Guangxi Beihai four lawyers alleged perjury caught case legal analysis

Hubei best senior lawyer, Yichang Municipal People's Congress, vice chairman of Yichang City Association of Writers: Deng Yiping

The author: Guangxi Beihai police once the same case advocate catch all in one draft, caught four lawyers. This matter after, lawyers to adults, especially the lawyer Yang Jinzhu, sitting on the siege, carefully examine the evidence of the case file, from the perspective of the four lawyers to confirm that fact is not false, the noble professional attitude and seriously down-to-earth style of work is admirable.

But, I think, is must be confirmed by the three witnesses words not false testimony in the investigation of Yang lawyers, have to prove the criminal suspect does not kill the victim in order to prove that the four lawyers not guilty? As must provide evidence that the murderer otherwise the person, the criminal suspect to the accused was acquitted? That is to say, as long as that lawyer forensics witness or his defense of criminal suspects the false confession, the lawyer guilty?

I think, should not be so. Here, I don't want to deny Yang Jinzhu lawyers work, but Yang Jinzhu lawyers work of those most directly deny one lawyer way to constitute a crime, but I can not say, this is not the only way, and must not be the only way. Therefore, I also try to learn from Yang Jinzhu's lawyer, settling down, sitting on the desk, the use of legal and proper legal logic, one point one point analysis, to illustrate the absurdity in this case, to prove the lawyer! Inappropriate, please.

One, the four lawyers is how in the same case also constituted perjury?

From the relevant evidence and information from the point of view, the four lawyers from different law firms, respectively, to defend the same case different defendant. According to the common sense of general criminal defense, between the four defendants four lawyers defended, there is a conflict of interest, there is difference between the principal and accessory in between them, they may also have played a conflict of interest, the effect size and the existing criminal responsibility size in the same crime therefore, from criminal defense lawyers for the sake of his lawyer occupation morals of the interests of the parties, the four participants from different lawyers, is unlikely to rise to defend each other, and according to the analysis of Yang Jinzhu's lawyer, mainly is to prove that he was not on the scene, then, other suspects?

From here, we have the first question is: four lawyers at the same time, the crime is caught, what is the crime? Or four separate crime?

If the four lawyers together crime, then, common intent crime must have the common crime, collusion process, there is a common crime will be between us how, the four lawyers is how collusion, collusion between them? They come from different law firm, to defend different criminals, why should they conspire together to create fake evidence? What time, what place collusion collusion, how. What is the purpose of the conspiracy? In collusion, how they are division of labor, how to implement theCommonMaking false behavior?

According to the lawyer Yang Jinzhu published evidence, the so-called false evidence is Yang Zaixin, Yang Zhonghan two law, then, there are two lawyers did not participate in, the two lawyers and how to lure the perjury? How do they and Yang Zaixin, Yang Zhonghan the implementation of a common crime? In this case, they undertake is a fee of up to 8000 dollars in general criminal defense, the defendant can off and may not be a lawyer himself are materially interested, why the four lawyers to perjury together collusion? Especially after the Li Zhuang case, lawyers as a badly frightened person, fear of crime, for the Yang Zaixin Yang Zhonghan, which have been fully reflected. So, why do they dare not free insurance, openly perjury together collusion? Moreover, according to the conclusions of the public security organs, this is a case of injury death homicide case, the victim is in fact a deadly, if the case to find out the principal's words, other accessory should be lighter punishment, why his lawyer to let him tell lies, cover the principal? What are the benefits to the accomplice, are not good for accessory, what good for defenders, isn't that took thousands of Yuan lawyer fees principal lawyer to lawyer bribery accomplice? The common crime like this, no matter from reason or common sense, right?

If not collusion, then, why the four lawyers will invariably constitute prejudice witness to the criminal in the same case? Don't they have telepathy, do lawyers duty is to testify, once accepted criminal defense case, will testify? Do the four lawyers also be stress, non prejudice testimony can not be, otherwise it will head landing? This can make sense? Make sense?

