Dear presiding judge and judge,
Entrusted by Beijing Dacheng (Taiyuan) Law Firm, Xu Jinhong was appointed as the second-instance defender of the defendant Zhao's alleged bribery case. After accepting the entrustment, the lawyer carried out a series of work such as marking papers and meeting. Defenders believe that the first-instance judgment found that the defendant Zhao constituted the crime of accepting bribes, with unclear facts, insufficient evidence and wrong nature; Request the court of second instance to declare the defendant innocent according to law. In order to safeguard the legitimate rights and interests of the defendant, the defender put forward the following defense opinions.
1. Yang's entrustment to the defendant Zhao Anfeng is an agent transfer, a civil legal relationship, not a matter prohibited by law, and does not belong to the jurisdiction of criminal law.
In this case, Yang was entrusted by China Resources Power Hubei Company to sign an agency agreement, and the agent was transferred to the defendant, and the defendant was transferred to Wang or Gao; The defendant belongs to one of the trustees. This is a civil multi-agent behavior, which does not belong to the adjustment scope of criminal law.
(1) Yang signed an agency agreement with China Resources Electric Power Hubei Company, and China Resources Electric Power Hubei Company, as Party B, was responsible for coordinating the relationship between the mine and the railway and improving the cash rate of China Resources Electric Power Hubei Company's coal transportation. According to the fact that the cash rate of Lu 'an coal has increased to 80%, China Resources Power Hubei Company pays 40 yuan for the coordination of Yang's business per ton.
Yang entrusted Zhao Anfeng, the defendant, to handle the case on his behalf, and verbally agreed to pay the fee per ton 12 yuan. This behavior belongs to civil sub-entrustment. The defender believes that it cannot be said that the fee received by Yang is the business coordination fee, while the defendant is the benefit fee, which belongs to the crime of bribery; The legal nature of the same thing should be uniform.
The trial in the first instance found that Yang charged an agency fee of 5 million yuan for the business of Huarun Electric Power Hubei Company. Zhao Anfeng accepted Yang's entrustment and charged an agency fee of per ton 12 yuan, which is not prohibited by law; Zhao Anfeng transferred the drug to Wang on the condition of 1 1.5 yuan/ton, and received the price difference of 0.5 yuan/ton from it; Entrust the agent to Gao at the price of 9.5 yuan/ton, and charge the difference of 2.5 yuan/ton from it. Defendant Zhao Anfeng should be an intermediary behavior like Gao's behavior.
(2) Judging from the fees charged, the defendant Zhao's behavior also belongs to intermediary behavior.
The facts that have been ascertained and identified in this case are as follows: Yang collects the business coordination fee per ton of 40 yuan; Zhao accepts Yang's entrustment and collects the agency fee per ton 12 yuan; Zhao also entrusted the agent to Gao at the price of 9.5 yuan/ton (see Gao 20 12 12 02 04 inquiry record: Zhao paid me the coal service fee at the rate of 9.5 yuan/ton), and collected the difference of 2.5 yuan/ton from it.
Chair Zhao 0.5 yuan/ton difference will transfer the agent to Wang, and Wang will accept the agent at the price of 1 1.5 yuan/ton.
As can be seen from the above basic case, Zhao Anfeng has no reason to run his own business, but gave most of his income to others; It is also concluded that Zhao Anfeng's role is limited to intermediaries.
Inferred from the amount of Zhao accused in the indictment and the determination of the court of first instance, although the public prosecution agency and the court of first instance did not clearly indicate the nature of Zhao's acceptance of Yang's money, in fact, they all determined that most of Zhao's acceptance of Yang's money was not a bribe, but a middleman.
However, both the public prosecution agency and the court of first instance believe that another part of the money received by Zhao from Yang belongs to bribery.
Defenders believe that there is no sufficient legal basis to identify part of the same money as an intermediary fee and the other part as a bribe.
Second, Zhao Anfeng's behavior towards Wang should be equal to that of Gao's civil agent.
The court of first instance found that Zhao accepted another part of Yang's money as a bribe, mainly based on denying Wang's testimony. Defenders believe that the court of first instance did not recognize Wang's testimony, accepted the defendant's confession in court, and found that the defendant took bribes of more than 700,000 yuan by taking advantage of his power. The reason is not sufficient, and it is not fully measured by the evidence of the whole case.
(1) Zhao's pre-trial interrogation record is illegal evidence and should be excluded.
Defenders believe that Zhao was interrogated in the interrogation room of Taiyuan City Procuratorate from 23: 55 on February 5 to 65: 00 on February 6.
