The defense means taking a side, presenting reasons or facts to defend it and denying the correctness of the plaintiff's complaint in court. China's defense is divided into three ways: self-defense, entrustment and designation. Below I bring you the opinions of defense lawyers for your reference!
defense lawyer's opinion Fan Wenyi
People's Court of Wanli District, Nanchang City:
Respected Judge Wei Hongli and Judge Zuo Jinna:
This lawyer was entrusted by Sun Qinqin, the wife of the defendant in the bribery case of Liu Xpei, and confirmed by him, 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 in the proceedings, some courts still try their best to obstruct and are very reluctant. On this issue, your court and the court consciously respect the law and protect the defendant's right to defense, which should be affirmed.
after learning about the litigation process in the earlier part of this case, I am very sorry to find that there are many cases in your court during the trial of this case that there are no basis for the law or laws are not complied with. Because of my duty as a defender, I have to raise it with your court and the judges.
1. Your institute has no jurisdiction over Liu Xpei's bribery case.
None of the criminal acts or results that Liu Xpei was accused of occurred in Wanli District. The bribery case of Liu Xpei, which was prosecuted by Wanli District Procuratorate and appointed by Nanchang Intermediate People's Court (the court record was appointed by the Intermediate People's Court on August 9, 2113, and the presiding court later explained to our lawyer that it was appointed by the Intermediate People's Court), is not an independent case. Among the criminal facts accused in the indictment, none of them was committed by Liu Xpei alone, and all of them committed bribery with others. That is to say, this case is clearly a crime with * * *. We 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 various district and county courts under Nanchang City, and they have been heard in court.
article 13 of the Supreme People's Court's interpretation on the application of the criminal procedure law clearly stipulates:? If one person commits several crimes, * * * the same crime and other cases that need to be tried together, and one of them or one crime belongs to the jurisdiction of the people's court at a higher level, the whole case shall be 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's Criminal Procedure Rules also clearly stipulates:? One person commits several crimes, * * * the same crime and other cases that need to be tried together. As long as one of them or one crime 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 mandatory jurisdiction provisions is not only the need to find out the facts of this case, but also the consideration from the perspective of saving judicial resources, and it is also the minimum judicial fairness consideration for accomplices. According to the current trial of illegal cases, the situation of different trial levels in the same case is equivalent to depriving Liu Xpei and others of their substantive right of appeal.
Therefore, your court's trial of this case is a serious procedural violation. Undoubtedly, all trial activities under serious procedural violations are illegal.
It is a serious violation of the law whether the decision to prosecute and try cases by others is made by Nanchang Procuratorate and Nanchang Intermediate Court, or by provincial judicial organs, even higher authorities or leaders. As an executing agency, your hospital is hard to blame, and the judge in charge of the case is the direct executor of the illegal act, and it is bound to bear the legal responsibility for the illegal trial.
In addition, it is learned that Huang * Xia, the executive vice president in charge of criminal trial in your hospital, once served as deputy procurator-general in Wanli District Procuratorate, and participated in the investigation of Liu * Pei's bribery case, and now he is in charge of criminal trial in your hospital. Our defender has no definite evidence at present, but if so, it is obviously inappropriate for your court to hear the case again.
Liu * Pei's other defense lawyers also raised objections to the jurisdiction of your hospital. On July 4th, the presiding judge explained to our lawyer that your hospital also reported to Nanchang Intermediate People's Court in writing, and Nanchang Intermediate People's Court only maintained the designation of your jurisdiction orally, not in a 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, but the information they got was that Nanchang Intermediate People's Court did not specify it!
This lawyer once again puts forward written opinions on jurisdiction, and emphasizes that the illegal behavior of the superior court cannot be the reason for the illegal trial of the lower court, and the members of the collegial panel hearing this case are undoubtedly the direct responsible persons for the illegal trial. As a defense lawyer, I will exercise all the right to sue and appeal against serious violations of the law in your hospital.