Through the above reasoning, we can roughly be reducing the facts of this case. The four lawyers in their meeting with his client, inform the parties in this case is the same truth, the death of the victims, they simply do not at the scene, they admitted that killed the victim, because there is a torture to extract confessions (this is evidence, the suspect's lawyer in the transcripts of the meeting. Write down the torture to extract confessions situation). Therefore, for the defenders instinctive sense of responsibility, in order to reveal the truth, there are two lawyers to take action, and the other two lawyers, did not take any action, just tell his own party, line truthful statement in court.

So, why the Beihai police at the same time to catch four lawyers? Charges four lawyers constitute the crime of obstruction of evidence? This is because, if they only caught two Yang lawyer, you will not be able to explain why in court, four defendants also evidence, if the other two defendants accused of really constitute a crime, no stranger instigation, how will the confession? In order to make out a good case, had four lawyers are caught together, because the other two confession is his defense command! And I'm sure, if the case of five lawyers, also could not escape the fate of being caught, because, if the defendant told it was torture to extract confessions, confessed to the crime record is not true, then irresponsible lawyers will say, you say to the judge to the court now, instead of saying, you considered unlucky. If really let the defendant zirendaomei lawyer, he is certainly to be expelled from the bar!

Two,Four lawyers perjury intention and behavior?

"Criminal law" the 306th stipulation: "in criminal proceedings, the defenders and agents ad litem, destroy or forge evidence, to help the parties destroy or forge evidence, threat, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, three to seven years be sentenced to." In the second paragraph of special provisions: "the defenders and agents ad litem, provide, produce, citing witnesses testimony or other evidence inconsistent with the facts, not forged intentionally, not belong to forge evidence."

According to the regulations, constitute this crime must be intentional, or intentionally, and is directly intentionally. Refer to false evidence, do not belong to forge evidence. According to the famous criminal jurist Long Zongzhi that, in such cases, must also pay special attention to occupation characteristics of lawyers, is must be reasonable doubt the prosecution to provide evidence, if the lawyer has reason to believe that the prosecution evidence there is doubt, or the defendant stated subject to torture to extract confessions, and to investigate the evidence, that is afraid of. False evidence, also not constitute the crime of.

Then, the Beihai police can prove to four lawyers perjury?

Because the Li Zhuang case before the car is not far, law has become a badly frightened person in criminal defense, we have found that in the relevant documentary evidence, lawyers in order to prevent the police framed this crime, has taken corresponding measures, the defendant, witness inquiry, are clearly put forward that the defendant, witness such as false statement, and inform the the defendant, witness to give false testimony to clear legal responsibility, and even to witness a clear answer: whether a lawyer is to lure the perjury, and will witness the negative answer recording the record, what is more, the defendant of torture to extract confessions by the testimony that the defendant signed off, this series of documentary evidence has confirmed the lawyer did not induce the perjury.

The police in order to frame of this crime, will witness all the detention, forcing witnesses perjured himself, forcing the witness recognized lawyer lure the perjured himself, the defendant in the same way persecuted and jailed. (forcing the way we shall not, likely is torture to extract confessions) so, such a forced confession and the credibility that much, trial of the basic principles of the criminal case is, the weight of evidence not confessions, now all the witnesses have become the defendant of perjury, their confession can the overthrow of the original documentary evidence put it down in black and white?

Moreover, we also ask, the three witnesses to testify in court is on, the sacred and solemn court, the trial judge must inform them of perjury to undertake the legal liability, they still made and defense lawyers transcript consistent witness testimony, went to court, not self-evident, is responsible for in his testimony, how don't Lawyers liability false testimony in court?