The reasons are as follows: Article 8 of "Confessions obtained by extorting confessions by torture and other illegal methods should be excluded" issued by the Supreme People's Court in October 20 165438+2 1 0/0 stipulates that confessions collected by extorting confessions by torture or illegal methods such as freezing, hunger, drying, baking and fatigue interrogation should be excluded.
The case-handling organ brought Zhao from Zhengzhou to Changzhi and from Changzhi to Taiyuan. After a long journey, the defendant was already in a state of considerable fatigue. In this case, he was interrogated in the middle of the night and early in the morning. This time is the time for normal people to sleep, which belongs to fatigue interrogation and should be ruled out.
The court should accept Zhao's confession in court trial.
(2) Admissibility of Wang's testimony
1. Because the defendant Zhao Zaiwang has shares, both parties trust him, and the agency relationship is transferred in cash. Regarding the cash of RMB 6,543,800,000 yuan that Yang gave Zhao, the court of first instance had no other physical evidence, but both Yang and Zhao recognized it and the court of first instance confirmed it.
In the same case, the court of first instance denied that there was no basis for cash transactions recognized by both Zhao and Zhao.
2. Logically speaking, if Zhao has the right to limit his own use, it is totally unnecessary to give Gao 1.3 million yuan in 2008. This also shows that in the whole process, Zhao is only an intermediary, and Zhao found a third-party intermediary for Wang, which is logical and reasonable.
Defenders believe that Zhao's transfer of Wang as an agent should be consistent with Gao's behavior.
3. The court of first instance found that the defendant Zhao had insufficient evidence of accepting bribes.
The first-instance judgment held that the defendant Zhao took advantage of his position as a clerk in the office of the state-owned Shanxi Luan Group Coal Transportation and Marketing Corporation to illegally accept other people's property and seek benefits for others, which constituted the crime of accepting bribes and the evidence was insufficient.
Defenders believe that the court of first instance found that the defendant constituted a crime of accepting bribes, not only to prove that Zhao had received money, but also to have sufficient and reliable evidence to prove that Zhao used his power or took advantage of his power or position. Defenders believe that the court of first instance has no sufficient and conclusive evidence to prove this for the following reasons:
(1) About the identity of the defendant Zhao.
The defendant does not have the status of national staff, which is the main component of the crime of accepting bribes.
The subject of the crime of accepting bribes must be state functionaries, but Zhao Anfeng is not a state functionary.
According to the employee registration form of Lu 'an Environmental Protection Energy Development Co., Ltd. provided by the prosecution on September/0/0, 2009, the defendant in this case worked in the transportation and marketing corporation of Lu 'an Environmental Protection Energy Development Co., Ltd., transferred to the company in September, 2009, and signed a labor contract relationship with the company with the insurance number of 1523000076. Obviously, from 2007 to 2008, Zhao Anfeng was not a national staff member, but a temporary worker.
(2) Defendant's position: The defendant did not take advantage of his position, nor did he take advantage of his position or position to seek benefits for others.
1. The defendant did not take advantage of his position.
Zhao Anfeng's job responsibilities: Zhao Anfeng is a clerk in Zhengzhou Office of Transportation and Marketing Corporation, whose duty is to grasp the transportation information in time, reflect the transportation information to the railway department according to the company's instructions, and reflect the transportation demand to the railway department; Provide accurate information for the rational use of empty cars.
According to the basic situation found in the first instance, it shows that improving the coal cashing rate requires not only the coordination of Zhengzhou Railway Bureau, but also the coordination of Changzhi North Station, and the defendant Zhao, as a clerk of Zhengzhou Office of Transportation and Marketing Corporation, obviously does not have the convenience of his position.
First of all, the testimony of witness Gao also fully shows that the defendant did not use his power.
Changzhi North Station belongs to Changzhi Locomotive Depot of Zhengzhou Railway Bureau. The station is mainly responsible for the loading arrangement and delivery of coal transported by Lu 'an Mining Bureau. All coal shipped from Lu 'an must be loaded from Changzhi North Station before it can be delivered to all users. Therefore, in order to improve the coal cashing rate, the coordination of Changzhi North Station is one of the links. I coordinated Changzhi North Station through Lumou. My cost to land is about 900,000 yuan, which is paid at the rate of 8 yuan/ton. I kept it at 1.5 yuan/ton, and I kept it at around 227 1 14 yuan. (See transcript of high inquiry)
The inquiry records of Gao 201June 5, 3 prove that there are many reasons for the cashing rate of Lu 'an electric coal in the power plant. In addition to the transportation and marketing department of Lu 'an Mining Bureau asking Zhengzhou Railway Bureau for cars, Zhengzhou Railway Bureau admitted that there is another key point, namely Changzhi North Station. Even if there is a car approved by Zhengzhou Railway Bureau, Changzhi North Station may not be able to start on time for you, and it is easy to be replaced by other users.