2. Your court is under illegal jurisdiction, and there are many illegal acts or serious dereliction of duty in the forced trial.
(1) On the evening of April 6th, 2112, Liu Xpei was taken away from Pearl Hotel in Changsha, Hunan by investigators from Wanli Procuratorate, and was taken back to Wanli Procuratorate the next day. The legal documents in the case file show that Liu Xpei was only criminally detained on April 23 of the same year. That is to say, from April 6 to April 23, for seven days, Liu Xpei was illegally detained in the interrogation room of Wanli Procuratorate by the investigation organ and staff. Liu Xpei repeatedly emphasized this serious illegal or even criminal behavior in the trial, but your hospital did not find out.
(2) Your court once called the participants in the proceedings to watch some simultaneous video recordings of the trial (it should be all video recordings), but Liu Xpei, as the direct party, was not involved, which seriously violated Liu Xpei's litigation rights and made the exclusion of illegal evidence even go 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 and coercion was not substantially examined.
(4) Failing to serve the defendant with a summons to open a court session in accordance with Article 182 (3) of the Criminal Procedure Law, which makes the defendant have no necessary preparation time for the trial.
(5) Your court heard the case on October 31, 2113, and it was not until July 3 of the following year that you took the trial transcript 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 211 of the Criminal Procedure Law and Articles 238 and 239 of the Supreme Court's interpretation of the application of the Criminal Procedure Law.
(6) The court refuses the defense lawyer to consult and copy these important litigation documents that your court submitted to the higher court for approval to extend the time limit or the public prosecution agency supplemented the 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 think 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 records:? Liu * Pei's intentional injury case? If it is a clerical error, our lawyer can understand; If you want to use fabricated ones? Intentional injury case? To prevaricate illegal designation is very barren.
To sum up, my lawyer's opinions are as follows:
First, release Liu Xpei immediately or change compulsory measures, because this case is not only seriously illegal in procedure, but also more barren in entity. One less day in custody, one less passive point.
2. Return the case to the public prosecution organ or Nanchang Intermediate People's Court immediately. If the case is shelved in your hospital for one day, the illegal state will last for one day; After being sued 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 judges, but judges must also respect the law as the only boss. We also know that in a bad rule of law environment, a judge's boss may not be the law or not mainly the law. But a judge who willfully disregard for human life and perverts the law is doomed to have no good result. Please remember: In the motherly eyes of law, everyone is the whole country? (Montesquieu).
this is a salute from the legal person.
Defender of Liu * Pei:
Lawyer Liu Zhiqiang of Shaanxi Hongrui Law Firm
July 17
Defense Lawyer's Opinion Fan Wener
Economic Investigation Brigade of a certain county public security bureau:
In the case of Li's alleged contract fraud, Anhui Zhibang Law Firm accepted the entrustment of his relatives and appointed me as his defense lawyer in the investigation stage. On February 29, 2112, he was not arrested because of insufficient evidence. On the same day, your bureau took measures to obtain bail for Li, and it has been more than three months now.
the second paragraph of article 77 of the criminal procedure law stipulates that? 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 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 113 of the Procedures for Handling Criminal Cases by Public Security Organs. The public security organ shall not interrupt the investigation of the case during the period of bail pending trial, and the criminal suspect who is released on bail pending trial shall change the compulsory measures or lift the bail pending trial in time 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 point of view of the defender, it is not a question of insufficient evidence, but whether it constitutes the crime. During the arrest procedure, the defender has submitted a written lawyer's opinion to the county procuratorate, which elaborated that this case does not constitute the crime of contract fraud. 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 again.
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 confessions of the suspects involved have been obtained. The victim's (accuser's) statement 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 keeps a copy of the Car Purchase Agreement). I think your bureau should have mastered the information about the transfer and transfer of the vehicles involved. Therefore, the defender believes that the main evidence of this case should be basically collected. If this is still not conclusive, time may not be able to change all this.