Second, as a witness, there is a common sense is: can tell right from wrong and can correct expression. In this case, lawyers repeatedly written informed: must seek truth from facts to testify, perjury should bear the legal responsibility, a lawyer shall not tempt a witness to give false testimony, so you also recognized the lawyer did not tempt you to perjury, this written to inform the witnesses, defendants, including the case, have signed the law division of the record, to be responsible for. Do all the witnesses, defendants are delirious, signed on to put it down in black and white on, to overthrow their commitment in the lawyer put it down in black and white only verbal seduction, another false witness, and clear in the paper, the lawyer told them explicitly, false evidence to bear the legal responsibility, why they dare perjured himself in the same the paper? This make sense?

Third, if really, when written to inform their lawyers perjury should be responsible for the legal liability, and they in order to save themselves, at the risk of a prison shall not give false testimony in the warnings are false, in this case, these witnesses are full capacity, they should be responsible for their own when a lying witness how can the behavior, with their one-sided that lawyer lure they made false?

Obviously, the Beihai police think that four party lawyer lure perjury evidence hardly, but what about the irrefutable evidence fully.

Four, Beihai police arrested of the witness is a crime should be complete, the existing legal sanctions.

In this case, the damage deadly sin entered the people's court trial, three witnesses to testify in court. So, if three witnesses suspected of perjury, obstruction of the court, rather than the public security organs of the trial, nor the prosecution trial. Popular point said, the court is the victim. That is to say, only the people's court "found" witness perjury behavior, and then handed over to the public security organ for investigation, the public security organs have the right of investigation.

So, in this case, the court found the witness is the acts of perjury? No. Through cross examination of witnesses, the court just found evidence in this case does not prove that the defendant's criminal acts, and adopts a tacit procuratorial organ to withdraw the case for supplementary investigation.

This case is how the case, according to the Beihai police news conference, is the prosecution found the witness certificate and "has identified the fact not symbol," so, what are the facts that have been identified? Is undoubtedly the prosecutors moved to all the material evidence, the people's court, (of course, not there may be other materials, such as there are other materials, for the court to confirm the facts, the court will judge the case, not to play this out) and the people's court in the trial of the case, according to the prosecution to provide all the evidence materials, the conclusion is, the crime can not prove that the defendant is accused of. Then, the prosecution and what rights to confirm the evidence to confirm "the facts that have been identified" level, you can replace the court made the judgment? If you can replace the court made this judgement, what should the court, you sentenced to do not have? Obviously, the prosecution on behalf of the court made this judgement is no basis, is absurd.

"Kaizong Akiyoshi's Fifth Law of criminal procedure": "the people's court in accordance with the law to exercise judicial power independently in accordance with the law, the people's procuratorates exercise procuratorial power independently, not by administrative organs, social groups and individuals." This shows that, in the phase of the trial, the people's courts exercise judicial power independently, in control, between the two parties to provide evidence and the testimony of witnesses, is made by the people's court to find out by trial, the verdict is an important content is called a "examined" is to write the content, the content of procuratorial organs is no alternative, or in violation of the provisions of article fifth of the criminal procedure law.

Accordingly, in the people's court, no matter which side, whether as the procuratorate, or as a defense lawyer, has no right to interfere with the people's court jurisdiction. The people's court shall be summoned to appear in court as witness, is by the people's court protection, the people's court shall not ordered an investigation into the witness, any other organs, individuals, have no right to be subpoenaed witness interference in any form, but not by violence, threats and other ways to interfere with a witness to testify. If any person to the court as a card, the public security organ, the procuratorial organs can be any witness captured, then, who would dare to testify in court, witness system in our country, not to die completely! And testify against such interference behavior, in fact "criminal law" also has designed the punishing provisions:

"Article 307th: by violence, threat, suborn witnesses and other methods to prevent or inciting others to commit perjury, is less than three years imprisonment or criminal detention; if the circumstances are serious, three to seven years in prison."
"To help the parties destroy or forge evidence, if the circumstances are serious, is less than three years imprisonment or criminal detention."
"The judicial personnel commits the crime in the preceding two paragraphs, shall be given a heavier punishment."

