In October, 20XX, Shi Xinliang, then director of the Grain Depot of XX City, XX Province (hereinafter referred to as the Depot), met Liu of XX Fishing Gear Store. After Shi Xinliang found Liu, he hoped that Liu would find the relationship with the XX Municipal Finance Bureau and pay a sum of money to maintain the warehouse. XX, XX, XX, went to Liu's fishing gear shop to buy fishing gear. Liu Xiangzhang mentioned this matter and immediately said that he could get money through connections. On XX, XX, XX, Shi Xinliang went to Liu's fishing gear shop to meet him with a report on applying for warehouse maintenance funds. Liu told Shi Xinliang that it is not easy to do things now. If you want to do things well, you must pay at least 300,000 yuan for activities. To this end, Shi Xinliang credited 300,000 yuan to the personal bank account provided by Liu. Soon, Liu asked Shi Xinliang to increase the amount of funds in the report from 7.5 million yuan to12.5 million yuan on the grounds of insufficient funds for activities. To this end, Shi Xinliang once again remitted 6.5438+0.55 million yuan to the personal account provided by Liu. In the financial audit at the end of the year, things were exposed. After the incident, Zhang Jinguo once absconded, and after being persuaded by his relatives and friends, he surrendered himself to the XX Municipal Public Security Bureau on XX, XX. After Zhang surrendered himself, he exposed the facts of other people's major crimes, which were confirmed by the public security organs. Explain that Liu gave all his money to himself and has been used to repay personal usury. Zhang Jinguo's confessions in many interrogations by public security organs are basically the same. On XX, XX, 20XX, when the public security organ interrogated Zhang Jinguo again, Zhang Jinguo overturned all his previous confessions and only admitted to taking some money. On XX, XX, XX Provincial People's Procuratorate filed a public prosecution with the People's Court of XX Province on suspicion of fraud, accusing the defendant Zhang Jinguo of committing fraud, amounting to 654.38+0.85 million yuan.
After meeting the defendant and consulting the case file, the defense lawyer obtained the following materials: (1) The witness (Liu's cousin) confirmed that when discussing this matter, Liu's daughter said that her father was old and sick, so she took the blame. Also did the work, let him take the fall for Liu. (2) Witness Shi confirmed that he had asked in person and said that Liu had only given himself some money. (3) The case file records that the public security organ asked Liu six times to confirm that all the defrauded funds were handled by him and all were transferred to personal accounts. (4) The records of fund transactions provided by XX Bank Savings Office confirm that all the funds remitted from this reserve have been transferred to Liu's account. After that, Liu withdrew some cash. (5) Witness Yang Wenlong confirmed that Zhang Jinguo had repaid the loan and interest totaling more than 450,000 yuan after the incident. (6) Witness Wang Shulin confirmed that Zhang Jinguo borrowed 800,000 yuan from him, which has not been repaid yet. The above materials confirm that not all the RMB 6,543,800+850,000 paid by the reserve is occupied by Zhang Jinguo.
Zhang Jinguo explained that the reason why he retracted his confession was that he was burdened with a heavy usury, which he has not repaid so far. In order to avoid creditors' recovery, he admitted against his will that he had taken all the money, wanted to hide in prison after being sentenced, studied law in the detention center, realized the seriousness of the problem and told the truth.
Defendant Zhang Jinguo entrusted Zhang Siyuan, a lawyer of XX Law Firm, as the defender on XX, XX. The court of first instance adopted the counsel's opinion and found that the defendant Zhang Jinguo's fraud amount was 650,000 yuan, which was a plot of surrender and meritorious service, and the punishment was mitigated according to law.
Attached:
1. Article 266 of the Criminal Law of People's Republic of China (PRC) stipulates that whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.
2. Paragraph 1 of Article 67 of the Criminal Law of People's Republic of China (PRC) stipulates that a person who voluntarily surrenders after committing a crime and truthfully confesses his crime is a voluntary surrender. Criminals who surrender themselves may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be exempted.