In practice, some cases that are released on bail at the investigation stage are not complicated, and it is not difficult to obtain evidence, and they are often delayed until the expiration of the bail pending trial: they are either transferred, or the case is withdrawn, or even dropped. Even after the bail pending trial, it was changed to residential surveillance measures and continued to delay. Defenders believe that these acts are against the spirit of the law, which not only damages the prestige of the public security organs, but also harms the legitimate rights and interests of the parties: the parties cannot get the final judicial treatment results as soon as possible, and they are in an unstable state for a long time.
belated justice and injustice. The defender requests your bureau to investigate the case as soon as possible according to law, or transfer it to the procuratorate for review and prosecution and court trial; Or withdraw the case and return Li' s innocence. Please think carefully about the above opinions and look forward to your reply as soon as possible.
To Li's defender: Lawyer Li Jun
March 11
Opinion of Defense Lawyer Fan Wensan
Dear Prosecutor:
Henan Guoji Law Firm accepted the entrustment of Wang Moumou, the spouse of the suspect Wang, and obtained Wang's consent to appoint Zhang Shengli as the defense lawyer in the case of Wang's alleged traffic accident according to law.
The defense lawyer listened to the client's introduction in detail, met with Wang in accordance with the law, inspected the scene of the traffic accident with the client and his relatives, and submitted relevant defense documents to the traffic police, so as to get a brief understanding of the case. The traffic accident certificate was studied in detail, and a review was filed in traffic accident responsibility confirmation according to law. Although the defense lawyers can't fully understand the case in the public security investigation stage, based on the particularity of traffic accident cases, the traffic police department of Xingyang City has concealed the core facts, wrongly identified the responsibility for the accident, seriously violated legal procedures and other issues. Based on Article 86 of the Criminal Procedure Law of the People's Republic of China, the following opinions are put forward:
1. The facts in the road traffic accident identification book made by the traffic police department of Xingyang City are unclear or deliberately confused. It is unacceptable to arbitrarily and illegally aggravate the responsibility of the driver who caused the accident.
As far as the basic facts are concerned, the intersection of the accident belongs to the intersection of the main road and the branch road, and the octagonal red background and white characters are set at the north and south intersections of the branch road, that is, the two intersections where the victim An Moumou passes north and south? Stop? Warning traffic signs.
but strangely enough, in the accident certificate Zheng Gongjiao Zi (2115) No.11147, about? Road conditions? But there is no record or identification of these two roads set up at the north-south intersection? Stop? Word traffic warning sign! This is obviously unclear!
actually, according to the road traffic laws and regulations and the national standard of traffic signs, at this intersection, it is the motor vehicles on the main road that enjoy the priority right of way according to law.
On the other hand, even according to Item 2 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 the law, and let the right road come first? That is to say, even if you ignore it? Stop? Word warning signs, when the accident happened, those who enjoyed the priority right of way according to law did not belong to the victim, but to the motor vehicle driver Wang Xiang.
It is precisely because the victim violated the traffic rules and forcibly seized the road that the traffic accident happened. The accident happened in the northern half, just on the right side of the applicant An Moumou from south to north.
so, in all aspects, it is neither objective facts nor laws and regulations that the victims identified by the traffic police department of Xingyang City have the right of priority? Basically, it is a deliberate confusion of facts, and it is arbitrary and illegal to determine that the victim has the right of way first.
second, according to the annex of "Detailed Rules for Roads in Henan Province"? Classification of fault behavior? In Articles 14, 15 and 44, the respondent An Qingchen violated 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 71 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China? And the fault behavior classification table? Articles 14, 15 and 44 in Chinese belong to the type of active behavior fault and should bear the main responsibility.
The Detailed Rules for Roads in Henan Province is formulated by the local public security organs expressly authorized by the Ministry of Public Security, and it is formulated according to the laws and regulations on road traffic. Is it a clear and specific responsibility determination provision? Its more important significance is also a restriction on the administrative power of traffic police!
however, the confirmation of the accident involved stated that