Obviously, the public security organs have not transferred to the people's court and license, will testify in court witness detention, let the loss of personal freedom, is this not the means of violence or threat, prevent the witness behaviour, do not think that the Public Security Bureau, this behavior is not punishment, the law further defined the third paragraph regulation: the judicial work the crime mentioned in the preceding paragraph, shall be given a heavier punishment. Is not punishment, but to be given a heavier punishment!

Obviously, the Beihai police have violated Article 307th, constitute a means of violence or threat, prevent witnesses crime.

Four, Beihai police on four lawyers to take compulsory measures, right? Beihai police act in accordance with the law to protect the four lawyers as the legitimate rights of criminal suspects the?

According to the Beihai police report, the police on the two lawyers the implementation of criminal detention, the other two the implementation of residential surveillance. So, we can see the criminal procedure law of two kinds of compulsory measures is how the provisions of:

"Article sixty-firstThe public security organ for the criminals or suspects, if any of the following circumstances, can advance detention:
(a) is preparing to commit a crime, a crime or is discovered immediately after committing a crime;
(two) the victim or an eyewitness identification of his crime;
(three) found evidence of a crime in the side or residence;
(four) after the crime attempted to escape or Dutch act, the fugitive;
(five) the destruction, falsifying evidence or collusion possible;
(six) does not say real full name, address, identity is unknown;
(seven) there are people who commit crimes, crime, gang crime has great suspicion of."

According to the legal provisions, the suspect criminal detention, the first condition is, the criminals or suspects, and must have seven sets of circumstances. In this case, two detained lawyers are lawyers local law firms, the crime allegedly occurred in half a year ago, but not what major criminal, I don't want to be here and each control, but be sure, two lawyers in the circumstances of the crime does not meet any of the so-called case for the seven conditions in. If a deep dark law lawyers can be arbitrarily use coercive measures, criminal detention to the police, the restriction of personal freedom of citizens constitutional rights of criminal coercive measure how random.

The other two lawyers, using the coercive measures of surveillance of residence. But after the so-called residential surveillance, his family could not find him, his lawyer also don't get to see him, he is certainly by the public security organs to shut up. This is what kind of behavior?

Residential surveillance shall be specified in the law is. The criminal procedure law:

"By the criminal suspect, defendant residential surveillance shall observe the following provisions: 1, without the approval of the organ executing, shall not leave the place, of no fixed abode, must not leave the house without approval. 2, without the executing organ batch preparation, not to meet with others. 3, at the arraignment in custody. 4.

"The Supreme People's court. The Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, Law Committee of the NPC Standing Committee on the implementation of the criminal procedure law" twenty-fourth article: "criminal suspects, defendants with lawyers do not need approval from the. "

From these two provisions can be seen, if the defendant, criminal suspects have fixed all, surveillance residence is its domicile. Of course he can and his family live together, and can be freely to meet his lawyer. Without shelter, only need to specify the domicile, literal meaning as residential surveillance, is you live, my monitor, rather than me will you shut up.

So, in this case, two detained lawyers in Beihai have no fixed abode? I don't believe it. Be sure to have. Then, as the two lawyers under residential surveillance why his family and lawyers can not find him? Certainly by the public security organs to "residential surveillance", the loss of personal freedom. But the residential surveillance in clear violation of the provisions of the criminal procedure law and the six ministries, illegal restriction of his freedom of the person, it is a crime, in violation of the provisions of article 238th of the criminal law, constitute the crime of illegal detention.

The two lawyers were detained on criminal charges, two lawyers "residential surveillance", according to the "law" the third paragraph thirty-seventh: "lawyers in litigation activities due to suspected crime lawfully detained, arrested, detained, arrested authority should be in detention or arrest, after the implementation of the twenty-four hours to inform the lawyer's family, the law firm and the lawyers' Association", the police informed at the specified time? No. According to the law of criminal procedure, the police should arrange the meeting in five days? No, if according to law, lawyers need not approved levy on to meet with the criminal suspect, do you, No.

By the analysis, the case who is not a crime, be completely bared there and then?