Secondly, the testimony of two witnesses of Zhengzhou Railway Bureau fully proves that the defendant did not use his power.
According to the testimony of witness Bu (Director of Cargo Engineering Department of Zhengzhou Railway Transportation Department) on February 25th, 20 12, the daily plan was automatically approved by the computer according to the relevant requirements of the Ministry of Railways. Organize the transportation volume of major customers every month according to the plan. The demand for daily production is put forward by the production enterprises and sent to the railway bureau through the major customer system of the Ministry of Railways. The railway bureau is organized by the transportation dispatching department, and then reaches each station, requiring the Mining Bureau to report in a balanced way.
According to the witness Xu Peiying's testimony on February 25th, 20 1265438, regarding the loading organization process of Jincheng and Lu 'an coal mines in Shanxi, the mine submitted an application for vehicles to the railway bureau every day, and the railway bureau determined the loading destination of each bureau according to the relevant provisions of the state on ensuring the transportation of key materials and key enterprises and the relevant requirements of the Ministry of Railways, and then it was examined and approved by the computer.
Obviously, improving the coal cashing rate is the purview of Zhengzhou Railway Bureau and Changzhi North Station, and it is approved by computers. The defendant is not a member of Zhengzhou Railway Bureau and Changzhi North Station at all, so he has no right to use it.
2. The defendant did not take advantage of his authority or position to form convenient conditions.
According to the provisions of the Notice of the Supreme People's Court on Printing and Distributing the Minutes of the 2003 Symposium on the Trial of Economic Crime Cases by National Courts, the "conditions formed by taking advantage of one's authority or position" as stipulated in Article 388 of the Criminal Law means that although there is no subordinate or restrictive relationship between the actor and the national staff he uses, the actor has a certain working relationship by taking advantage of his authority or position. For example, between state employees of different departments in the unit, between state employees of higher and lower units without job affiliation or job restrictions, and between state employees of different units with work contacts.
Defenders believe that understanding this article must meet the following requirements, and the interpretation cannot be expanded arbitrarily. "Conditions formed by taking advantage of one's own authority or position" means that although there is no subordinate or restrictive relationship between the actor and the national staff he uses, the actor has a certain working relationship by taking advantage of his authority or position.
First of all, I should use the influence of my authority or position. We believe that Zhao is an ordinary and grass-roots staff member in Zhengzhou office. Judging from the current situation in China, anyone with common sense can assume that it will not affect others.
Secondly, the actor has a certain working relationship with the national staff he uses. Here, if Zhao wants to take advantage of the working relationship, then there must be exploited state employees in this case, and it must constitute a crime of accepting bribes with the exploited state employees.
In this case, neither the public prosecution agency nor the court of first instance has found out which "state functionary" Zhao was used by.
For example, the court clerk, although he works in the court, will have contact with the judge in his work, but he has no right to decide the case. If he accepts money to seek illegal interests for the client in the case, it constitutes a crime of accepting bribes. Only when he cooperates with the judge can it constitute a crime of accepting bribes. If he accepts the case, transfers the case to a lawyer and collects the agency fee himself, his behavior does not constitute a crime.
Therefore, under the circumstances that Zhao did not have the convenience of his position, and there was no evidence to prove that Zhao took advantage of others' position, it was completely subjective to infer that Zhao Li used his authority.
This also shows that in July 2007, Zhao entrusted the matters entrusted by Yang to Wang, and Wang entrusted this matter to Kong, the general manager of xiang yuan Energy Company, which specializes in coal operation. Reasonable and logical, the defendant is an intermediary.
(III) According to the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Bribery in 2007, employees of companies, enterprises and other units who exchange their labor for reasonable remuneration within the scope permitted by laws and policies do not belong to taking advantage of their positions to accept bribes, but are legal acts rather than crimes. If you use your professional skills to provide labor and technical services to other units in your spare time and get paid, it is not considered a crime.
20 13 10 9, the Supreme People's Court's "notice on establishing and improving the working mechanism for preventing criminal misjudged cases" emphasizes the strict implementation of legal proof standards and the strengthening of evidence review mechanism. For cases with insufficient conviction evidence, we should adhere to the principle of never suspecting a crime, declare the defendant innocent according to law, and not belittle the judgment of "leaving room".
