rich to so and so, it is of a very unfavorable. Of course, judged by the ordinary sense, standing in the van and point of view, this 870000 yuan should also be to someone, whether a certain, a how to think.

Therefore, all the evidence in the case, very unfavorable to the defendant a so and so, so this case is a guilty "dead" case, counsel pleaded not guilty, which also can only grasp the individual evidence can be carried out from the angle of law.

Six, analysis of the relevant legal issues

   1, whether the use of the convenience of duty.The defenders around the content to fight back, such as the decision to collect points set up not in the town government, in Zhengda Company; the government meeting minutes clear to 50% of revenue return, a certain sign or not to, otherwise the default; prosecutors from the generation of sign up need approval from the town government agrees, payment with a signed, are demonstrated in charge of industry etc.. Personal opinion, judicial practice China present, even if the indictment charges that have problems or errors, the court may still be in on the basis of ascertaining the facts found guilty; duty behavior is a fuzzy concept, a certain is the mayor, the collect opened Dian Zhen in eight, besides money back when also signed, to deny the duty then basically impossible.

   2,87Million in the end is to who.Fan x will be 870000 yuan to a rather than a certain, but standing in the normal angle, fan x what to spend so much money for a little girl? The answer is self-evident.

   3,87Nature million, is a bonus or unjust enrichment or bribes.Rights and obligations are equal, if from the bonus point, you need to collect a positive pull our evidence, but in this case it is not evidence, this excuse is actually very far fetched.

   4Confession or the nature of behavior, is excuse. The case strictly speaking even in accordance with previous record does not constitute a surrender, but discipline or procuratorate or before a surrender, but the defendant gave up, the public prosecutor in the trial that this is evidence, it can not be identified.

   5, a, a season of whether an accomplice. According to the theory of joint crime, the problem is clear, if a certain form, then a, a season also constitute. Of course, considering the actual situation of the case, whether to investigate it is another matter. In 2007, the Supreme People's court, the Supreme People's jointly issued the "about the problems of bribery in criminal cases the law applicable opinions" specific relationship of bribery case, in this case as a niece and a relationship, completely belongs to the special relationship, but the trial control between the two parties never talk about.

Seven, some thinking

   1, the leading cadres are the largest post risk, time risk be deposed corruption, not the evil of human nature, but the system harm.

   2, specialize in, leading cadres is not legal person more than criminal law experts, to be legitimate to earn more money, please consult a professional legal advice, in advance whether legitimate, whether to constitute the crime, do not because of mistake of law and violate the law.

   3, the defense way choice is a complex problem, is to recognize the situation to plea for light conditions, or fight to win or die correct overall turnover, not a lawyer one could say, in many cases, even to friends and relatives to the parties to respect the views of the.

   4, the public prosecution department and law firms, lawyers association, anti-corruption should cherish this rare opportunity to the organization of emulating court seriously study, no pity, but there are still some lawyers, prosecutors to spontaneous learning.

                                       Beijing Heng Law Group firm Shen Guoyong

                                                  May 30, 2013

(Note: 1, above the relevant facts of the case, the trial of content is according to my memories and sorted, and can hardly be avoided, and the objective conditions do not go; 2, I am not talented, the view inappropriate hope criticism.)