3. Article 68 of the Criminal Law of People's Republic of China (PRC) stipulates that criminals who have made meritorious deeds such as exposing other people's criminal acts and verifying them, or providing important clues to solve other cases, may be given a lighter or mitigated punishment; Those who have made significant meritorious service may be mitigated or exempted from punishment.
4. Paragraph 1 of Article 63 of the Criminal Law of People's Republic of China (PRC) stipulates that if a criminal has mitigating circumstances as stipulated in this Law, he shall be sentenced to a penalty below the statutory penalty; If there are several sentencing ranges stipulated in this Law, the penalty shall be imposed within the next sentencing range of the statutory sentencing range.
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Dear presiding judge and judge,
XX Law Firm accepted the entrustment of the defendant Zhang Jinguo and entrusted me to participate in the litigation as its defense lawyer. By reading newspapers and meeting with defendants, we have repeatedly studied the indictment of the procuratorate. Today, I participated in the court investigation and listened to the public prosecutor's public prosecution speech. We have a comprehensive, objective and true understanding of this case. The following defense opinions are hereby issued according to law:
1. The defendant defrauded 650,000 yuan, not 1.85 million yuan.
Defenders have no objection to the accusation of fraud by the public prosecution agency, but the amount of fraud is 654.38+0.85 million yuan, and defenders hold different views. The total loss of the victim was 6,543,850 yuan, but not all of it was occupied by the defendant Zhang Jinguo. After meeting with the defendant and consulting the case file, the following materials were obtained: (1) The witness (Liu's cousin) confirmed that when discussing this matter at that time, Liu's daughter said that her father was old and sick and let him take the blame. Also did the work, let him take the fall for Liu. (2) Witness Shi confirmed that he had asked in person and said that Liu had only given himself some money. (3) The case file records that the public security organ asked Liu six times to confirm that all the defrauded funds were handled by him and all were transferred to personal accounts. (4) The records of fund transactions provided by XX Bank Savings Office confirm that all the funds remitted from this reserve have been transferred to Liu's account. After that, Liu withdrew some cash. (5) Witness Yang Wenlong confirmed that Zhang Jinguo had repaid the loan and interest totaling more than 450,000 yuan after the incident. (6) Witness Wang Shulin confirmed that Zhang Jinguo borrowed 800,000 yuan from him, which has not been repaid yet. The above materials confirm that not all the RMB 6,543,800+850,000 paid by the reserve is occupied by Zhang Jinguo.
2. Zhang Jinguo's surrender and meritorious service can be given a lighter or mitigated punishment.
After the incident, Zhang Jinguo once absconded, and after being persuaded by his relatives and friends, he surrendered himself to the XX Municipal Public Security Bureau on XX, XX. After Zhang surrendered himself, he exposed the facts of other people's major crimes, which were confirmed by the public security organs. Paragraph 1 of Article 67 of the Criminal Law of People's Republic of China (PRC) stipulates that a person who voluntarily surrenders himself after committing a crime and truthfully confesses his crime is a voluntary surrender. Criminals who surrender themselves may be given a lighter or mitigated punishment. Among them, if the crime is minor, the punishment may be exempted. Article 68 of the Criminal Law of People's Republic of China (PRC) stipulates that criminals who have made meritorious deeds such as exposing other people's criminal acts, verifying them, or providing important clues to solve other cases may be given a lighter or mitigated punishment; Those who have made significant meritorious service may be mitigated or exempted from punishment. Zhang Jinguo surrendered under the persuasion of relatives and friends, and was able to truthfully confess his crimes. And there is an act of exposing other people's major criminal facts, which constitutes a major meritorious service. The defendant may be given a lighter or mitigated punishment.
To sum up, the defender believes that (1) the defendant constitutes a crime of fraud, but the amount of fraud is 650,000 yuan; (2) If the defendant surrendered himself and made significant contributions, he may be given a lighter, mitigated or exempted punishment. As the defendant's defense lawyer, I ask the court of first instance to make a fair judgment based on facts and laws, and give the defendant justice!
I am here to convey
People's Court of XX City, XX Province
Defender: Zhang Siyuan.
XX，XX，XX，XX
(239 pages)
Answer analysis
Knowledge points of this topic: lawyers speak in court,