Defenders believe that the crime of accepting bribes is objectively manifested as taking advantage of one's position to ask for other people's property, or illegally accepting other people's property to seek benefits for others. The essential feature of the crime of accepting bribes is that the actor does not have a corresponding position, or does not take advantage of his position to accept property, which does not constitute the crime of accepting bribes. Defendant Zhao Anfeng found a qualified agent for Yang, and made him successfully complete the agency task and collect the agency fee, which was not prohibited by law, but in line with the original intention and purpose of criminal law legislation. The intermediary fee charged by the defendant as an intermediary should not be considered as bribery.
4. The evidence accepted by the court of first instance does not conform to the rules of criminal evidence.
The indictment of the People's Procuratorate of Qingxu County on May 3, 20/KLOC-0 shows that from July 2007 to June 2008 10, the defendant Zhao accepted Yang's so-called benefit fee of 2,077,204 yuan; Give 1 175700 yuan to his classmates to coordinate the relationship between Changzhi North Station, and 90 1504 yuan will be his own.
The first instance of Qingxu Procuratorate found that Zhao charged Yang a benefit fee of 2,077,204 yuan; However, it is denied to give a high 1 175700 yuan as a benefit fee. What is the reason for defining 90 1504 yuan as a benefit fee? The same is Yang's 2077204 yuan, and the high 1 175700 yuan is not a benefit fee. What is the legal basis for the rest of the money as a benefit fee?
Without finding out the case, the court of first instance cooperated with the procuratorate in handling the case, which completely violated the provisions of Article 23 of the Supreme People's Court 20131"Illegal methods such as extorting confessions by torture shall be excluded": the case shall be tried in strict accordance with legal procedures and responsibilities, and public security organs and people's procuratorates shall not participate in joint handling of the case. The accepted evidence does not conform to the rules of criminal evidence, and it is subjectively presumed that the defendant Zhao received money as a benefit fee. The specific facts and reasons are as follows:
(1) Yang's testimony is inadmissible.
Yang's testimony: ... I asked Zhao to coordinate, and he has the ability to do this (improve the cash rate of coal shipments).
The defender believes that Yang's testimony cannot be accepted. According to article 12 of the Supreme People's Court's Provisions on Several Issues Concerning Examining and Judging Evidence in Handling Death Penalty Cases, the speculative, critical and inferred testimony of witnesses cannot be used as evidence. In addition, Yang's testimony is inconsistent with that of other witnesses in higher education, so it cannot be accepted.
In this case, what Yang entrusted to the defendant was not something that the defendant was able to accomplish.
(II) Testimony of witness Bu (director of freight engineering department of Zhengzhou Railway Transportation Bureau) on February 25, 20 12, and testimony of witness Xu Peiying on February 25, 20 12. On behalf of Lu 'an Group, Zhao went to our bureau (Zhengzhou Railway Bureau) to handle related business and coordinate the certifiable contents of related matters.
Defenders believe that the court of first instance took the testimony out of context, completely ignored the defendant's favorable testimony, and intercepted it against him. The testimony can't prove that Zhao communicated with them about the identification of the car.
1. Zhengzhou Railway Bureau staff have no right to define Zhao's job responsibilities, which is ultra vires.
2. In these two testimonies, the witness emphasized that "the Railway Bureau (Zhengzhou Railway Bureau) determines the loading destination of each bureau according to the relevant provisions of the state to ensure the transportation of key materials and key enterprises and the relevant requirements of the Ministry of Railways, and then it is verified by the computer", which just proves that the loading destination is verified by the computer, and no one can replace it.
The testimony of these two witnesses proves that Zhao did not find them for this matter, that is to say, Zhao did not use the working relationship, and because of the computer approval, there was no working relationship to use.
If the court of first instance wants to use it as one of the evidences of Zhao's crime of accepting bribes, it must be able to prove that Zhao came to them because of Yang. If Zhao has contact with them only because of other jobs, it has nothing to do with this case.
(3) About Zhao's pre-trial confession.
The court of first instance accepted Zhao's pre-trial confession as the basis for determining his bribery, which was illogical and belonged to the presumption of guilt.
1. About Zhao's audio and video recording, it shows his job responsibilities, reflects the transportation demand of Lu 'an to the relevant railway departments, and coordinates and approves the total number of trains.
Defenders believe that the defendant has the above job responsibilities, which does not mean that the defendant has coordinated with the relevant departments on Yang. These are two completely different concepts. The court of first instance held that the defendant must use it if he has the power, which is completely contrary to logic. Is it necessary for a court judge to have the power to judge cases? It's a complete presumption of guilt!
2. Zhao also stressed in his confession: When I ask you, I will call to ask Gao. Gao said yes, but he had to ask someone else.
This fully shows that the defendant was originally a third-party agent for Yang and acted as an intermediary himself.
Defender thinks: Zhao has no right to decide that Zhengzhou Railway Bureau recognizes the departure of Che and Changzhi North Station, and he has no position; The court of first instance only has sufficient evidence to prove that the defendant Zhao used his working relationship to find other state employees with authority because of Yang, rather than just proving Zhao's work scope. If you can't prove it, you can't convict.
(4) Other evidence provided by the prosecution and accepted by the court of first instance to prove the scope of work of the defendant Zhao.
The defender believes that even if Zhao has contact with Zhengzhou Railway Bureau in his work, it does not necessarily mean that Zhao seeks benefits for Yang, and the court confuses the concepts of the two; Only when Zhao made a special request to Zhengzhou Railway Bureau to provide vehicles for China Resources Power Hubei Branch, Zhengzhou Railway Bureau used its power to admit that Zhao could form a bribe with Zhengzhou Railway Bureau staff.
However, in this case, no institution or individual proved, admitted or knew that Zhao Wei Huarun Electric Power Hubei Branch had contacted any national staff.
To sum up, the defender believes that the court of first instance did not form a complete chain of evidence and unilaterally believed that the defendant Zhao accepted the money. Even if Zhao doesn't have a job position, he must have taken advantage of the convenience of others. However, in this case, there are no state employees who have been used. The court of first instance did not rule out reasonable doubt, but in this case, it was precisely the defendant who found a third party and he was the middleman.
5. It is illogical for the first-instance judgment to find that Zhao Anfeng constitutes the crime of accepting bribes.
The defendant agreed and actually attributed most of the business expenses to others, which fully showed that Zhao Anfeng did not take advantage of his position.
If the defendant uses his position to seek benefits for others, there is absolutely no need to give money to others; It is neither reasonable nor logical to use one's own authority to benefit others.
The defendant paid Gao 65,438+300,000 yuan and Wang 700,000 yuan, which fully showed that the defendant had no right to use it.
The logical reasoning of the court of first instance is that Zhao Anfeng received money. Zhao Anfeng is an employee of Zhengzhou Office of the Transportation Company of Shanxi Luan Group Coal Transportation and Marketing Corporation, so Zhao Anfeng used his power to constitute the crime of accepting bribes. The defender thinks this is subjective.
(1) The money collected by Zhao Anfeng should be an agency fee, regardless of the amount.
Even if the court denied that Zhao had given Wang more than 700,000 yuan, the nature of Zhao's collection should not depend on the amount of money compared with Yang's 5 million yuan business coordination fee income.
First of all, Yang charges business coordination fees and high agency fees. The same fee, Zhao Anfeng is characterized as a benefit fee, which has no legal basis.
(2) Logically speaking, if Zhao has the right to use it, there is absolutely no need to give it more than 6,543,800 yuan+0.3 million yuan.
According to the logic of the first-instance judgment, in 2007, Zhao used his authority to help Yang improve the cash rate of coal transportation, but in 2008, he wanted to find high coordination and gave him 6,543,800 yuan more, which was illogical.
From this, it can be concluded that Zhao also coordinated through others in 2007, instead of taking advantage of his authority.
To sum up, the defender believes that the existing evidence has shown that the defendant Zhao does not belong to the marketing department of Lu' an Group; It has no right to sign contracts, arrange transportation plans, arrange requested cars, arrange approved cars and arrange shipment. The defendant is not a member of Zhengzhou Railway Bureau, and he has no authority to be in charge, responsible and undertake the vehicle identification work. The defendant has no right to use it because his unit or himself has no subordinate or restrictive relationship with Zhengzhou Railway Bureau; The defendant also did not negotiate with any national staff of Lu 'an Group and Zhengzhou Railway Bureau on the redemption rate of China Resources Power Hubei Branch.
The testimony of witnesses Bu Xiaomin and Xu Peiying of Zhengzhou Railway Bureau also clearly shows that car recognition is the work of Zhengzhou Railway Bureau, and computer approval is not something that individuals can operate casually.
The defendant did take money from Yang, but it was only a middleman. He entrusted Yang's agent through Gao and Wang.
The existing evidence can't fully prove that Zhao An used his power. If the court can't rule out Zhao Anfeng's intermediary status, it can't come to the only conclusion that Zhao An used his power. If we can't rule out reasonable doubt, we can't assume that his behavior must belong to bribery.
To sum up, the defender believes that the first-instance judgment found that the defendant constituted the crime of accepting bribes, which belongs to unclear facts, insufficient evidence, qualitative errors, the principle of legally prescribed punishment for a crime and the principle of never suspecting a crime, and requested the court of second instance to declare the defendant innocent according to law.